If no agreed settlement of the Microsoft antitrust case is in the offing by Tuesday, Judge Jackson will issue his findings of law. Microsoft made an offer of settlement late last week, but this seems to have been rejected as inadequate by the government over the weekend. But although that suggests the judge will indeed be needing his black cap, details of the Microsoft proposal leaking out indicate that the company is willing to give quite a lot of ground in order to escape the noose.

Perhaps - it might on the other hand suggest that Microsoft is spinning up its offer desperately in order to play to the other court, the court of public opinion. That however would be a dangerous game to play, because it will be hard to withdraw concessions once they've been offered, and the ones that have reportedly been put on the table are pretty weighty.

According to the leaks, the company has offered OEMs some measure of source code access, allowing them to make some modifications to the configuration of Windows on the machines they ship. It's not clear how far this source access goes, and the government is said to think it doesn't go far enough, but this is still a potentially major concession. If it were applied OEMs would have the ability to ship alternative browsers, media players and so on, and they'd also presumably regain some control of the setup procedure and initial boot sequence.

Unless Microsoft proposes to place severe restrictions on what the OEMs can do in this area, it sounds like something that could grow into the reversal of the Microsoft "Windows Experience" programme. Alongside this, the company would offer versions of Windows without Internet Explorer integrated, and the offer is also said to cover all current and future versions of Windows.

Alongside this, the company is proposing that the settlement address, in some form, the carrot and stick use of price discrimination in order to pressure OEMs. Under the circumstances however this is going to be a tricky one for Microsoft to tackle in a proposal, because it still denies it does it, and one of the things it apparently wants out of the deal, aside form not being broken up, is to avoid having to admit guilt. So how do you say you're going to stop doing what you insist you don't do anyway?

Whatever, this oughtn't to be an insuperable problem, and if you put all of this together, you get a proposed settlement that concentrates largely on freeing the OEMs from Microsoft pressure and control. What it doesn't do is to tackle the issue of Microsoft's monopoly of the OS market, and this could be a sticker for both the government and the judge, who concluded this was a problem in his findings of fact. Microsoft is effectively proposing that it be allowed to retain control of the underlying operating system, and that competition take place on a level playing field on that platform. That's possibly not enough for the government, but from Microsoft's point of view it's a substantial concession. ®

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