The end of the states' case also would be an appropriate juncture for the two sides to entertain a new round of settlement negotiations, but neither side would comment on the likelihood of such activity. The Justice Department and nine other states settled the case in November. But Kollar-Kotelly has yet to rule on the settlement, which, as mandated by the Nixon-era Tunney Act, must be in the public interest. Settlement would appear unlikely, given the distance between the two sides over the extent of a remedy, Gavil said. Microsoft wants nothing more than what it accepted in the Justice Department settlement, while the litigating states are pushing for restrictions that would affect software code. They want Microsoft to distribute a second version of Windows with the so-called middleware removed and to give away for free the source code to the Internet Explorer Web browser, among other sanctions. The remedy proceeding, which moves into a fifth week as of Monday, is likely to go through May. During the approximately 15 weeks of original testimony, Judge Jackson found that Microsoft violated US antitrust law, and a seven-judge appeals-court panel upheld the core of his ruling: that Microsoft used illegal means to preserve its monopoly in Intel-based operating systems. Throughout its upcoming defense, as it did during the cross-examination of some witnesses for the states, Microsoft plans to show that the states' remedy is nothing more than a hodgepodge of sanctions endorsed by competitors, sources said. During the states' phase of the proceeding, Microsoft introduced evidence indicating that AOL Time Warner, Novell and Sun Microsystems had helped craft the states' remedy. "It really was a crazy quilt of the best things competitors could think of that they could do to tie Microsoft's hands, to hobble us so we can't compete," said Microsoft spokesman Jim Desler. "Coming up with that fantasy list and sticking it all together into what the states call a remedy, the states are risking untold harm to the PC ecosystem and the economy." The software giant also plans to introduce economic data and expert testimony explaining how the states' remedy would damage the health of the overall PC market and hurt consumers. To that end, Murphy is expected to exploit the mistakes made by economist Shapiro during Thursday's cross-examination. Microsoft also will attempt to show that the states, at the behest of competitors, are trying to expand the case into new markets where Microsoft is attempting to compete but has yet to secure a foothold, sources said. Some witnesses will argue that Microsoft's strategies in these new markets are untested and that competitors working through the states are using the company's past behavior to constrain the software giant in areas where the courts found no violation. And Microsoft plans to introduce third-party and company witnesses who will attempt to show that several of the states' provisions are technically unfeasible. On Wednesday, Appel testified for the states that Microsoft can in fact technically remove middleware, such as Web-browsing and media-playback software, from the operating system. He argued that in fact Microsoft has already done so with Windows XP Embedded, a version of the operating system meant to run on non-PC devices. During its portion of the case, Microsoft will challenge this conclusion and attempt to show that removing middleware would in fact break Windows, sources said.
Think it's all over? The antitrust case against Microsoft can still go back the to Court of Appeals, and then there's the European Commission's investigation... See ZDNet UK's DoJ/Microsoft News Section for the latest headlines.
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