WASHINGTON, Dec. 12 (UPI) -- Despite having to prematurely recess a hearing under parliamentary rules Wednesday, the Senate Judiciary Committee strongly criticized the proposed settlement in the antitrust case between software giant Microsoft and the Department of Justice.
Sen. Patrick Leahy, D-Vt., committee chairman, called the hearing to examine the five-year agreement.
Among other things, the deal calls for Microsoft to allow computer makers to install alternative software on their products, as well as provide programmers with vital details of how the Windows operating system interacts with other programs. The committee also wanted to examine a competing proposal put forward by nine states that originally joined DOJ in suing Microsoft over alleged anti-competitive practices concerning Windows.
As the committee wrapped up questioning of the first witness, Charles James, assistant attorney general for the Antitrust Division, Leahy said the hearing had to be recessed at least one day. An unidentified senator used Senate rules to object to the hearing's late start while bills were being debated in the full chamber, he said. Scheduled judicial confirmation proceedings probably would extend the hearing's recess beyond Thursday, he said.
Before the unexpected interruption, however, committee members' opening statements left no doubt the deal failed to satisfy their concerns. Leahy said he wants the antitrust case finished, but only if it is clear what the results are.
"I find many of the terms of the settlement to be either confusingly vague, subject to manipulation, or worse, both," Leahy said. "The serious questions that have been raised about the scope, enforceability and effectiveness of this proposed settlement leave me concerned that, if approved in its current form, it may simply be an invitation for the next chapter of litigation."
Sen. Orrin Hatch, R-Utah, the committee's ranking member, said a healthy economy needs antitrust enforcement to prevent over-regulation, but he also is worried about how well the deal could be enforced.
"Rather than closing the book on the Microsoft inquiry, the proposed settlement appears to be only the end of the latest chapter," he said.
Hatch said it would be unlikely anyone would even try to compete with Microsoft if the deal is approved by the courts. Referring to a letter from Jim Barksdale, former head of the Web browser company Netscape and a longtime Microsoft foe, Hatch said if such a deal had been struck in the mid-1990s, browsing the Internet might have remained an academic exercise.
Sen. Herb Kohl, D-Wis., also voiced serious doubts about the deal's ability to serve the public interest.
"Microsoft has never been shy about using its market power," Kohl said. "Are we here today really confident that, in five years, this settlement will have had any appreciable impact on (the company's dominant role) in the computer industry? I am not."
James defended the settlement, saying it deals effectively with the most egregious conduct of which is Microsoft accused. While some details of the agreement have been called loopholes, James said they are necessary to comply with Supreme Court decisions on allowable "collaborative conduct."
Leahy asked why DOJ did not seek to force Microsoft to remove the tight programming ties between the Internet Explorer browser and Windows. James said the department has always opposed such intervention, preferring instead an enforceable method for consumers to pick and choose their preferred software.
Sen. Mike DeWine, R-Ohio, asked why the decree seems to set a 1-million-copy definition for "competitive" products Microsoft must allow on a computer's desktop.
James said Microsoft must allow all alternative products on the desktop, but only is required to alter its programs' default settings for programs whose distribution exceeds the million-copy level. That definition is easy to meet today in any case,
James said.
