WASHINGTON, Jan. 28 (UPI) -- Judges Robert Bork and Kenneth Starr joined antitrust experts and industry groups Monday in opposing the proposed settlement between the U.S. Department of Justice and software giant Microsoft.
The former Supreme Court nominee and Whitewater special prosecutor helped draft comments from the Project to Promote Competition and Innovation in the Digital Age, or ProComp, decrying the proposed 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 application program interfaces, which the Windows operating system uses to work with other software.
"The proposed decree is so ineffective that it would not have prevented Microsoft from destroying Netscape and Java, the very acts that gave rise to this lawsuit," Bork said in a statement. "It is so ineffective in controlling Microsoft that it might as well have been written by Microsoft itself."
The filing calls on U.S. District Judge Colleen Kollar-Kotelly to take a hard look at how the deal would serve the public interest, said Mitchell Pettit, ProComp's president. DOJ's attempt to stop specific illegal activities relies on the wrong legal theories, he said.
"The right standard to adopt in this case is the precise standard that the Court of Appeals adopted," Pettit told reporters. "They didn't make the phraseology up by accident when they said the remedy must unfetter the market from anticompetitive conduct ... deny Microsoft the fruits of its illegal behavior and prevent any recurrence."
The Justice Department is wrong in thinking the decree would allow API makers to compete effectively with Microsoft, Pettit said, because such companies already make products tightly tied to Windows.
The decree also gives Microsoft far too much discretion in deciding what API information it must share, said Glenn Manishin, an attorney working with ProComp. The decree's goals are laudable, he said, but in practice would result in "ephemeral disclosure" at best.
Starr said the case is the most significant antitrust proceeding of this generation, and the remedy phase is most crucial. Microsoft's liability already has been upheld on appeal, but all the government's activities would go for naught if the remedy isn't appropriate, he said.
Antitrust law is clear on determining if the proposed agreement is appropriate, Starr said. In effect, a second trial must be held to both fully hear evidence on the deal's possible outcomes, and consider other options, he said. It's entirely possible for Kollar-Kotelly to combine such a hearing with proceedings on a competing proposal put forward by nine of the states that originally joined DOJ in suing Microsoft, he said.
That action includes proposals for splitting up Microsoft, Starr said, and such action must be seriously considered, albeit with caution. Divestiture would eliminate the need for judicial oversight of the DOJ deal, he said, and even retaining the possibility of such action would help prevent future Microsoft misdeeds.
DOJ has defended the settlement before congressional committees, saying it deals effectively with the most egregious conduct of which Microsoft is accused. While some details of the agreement have been called loopholes, the department said they are necessary to comply with Supreme Court decisions on allowable "collaborative conduct."
Other groups also defend the proposed settlement, saying it will allow the tech industry to refocus on better products instead of continued legislation. The nonprofit Citizens Against Government Waste called the settlement fair for all sides, including consumers who would see more choice among software.
"This lengthy litigation has cost taxpayers more than $35 million, and after reviewing the terms of the (deal), final approval is clearly in the public interest," CAGW said in a statement. "(The lawsuit) has also hobbled on of America's premier high-tech engines of growth at a time when the economy needs a jump-start."