Judge questions Microsoft project delays in antiturst settlement

A U.S. district court judge monitoring Microsoft Corp.'s antitrust settlement with the U.S. government scolded company lawyers Wednesday because the company recently announced a lengthy delay in a project to improve technical documentation for its communications protocols.

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Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia, questioned why Microsoft has pushed back the completion date of one of two technical documentation projects announced in February from early 2006 to October 2006 or later. The two projects were intended to help Microsoft comply with the judge's order to share its proprietary communications protocols, part of the settlement Kollar-Kotelly approved in late 2002.

"If it's an issue of resources, then put them in," Kollar-Kotelly told Microsoft lawyers during an antitrust compliance hearing. "Do what it takes to get it done."

The judge also questioned why Microsoft had proposed to portable music player manufacturers that if they shipped Windows Media Player in their software packages, they could include only it and no competing media software. The exclusive proposal, made during the last three months, violates the antitrust settlement, Kollar-Kotelly said.

"This should not be happening at this point in the decree," Kollar-Kotelly said. "I realize people make mistakes, but this should not be happening."

Microsoft reversed course on the exclusivity proposal after it received an outside complaint and issued a final draft to media player companies days later, Microsoft lawyer Charles "Rick" Rule said. The proposal was made by a low-level employee at Microsoft, and the company promptly informed music player manufacturers they were not required to honor an exclusivity agreement, he said. Microsoft reported the complaint to the U.S. Department of Justice, he said.

"At this point, I believe there's no lingering doubt about the nonexclusivity of the program," Rule said. "We regret this happened ... but we took immediate corrective action."

Kollar-Kotelly questioned why internal controls at Microsoft didn't catch the media-player proposal. It's likely Microsoft would have caught the proposal if it had not received a complaint, Rule answered.

Kollar-Kotelly spend most of the time hearing about delays in the technical documentation project. The judge ordered Microsoft to license its communication protocols to other IT vendors as part of the November 2002 antitrust settlement between the company and the U.S. government. The quality of the technical documentation for those protocols is one of the major remaining issues in the settlement, with one lawyer for the plaintiffs complaining Wednesday that the company hasn't lived up to the agreement.

Microsoft and the plaintiffs announced in February two projects intended to improve the technical documentation, including a protocol analyzer project called Troika. Under Troika, Microsoft agreed to create a series of network monitor protocol parsers to be used to compare information in the documentation against network traffic involving the communication protocols.

The technical documentation is important because it helps Microsoft competitors build competing software, said Stephen Houck, a lawyer for the California group of state plaintiffs in the case. "This is the piece of the judgment that has the most potential to have an impact on the marketplace," he said.

The plaintiffs just learned of project delays in the weeks leading up to the latest compliance hearing, Houck added. "Essentially, Microsoft hasn't done what it promised to do," he said. "Only in the walk up the courthouse steps have we learned there were tremendous problems with the project."

Rule disagreed, saying Microsoft had communicated difficulties with the project earlier to a court-authorized technical committee working with the company on the technical documentation. He also took issue with Houck's complaint that Microsoft had completed "nothing" related to the Troika project, saying the company has given close to 9,600 pages of technical documentation to protocol licensees.

"Microsoft does remain fully committed to full compliance," he said. "We at Microsoft have always been confident we have been compliant with the decision."

The delay in Troika was necessary because Microsoft underestimated the scope of the project, he said. "We undertook a project that had never been done before, so we had engineers who were essentially giving their best estimate of what would be required and how long it would take," Rule said.

Responding to Kollar-Kotelly's call for more resources to be put in Troika, Rule said company has committed about 30 employees to the project and is looking for more help.

Kollar-Kotelly urged Microsoft and the plaintiffs to come up with a solution involving Troika, and she scheduled a special hearing for Nov. 30 to monitor the project's progress. "The volume [of documentation] may be nice, but the completeness and accuracy is what's important," she said. "I want this to be a priority."