Microsoft outpaces legal foes with Windows XP

The hands of Microsoft Corp.’s programmers may be outpacing the hands of its legal critics, as the software giant prepares to ship the final version of Windows XP just as its antitrust case heads to a new trial court.

Microsoft signalled last week that it would release the “Gold Code” for its forthcoming operating system to PC manufacturers on Friday, when it expects to have finished removing bugs from the software. The company’s chief executive officer, Steve Ballmer, confirmed Monday at a technical meeting in Sao Paulo, Brazil, that Microsoft expects to meet the Friday deadline “with a little bit of luck,” according to an Associated Press report.

Meanwhile, Microsoft’s antitrust case is expected to move back to the trial court level as soon as Friday, where a new judge will review it. The judge will be charged with crafting a new set of remedies to impose against the software maker, which has been found guilty of violating antitrust law to squash competitors.

Some government officials and industry opponents has raised concerns that features in Windows XP repeat antitrust violations the company has been found guilty of already, prompting speculation that the company’s critics will ask the trial court for an injunction preventing the operating system from being launched as planned on Oct. 25.

However, one legal expert Tuesday said Microsoft’s quick moves to get the product through its sales channels and out to customers may help it to skirt any injunction. Microsoft has already told PC makers they can ship computers running Windows XP before the planned Oct. 25 launch date, adding to the time pressure on its legal opponents.

“The further along Microsoft is in the development process, the more it is able to argue to a judge that the government waited too long to react,” said Emmett Stanton, an attorney at the law firm Fenwick & West LLP who has closely followed the case.

Furthermore, while various privacy groups and industry rivals to Microsoft have expressed concerns about Windows XP, “they seem to be relying on the government to act,” he said.

One of the lead states involved in the case declined to comment Tuesday on whether the states would push for an injunction to prevent Windows XP from shipping. “We certainly are talking strategy about the case, but it’s off limits to discuss what we might do next,” said Bob Brammer, a spokesman for the Iowa’s attorney general’s office.

A spokeswoman for the U.S. Department of Justice did not respond Tuesday to questions about what steps the government planned to take, or whether it planned to file an injunction with the new trial judge.

Even if legal opponents do ask for an injunction, Stanton said any action to stop Windows XP from reaching customers is unlikely to bear fruit.

Much of the criticism from opponents has centered on Microsoft’s decision to bundle applications such as a media player, instant messaging and digital photography software with Windows XP. However, the U.S. Court of Appeals for the District of Columbia on June 28 reversed a trial court finding that Microsoft acted illegally when it bundled its Internet Explorer browser with an earlier version of Windows. While it upheld the lower court’s finding that Microsoft violated antitrust law to maintain its operating system monopoly, the appeals court ordered the trial judge to reexamine the bundling issue.

One industry analyst agreed that Windows XP would reach consumers without any delay, in part because of because of its importance to the entire PC sector. “The release is going to happen, I don’t think we’re going to see an injunction,” said Chris Le Tocq, an analyst with Guernsey Research. “To many people have too much riding on this.”

Microsoft, in Redmond, Wash., can be reached at

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