Microsoft uses Netscape death in antitrust filing

Microsoft Corp. cited Netscape Navigator, the browser that was discontinued by AOL LLC last Friday, as an example of why most provisions of the 2002 antitrust settlement should be retired. The Microsoft memorandum was filed in federal court on the same day AOL announced plans to discontinue development of Netscape as of Feb. 1.

Microsoft also accused the states that want a federal judge to extend her antitrust oversight of shooting legal blanks, according to court filings made a week ago.

In the memorandum, Microsoft dismissed claims made earlier in December by 10 states and the District of Columbia as so much bottom-of-the-barrel legal scrapings. “In the absence of any real-world support, movants are forced to rely solely on hypothetical examples and unsubstantiated facts,” Microsoft said. “Quite simply, the movants have no basis on which to carry their burden for the extraordinary remedy that they are seeking from this court.”

The states have argued since October that Microsoft should be monitored another five years, and they have asked District Court Judge Colleen Kollar-Kotelly to extend all provisions of the 2002 settlement until November 2012. Microsoft has contested the extension request. The Dec. 28 memo was its response to a brief filed by the states — led by New York and California — that Kollar-Kotelly asked them to submit prior to her ruling, which she will make before the end of this month.

Key parts of the agreement that Microsoft struck with the U.S. Department of Justice and 20 states back in 2002 were originally scheduled to expire on Nov. 12. But in late October, Kollar-Kotelly bumped back the expiration date to Jan. 31, 2008, saying that more time was needed for the parties to file briefs and for her to reach a decision.

Recently, the states arguing for an enforcement extension have said that all the parts of the consent decree are interrelated. One section devoted to server communication protocols has already been extended to the end of 2009; the states have said that if one part is extended, all should be.

Microsoft has stuck to its line that the decree has served its purpose, and that most of its requirements should be retired. In the latest memorandum, Microsoft rejected the idea that the protocol provisions were connected to those slated to expire. The protocol-related parts of the decree, said Microsoft, pertain only to server-based software, and are not linked to the desktop versions of the company’s Windows operating system, as the states have argued.

“Rather than providing legal or factual support, the movants put forth hypothetical scenarios in which a MCPP [Microsoft Communication Protocol Program] licensee theoretically could benefit from the expiring provisions of the final judgment,” said Microsoft’s memo. “In the real world, these competitors [Google Inc. and Apple Inc.] have achieved success by relying on non-Microsoft protocols (for good business reasons) and have never seriously considered — much less licensed — Microsoft’s Communications Protocols.”

Microsoft also touted the Netscape Navigator browser as an example of “platform software” whose development was given a helping hand by the soon-to-expire sections of the 2002 decree. “Those remedial provisions were designed to provide opportunities for the development and distribution of platform software running on the Personal Computer desktop, such as Netscape’s Navigator and Sun’s Java Virtual Machine,” said Microsoft in the Dec. 28 memo. “Those provisions have fulfilled their objectives and now are scheduled to expire.”

On Friday, the head of AOL’s Netscape Communications Corp. division declared Netscape Navigator dead, saying that his team is halting development and would issue security updates only until Feb. 1.

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