Google Seeks Court Review of Microsoft Desktop Search Software

Published September 1, 2007

Google continues to press a technology-intensive antitrust case against Microsoft in federal court and, in spite of a series of noncommittal or unfavorable rulings, has expanded its complaints against the software giant.

Citing provisions in previous antitrust judgments against Microsoft, the Internet search engine and online information company seeks legal leverage that will loosen Microsoft’s integration of search applications within operating systems.

Origins in Netscape Case

The original case against Microsoft was based on its bundling of the Internet Explorer Web browser with its Windows operating system. Netscape, its then-rival in the browser market, claimed Microsoft was illegally leveraging its dominance in PC operating systems to boost what Netscape viewed as a competing application. Netscape’s interpretation prevailed as part of a settlement of the case in 2002.

The Google maneuvers are seen as partially defensive in nature. The firm is trying to deflect a Microsoft suit asking the court to stop Google’s proposed $3.1 billion purchase of DoubleClick Inc., a smaller advertising-based online service provider. The proposed merger also is being examined by the U.S. Department of Justice, Federal Trade Commission, and a House of Representatives committee.

Similar to Netscape’s one-time demand regarding Internet Explorer, Google wants consumers to have the choice of disabling Microsoft’s Desktop Search application so Google’s competing product, Google Desktop Search, can be used instead. The case is in the hands of U.S. District Judge Colleen Kollar-Kotelly, who acts as overseer for Microsoft’s ongoing market behavior and compliance under the antitrust settlement.

Taking ‘Failed Path’

“Google is showing that it intends to take the same failed path as Netscape, trying to use antitrust laws to shut down competition from Microsoft,” said David Kopel, associate policy analyst and research director at the Independence Institute.

“Google ought to live up to its motto of ‘don’t be evil,’ but instead Google hypocritically claims that Microsoft should be prevented from using Internet Explorer in exactly the same way that Google uses Mozilla Firefox,” Kopel remarked, referring to the way Google’s search feature is integrated with the popular open-source alternative to Explorer.

The federal judge is holding Google’s recent amicus curiae brief that also made complaints about integrated functions and applications within Microsoft’s Windows Vista software. The company maintains Microsoft’s desktop search program working within the Windows Vista operating system environment can slow down third-party desktop search programs and thus threatens alternative choices.

Kollar-Kotelly has said she would consult with and probably rely on federal lawyers and at least 17 states to determine whether additional enforcement action or oversight is required to address Google’s latest friend-of-the-court arguments. For any further concerns about Microsoft’s adherence to a consent decree settling a prior antitrust case, Google should go to federal and state officials, she said at a recent quarterly hearing.

Google Unsatisfied

Microsoft has told the federal court it would agree to allow Windows Vista users to select other default desktop search engines, but Google seems to be unsatisfied because the Microsoft promises don’t go far enough. The company is continuing to contact federal and state antitrust attorneys, according to Alan Davidson, Google’s senior policy counsel. Brad Smith, Microsoft’s general counsel, countered, “the government represents the interests of consumers and Google clearly does not.”

Kollar-Kotelly did not actually rule on any merits of the latest flaps, but neither did she reject Google’s filing outright. Her comments from the bench, however, cast some doubt as to whether she believes Google has legal standing to intervene in the overall antitrust settlement and its consumer protection purposes, as Google wasn’t a party in the original antitrust lawsuit.

Over the course of her administration of the 2002 Microsoft settlement, Kollar-Kotelly has not permitted many such third-party briefs to be admitted, but she is allowing all responses to the Google filing to be submitted and reviewed. She also seems to support the latest Microsoft compromise, saying, “We have the green light to go forward and implement the agreement that was negotiated.”

Steve Houck, an attorney representing the states, told Kollar-Kotelly the Google complaint brought out “some very good points” but Microsoft responded in a manner that “represents from our standpoint a reasonable solution.”

Judge May Call Hearing

In practical terms, some observers say the continuing Microsoft antitrust flaps aren’t dependent on Kollar-Kotelly because much of the matter rests with federal and state lawyers. In addition, it probably won’t alter circumstances of the Microsoft suit against Google over DoubleClick nor affect the official inquiries into the pending deal.

Kollar-Kotelly nevertheless has the authority to set a hearing for early November to decide whether Microsoft has met its obligations under the antitrust settlement. That hearing will determine whether the company must undergo further monitoring.

Google may be racing against time, since court oversight of various aspects of the Microsoft antitrust settlement expire in November, and it wants the settlement agreement extended beyond that deadline. At the November hearing, the judge is likely to rule on Google’s petition that the agreement be extended.

Google’s confidential antitrust complaint against Microsoft over Vista dates back to early June, but the company has been lobbying the Justice Department on the subject since April. Smith at the time said the new operating system was carefully designed to work well with rival software products, yet Google may have convinced several state attorneys general to pursue the issue.

Frank Barbetta ([email protected]) writes from Little Falls, New Jersey.