Google questions Microsoft's pact

Google Inc., questioning the merits of Microsoft Corp.'s latest antitrust compromise, asked a federal court to extend oversight of the company beyond an upcoming expiration date.

Microsoft responded with its own court filing -- challenging Google's standing to even make such a request.

The legal jostling Monday came less than a week after antitrust regulators reached a deal to address Google's complaint about the built-in hard-drive search tool in Microsoft's Windows Vista. In its filing, Google expressed doubt that the pact would truly level the playing field for Microsoft rivals.

Google asked U.S. District Judge Colleen Kollar-Kotelly to extend the government's supervision of Microsoft by delaying the expiration of the related provisions of the company's antitrust consent decree. Those provisions are scheduled to expire in November.

"Without an extension, the Court may not have effective means to oversee Microsoft's implementation of these changes and determine whether they are effective in meeting the requirements of ... the Final Judgment," Google said in the filing.

Because Google was not a plaintiff in Microsoft's antitrust case, the court must grant the company standing before its filing can be considered.

"Google should not be permitted to create an issue where none exists," Microsoft said in its response, citing the fact that the U.S. Justice Department and other plaintiffs in the case have expressed satisfaction with the deal.

The dispute revolves around a capability known as desktop search, which indexes the contents of files stored on a hard drive so that users can quickly search for them by keyword.

Google, which offers that functionality in its Google Desktop software, argued that Microsoft was excluding rivals and wrongly taking advantage of Windows' dominance by connecting Vista's search boxes to Microsoft's own desktop search program.

Under last week's agreement, PC users and hardware manufacturers will be able to change the default desktop search provider in Windows Vista. If the default is changed, the search functions in areas including the Start menu will switch to the designated, non-Microsoft desktop search provider.

But even if the default is changed, Vista's built-in desktop search still will be used in certain areas, such as search fields embedded in the file-browsing windows on the desktop. In those cases, Microsoft agreed to add a nearby link that, if clicked, will take the user to the designated default desktop search provider.

Microsoft says it will make the changes despite the fact that it doesn't believe Vista's desktop search violates the consent decree. It says desktop search is a feature of the operating system, not a separate program.

Google disagrees. In its filing, it said it "welcomes the efforts of the parties to address Microsoft's violation." But it said "more may need to be done to provide a truly unbiased choice of desktop search products in Vista and achieve compliance with the Final Judgment."

In that way, Google didn't fully accept last week's deal, but it also wasn't sharply critical.

"It's a rather timid filing, and it certainly doesn't suggest that Google has concluded that the Justice Department is an adversary," said Glenn Manishin, a lawyer who represented industry trade groups that opposed Microsoft in the U.S. trial.

Manishin said Google will face a tough task in seeking to persuade the judge to delay the antitrust decree's expiration.

"I think that the court would find it difficult to seriously entertain requests to extend the term of the decree from anyone who wasn't a party to the decree," he said. "It is a judgment of the court, but it still reflects a settlement between the parties."

Microsoft has said it will continue to comply with the terms of the antitrust consent decree even after its expiration.

But competitors want to make sure Microsoft isn't allowed to use Windows' dominant market position to unfair advantage in other areas of the software market.

In its Monday filing, Google cited areas where it believes last week's agreement may fall short. For example, it said Microsoft "will continue to show its own desktop search results when users run searches from prominent shortcuts and menus throughout the operating system," relegating rival search tools to secondary status.

"Ultimately, these issues raise the need for continued judicial oversight of Microsoft's practices, to ensure that consumers' interests are best served," said David Drummond, Google's chief legal officer.

Countered Brad Smith, Microsoft general counsel: "Microsoft went the extra mile to resolve these issues in a spirit of compromise." Google, he added, is "refusing to give an inch."

The situation is expected to be among the issues addressed at a regular status conference Tuesday in Washington, D.C.

Kollar-Kotelly agreed last year to extend, until 2009, a separate portion of the consent decree, which requires Microsoft to share technical information about Windows with rivals in the computer server market. The judge expressed disappointment with Microsoft's progress.

However, that extension was made at the request of the U.S. Justice Department, with Microsoft's agreement in advance.

In a November 2002 opinion in the case, Kollar-Kotelly wrote: "In the Court's view, Plaintiffs, having initiated and litigated this suit, are the proper parties to evaluate complaints by non-parties regarding alleged violations of the Court's decree."

It would have been unlikely for Google to have been an original plaintiff. It was founded in 1998 -- the same year the case against Microsoft was filed.