Could Google Unravel the Microsoft + Justice Dept. Accord?

The New York Times revealed Saturday that Google was the unidentified party mentioned in a US Dept. of Justice status report last March as having lodged a "middleware-related complaint" against Microsoft. That revelation raised perhaps zero eyebrows in the technology community, who could file that fact under "D" for "Duh."

But a memo by a key antitrust enforcement official that the Times also turned up, rejecting Google's arguments and advising states' prosecutors to reject them as well, has raised some legal eyebrows over whether the relationship between the DOJ and Microsoft has grown too cozy.

At least one of Google's complaints is apparently, once again, that Internet Explorer 7 and other Windows Vista services that rely upon it, install Windows Live Search as their default search engine. One such service is Windows Desktop Search, which amends the search page with locally indexed content, and which Google reportedly says cannot be turned off.

When Google's Desktop Search is installed, Google alleges, the simultaneous operation of both indexing engines slows down Vista tremendously, the end effect being that the 2002 settlement agreement between Microsoft and the DOJ is violated.

The question at hand is the degree to which Microsoft's own built-in tools and options should make way for competitors who have the right to produce tools for those same market spaces, without interference from Microsoft. Assistant Attorney General Thomas O. Barnett, a former partner in a firm representing Microsoft prior to joining the DOJ, had officially recused himself from this case for that reason. Still, the Times reported, he authored a memo to states' prosecutors defending Microsoft, the content of which has not yet been revealed.

If Barnett made any technical claims in that memo, there are several available ones from which he could have borrowed, which may have merit. For example, tests reveal that IE7 only installs Live Search when no other pre-existing choice appears in the Registry - for instance, from IE6. And first-time IE7 and Vista users already know well that the default first-time launch pages immediately give users the option of overriding whatever that choice may have been, with a new choice from a selection that includes Google.

But tests with a clean install of Vista did reveal that MSN Search (now Windows Live Search) was placed in the System Registry, prior to giving the user the option to override that entry. As Microsoft explained at the time, the Registry has to provide something, and for reliability purposes, it can't be something at random. However, OEMs are given the tools and the opportunity to override this default setting themselves, should they make deals with Google, Yahoo, Ask.com, or anyone else.

Our recent check of Vista does validate Google's claim that Windows Desktop Search cannot be turned off in Vista, in the same way it can be uninstalled from Windows XP. However, a Microsoft spokesperson told the Seattle Post-Intelligencer's Todd Bishop over the weekend that his company scales back its own indexing services when other indexing tools are being used.

[UPDATE - As our regular reader PC_Tool correctly points out, however, Windows Desktop Search is a service that can be disabled, although the procedure for doing so isn't self-evident. You can only disable it with administrative privileges. Click on the Start button, then in the Administrative Tools menu, select Run as Administrator. Verify yourself through User Account Control, then in the Services window, under Name, right-click on Windows Search. Then from the popup, select Stop.]

There is also the little affair of Google having reached an agreement with Apple in 2004 to be the default search provider for Safari for the Mac. Some Mac users have complained that this setting is also difficult to override.

But the very fact that it is Barnett who wrote the memo may be prompting states' prosecutors and attorneys general to distance themselves from the DOJ's defense of Microsoft, and perhaps pursue complaints against Microsoft on the state level.

The Microsoft spokesperson told the Seattle P-I that it may be willing to make limited concessions to address the new batch of Google complaints.