Microsoft Concedes to Google and States, Will Change Vista Search

It's these important facts of the antitrust case's history which make Microsoft's concession to Google and to the complaining states so informative and pertinent. First, as last night's Joint Status Report states, "Microsoft will create a mechanism for end users and OEMs to select a default program to handle desktop search."

From there, the Report goes on, whatever the user or the OEM chooses to serve as its desktop search program, will be launched by default in "top-level" Vista windows or panels where search functionality is invoked. Those windows may include search results from Windows Desktop Search anyway, at least at first. "Microsoft has agreed, however, to add a link that, if clicked, will launch the default desktop search program and display search results from that program," the Report reads.

Finally, while Windows Desktop Search will always run in the background, Microsoft promises it will not consume resources that could go to alternative desktop search programs. The company will offer documentation to developers to assist them in making the best use of system resources when crafting their own search programs.

One of the most significant elements of these concessions is the fact that it addresses what end users can do with their middleware. The original DOJ antitrust settlement did not concern itself with end user choice, but rather with what OEMs would be allowed to install by default. This is not because the courts missed an opportunity to assume a populist tack and score victories on behalf of freedom and openness and users everywhere. It's because the courts felt they could not extend their purview beyond the facts of the case, which weren't presented by users but instead by competing companies such as Netscape and OEMs such as Compaq.

Up until yesterday, Microsoft's contention was that Google's complaints regarding desktop search were without merit because Microsoft already gave users enough choices with regard to Vista installations - and then threw in the fact that the antitrust case wasn't really about users' choices anyway.

Some who represented the company told me earlier that the Vista beta process gave end users the opportunity to register any complaints they might have wished, and the company plenty of time to respond to them. If users at large were really concerned about the ability to substitute Windows Desktop Search with Google Desktop Search, they didn't appear to have made their voices heard during the beta process. The implication here was that Google's notion that it was acting on behalf of customers was essentially an act.

If it was an act, it ended up having an equal and opposite reaction anyway. Microsoft agreed to change Vista even though, as the DOJ report indicates, the US and the States could not come to an agreement over whether Windows Desktop Search constituted middleware by Microsoft's definition.

"It was unnecessary for Plaintiffs to reach a joint resolution of the question whether desktop search is a new Microsoft Middleware Product under the Final Judgments," one of the Report's most telling sections reads. "Specifically, Plaintiffs did not agree on whether desktop search in Vista constitutes 'any functionality...that is first licensed, distributed or sold by Microsoft after the entry of this Final Judgment' (emphasis added).

"While Windows included search functionality in prior versions," it goes on, "in Vista - the first version of Windows launched after entry of the Final Judgment - the search function is improved in several respects. For example, Vista turns on the index by default, increases the file-types searched, adds search boxes throughout the operating system, and improves the selection, display, and use of results. The Plaintiffs were not able to agree whether these and other enhancements to existing desktop search functionality merely upgrade existing functionality or instead convert desktop search into functionality first licensed after entry of the Final Judgment. Nonetheless, Plaintiffs were able to work together to obtain Microsoft's agreement."

So the real argument, by the DOJ's accounting, took place between itself and its own partners in the antitrust case, while Microsoft may have been ready at this point to make the change, make everything copacetic, and get it over with.

While legal observers noted that Microsoft had snatched victory from the jaws of defeat in 2002 by limiting the scope of its middleware behavior adjustments to OEMs that make decisions on users' behalf, rather than to the users themselves, yesterday's concessions will be noteworthy for having agreed to count users' decisions as significant despite the Final Judgment.

With regard to yesterday's proceedings, Microsoft general counsel Brad Smith would only say this: "We're pleased we were able to reach an agreement with all the States and the Justice Department that addresses their concerns so that everyone can move forward." Google was not mentioned; and for its part, Google does not appear to have a public comment.

The Joint Status Report indicated that users will see Microsoft's changes in Service Pack 1 of Vista, the betas for which Microsoft now promises (through this Report) to make available to testers by the end of the year.