Google Moves Vista Desktop Search Complaint to New Venue

In what could be the company's only option for prolonging its complaint about Microsoft's deployment of its Windows Desktop Search component in Windows Vista, Google - which many believed had actually won a concession from Microsoft last week - has filed an amicus brief with the US district court overseeing Microsoft's compliance in its antitrust settlement with the US Justice Dept.

As first discovered by Seattle Post-Intelligencer reporter Todd Bishop, Google's brief asks the court to effectively compel the Justice Dept. -- which is charged with overseeing Microsoft's conduct with regard to compliance with court order -- to reveal more information about what Microsoft agreed to do.

Originally, Google was concerned that Microsoft was hogging the "Search" button in Vista - that when a user clicked on Search, it would bring up WDS as a default preference, precluding Google Desktop Search. As the DOJ reported last week, Microsoft agreed to modify its Search provision in Vista Service Pack 1, supposedly to give consumers a level playing field with regard to who handles that functionality.

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But as the amicus brief indicates, Google is afraid that Microsoft chose to level the playing field by obstructing search functionality in Vista SP1 - by taking out the Search button altogether. We won't know for sure until the latter half of this year when SP1 will be released. Long-time Microsoft watchers know that "the latter half of this year" typically means late December.

And late December would fall after a critical deadline set by the Federal Circuit district court - specifically, that the DOJ would monitor Microsoft's conduct up until November 12, 2007, unless the court grants an extension. If SP1 is released after that deadline expires, Google implies, Microsoft could make an anti-competitive move like removing the Search button, without the court being able to put a stop to it.

"Google respectfully suggests that the Court extend the term of the Final Judgment so that it may supervise the steps that Microsoft is taking, ensure that they are implemented appropriately, and ensure that they in fact 'resolve any issues the complaint may raise under the Final Judgments,"' writes Google's attorneys, quoting in part Microsoft's consent decree with the DOJ. "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."

That may sound agreeable to some, though Google may have forgotten that it hasn't been the district court that was overseeing Microsoft's conduct to begin with. Rather, the court famously assigned that job to the Justice Dept.

As the District Court explained in a memo accompanying its 2002 Final Judgment, "The remedy in this case will charge Plaintiffs [the DOJ] with the obligation of monitoring Microsoft's compliance. While Plaintiffs may rely upon the views of third parties to guide them in this task, the duty of enforcement belongs to Plaintiffs."

The court did reserve itself the right to extend the terms of its consent decree for an additional two years following the expiration of the original five-year term this November. However, that extension, as the court explained in its 2002 memo, can only come "upon a finding that Microsoft has engaged in a pattern of willful and systemic violation of the Court's decree."

An agreement on Microsoft's part to behave responsibly, along with plenty of concessions made to the original plaintiffs, including states' attorneys general, would bode against the likelihood of the DOJ compelling the court to extend that five-year term. The Court can't exactly grant a motion that no one makes. So Google is apparently trying to make that motion on the plaintiffs' behalf.

Neither company had an official comment on this topic this afternoon.

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