Massachusetts may appeal the US Court of Appeals' decision this week to uphold a settlement reached by Microsoft and the US government in 2002.
The US state and two computer bodies had argued that the deal struck was not sufficiently hard on Microsoft for abusing the operating system monopoly it enjoys with Windows. The Court of Appeals denied the attempt to overturn the settlement.
However, while Massachusetts has suggested appealing against the decision, legal experts say the state's prospects for success are remote, especially since it was a unanimous decision. There is a strong sense from those on both sides of the case that this historic fight is about over, and the issue now is how the end of the case will affect Microsoft.
"I think we will see Microsoft be a little more aggressive," said Mike Petit, president of ProComp, an anti-Microsoft industry group that has supported harsher remedies than those agreed to in the anti-trust settlement. "They can still wreak havoc on the industry."
The settlement imposed no restrictions at all on Microsoft "commingling" more applications to Windows, Petit pointed out. The US anti-trust case concerned how Micosoft had made its Explorer browser an integral part of the Windows OS and so decisively stolen the browser market. And a EC ruling against Microsoft earlier this year demanded that Microsoft made a verison of Windows that did not tie-in its Media Player. Petit argues that Microsoft can now tie in whatever other apps it wants.
The government case did have some impact on Microsoft's behavior, said Ashok Bakhshi, IT director at Schindler Elevator. "They were not as arrogant, sometimes, in dealings as they were before," he said. But once the government stops watching, "they might get back to the old ways - that's the tendency of any big corporation".
Massachusetts, the lone holdout state, as well as two industry groups - the Computer and Communications Industry Association and the Software and Information Industry Association - had argued that the US anti-trust settlement didn't go far enough and sought a range of tougher sanctions. Those harsher remedies included forcing the company to open-source its Explorer browser and allow the porting of Office to other operating systems, such as Linux. It also sought to force Microsoft to unbundle some of its operating system functions, like Media Player.
Wednesday's decision likely spells the end of the legal line in that fight, said experts. "A Supreme Court appeal is beyond a long shot for the plaintiffs," said Hillard Sterling, an anti-trust attorney at Much Shelist, who has followed the case since its beginning in 1998. "It's virtually certain the court would have no interest in even taking this case."
Microsoft officials said the ruling was its most important so far in resolving its anti-trust battle. The company faces ongoing anti-trust issues in Europe and some class-action suits in the states, which it has been settling one by one. It reached settlements just this week with officials in Massachusetts and Arizona.
That decision "has made clear that Microsoft and the rest of our industry can move forward with this decree and judgment in place," said Brad Smith, Microsoft's general counsel. The ruling in effect supports Microsoft's operating system strategy, said Smith. "The court of appeals made clear that removing code from Windows would be a huge step backward."
Sarah Nathan, a spokeswoman for Massachusetts Attorney General Thomas Reilly, said the state is considering an appeal but won't make a decision until officials complete a review of the 83-page decision.
The ruling by the Court of Appeals was expected - it would have been a bombshell had it gone the other way, said Bob Lande, an anti-trust professor at the University of Baltimore School of Law. He said it was unlikely that the federal courts would impose something stronger than the settlement reached by the DoJ and backed by the District Court. A decision imposing tougher remedies "would have been very, very unlikely," he said.