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Google Desktop and Windows Vista search and sidebar share many of the same features
Justice Department official dismisses Google's claims that Windows Vista is anticompetitive

It was during the Clinton administration when Microsoft faced the Department of Justice’s heavy scrutiny of antitrust laws, but now, in a twist of events, the U.S. government appears to be defending Microsoft from such antitrust allegations.

According to The New York Times, Google filed complaints with federal and state prosecutors claiming that the indexing program built into Windows Vista operating system impedes the operation of Google Desktop. Users trying to run both Windows Vista indexing and Google Desktop are frustrated because the operation of both considerably slows the operating system, claims Google.

In its complaint, Google points to Microsoft’s antitrust settlement in 2002, “which prohibits Microsoft from designing operating systems that limit the choices of consumers.” Google also “asked the court overseeing the antitrust decree to order Microsoft to redesign Vista to enable users to turn off its built-in desktop search program so that competing programs could function better.”

In stark contrast to the DOJ’s attitude to Microsoft’s previous case, high-ranking Justice Department antitrust official Thomas O. Barnett urged state prosecutors to reject Google’s claims. Barnett was previously a partner at Covington & Burling, the law firm that represented Microsoft in the antitrust case and continues to represent the company.

Barnett, however, was cleared by ethics lawyers to handle Microsoft-related cases as he was never involved with Microsoft during his time at Covington & Burling. According to the paper, Barnett sent a memo to state attorney generals dismissing Google’s claims. State prosecutors disagreed with the DOJ’s letter and said that they intend to investigate the claims with or without the federal government.

In a recent interview, Barnett declined to comment on the Google complaint, but did offer several comments on the requests for the U.S. government to monitor Microsoft’s actions. “The purpose of the consent decree was to prevent and prohibit Microsoft from certain exclusionary behavior that was anticompetitive in nature,” he said. “It was not designed to pick who would win or determine who would have what market share.”

“We want to prevent Microsoft from doing those things that exclude competitors,” Barnett added. “We also don’t want to disrupt the market in a way that will be harmful to consumers. What does that mean? We’ve never tried to prevent any company, including Microsoft, from innovating and improving its products in a way that will be a benefit to consumers.”

Microsoft says that it is unaware of the defensive measures that the DOJ has taken in its place, saying it does not know of any such memo from Barnett. Furthermore, Microsoft also claims that it was already made changes to Windows Vista in response to complaints by Google, and that the built-in indexing software can be disabled.

Although Microsoft may be unaware of the memo, state prosecutors are confirming its existence. Connecticut attorney general Richard Blumenthal said, “Eyebrows were raised by this letter in our group, as much by the substance and tone as by the past relationship the author had had with Microsoft ... In concept, if not directly word for word, it is the Microsoft-Netscape situation. The question is whether we’re seeing déjà vu all over again.”

The Times points out that the difference in the Justice Department’s view on Microsoft’s practices may be related directly to the shift from the Clinton to Bush administration. Microsoft also did its part by spending more than $55 million on lobbying activities and adding more legal help, which the paper says made the software company a more effective lobbying organization.

“With the change in administrations there has been a sharp falling away from the concerns about how Microsoft and other large companies use their market power,” said Harry First, a professor at the New York University School of Law and the former top antitrust lawyer for New York State who is writing a book about the Microsoft case. “The administration has been very conservative and far less concerned about single-firm dominant behavior than previous administrations.”





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