Despite some of the spin from some quarters that Microsoft’s appeals court victory was really a loss, New Mexico saw the writing on the wall and withdrew from the states’ antitrust lawsuit against the software company.
Microsoft’s minor concessions the other day apparently prompted the attorney general there to rethink the wisdom of sending more money pursuing the company. The concessions were roundly denounced by many as “cosmetic,” but that was a brilliant move by Microsoft. The critics of the changes seem to forget that it wasn’t too long ago that Microsoft’s rigid control over the appearance of the Windows Desktop was at the core of the main charge against Microsoft. Here’s a quote from the Department of Justice’s filing with the Appeals Court:
Microsoft’s restrictions on OEMs went further. Microsoft feared that OEMs might promote the use of Navigator rather than IE by configuring the icons on the initial Windows desktop screen or the “Start” menu entries, or arranging the Windows boot (start-up) sequence. FF 202-03 (JA 2296-97).(26) Microsoft thus “threatened to terminate the Windows license of any OEM” that made such changes or added “programs that promoted third-party software to the Windows ‘boot’ sequence.
…The court found that these licensing and coercive measures, which “guaranteed the presence of Internet Explorer on every new Windows PC system,” had no technical justification. FF 158, 175-76 (JA 2287, 2291).(28) The forbidden OEM conduct, although facilitating the distribution of Navigator, “would not compromise the quality or consistency of Windows any more than the modifications that Microsoft currently permits.” FF 221-23 (JA 2302-03).
So before any new judge can conduct new hearings on possible remedies against Microsoft, the company steps forward and say, “fine, you were right, we were wrong, we’ll act on our own initiative before a penalty hearing to comply with this part of the ruling against us.”
Microsoft’s critics might get some visceral joy out of doing so, but the argument that Microsoft is being deceptive by eliminating a practice that the Court found to be illegal isn’t likely to be a winning legal theory.