Google escalates antitrust battle with Microsoft

Less than a week after Microsoft agreed to change desktop search in Windows Vista — in response to an antitrust complaint from Google — Google is asking a judge for additional changes and "continued judicial oversight of Microsoft's practices."

The move signals an escalation in the antitrust battle Google has initiated against Microsoft, which spilled into the open last month but appeared to be resolved last week.

Microsoft and the government lawyers enforcing the antitrust settlement they reached in 2001 agreed on a handful of changes in response to Google's complaint that the built-in desktop search feature in Vista limited consumer choice and violated the 2001 settlement.

But Google found the changes inadequate and filed an amicus brief with the judge overseeing the settlement at about 10:15 this morning, according to a company spokesman.

"The remedies won by the Department of Justice and state attorneys general from Microsoft are a positive step, but consumers will likely need further measures to ensure meaningful choice," David Drummond, Google's chief legal officer, said in an e-mailed statement. "Ultimately, these issues raise the need for continued judicial oversight of Microsoft's practices, to ensure that consumers' interests are best served."

Microsoft said it went beyond requirements of the antitrust settlement in agreeing to the changes to desktop search, a tool for quickly finding material stored on a computer's hard drive.

"Microsoft went the extra mile to resolve these issues in a spirit of compromise; Google's refusing to give an inch," Brad Smith, Microsoft general counsel, said in an e-mailed statement. "We believe any additional changes Google may be demanding were rejected for good reason by the government and would be a setback for computer users."

The news of the amicus brief request — essentially a request by a third party to intervene in the settlement — comes a day before the parties are scheduled to go before U.S. District Court Judge Colleen Kollar-Kotelly for a status conference.

In her oversight of the landmark antitrust settlement, Kollar-Kotelly so far has been unwilling to allow other parties apart from Microsoft and the plaintiffs — comprising the U.S. Department of Justice and 17 states — to gain standing.

"In the court's view, plaintiffs, having initiated and litigated this suit, are the proper parties to evaluate complaints by nonparties regarding alleged violations of the Court's decree," Kollar-Kotelly has said.

Google asked the judge for permission to file the brief.

The specific changes to desktop search in Vista, outlined in a joint status report from Microsoft and the government lawyers last week, include:

• Allowing competitors' products to be set as the default choice for finding files stored locally on a computer. Vista will still handle desktop search in some cases, such as in Explorer and Control Panel windows, where the search doesn't open a new window to display results. In those cases, Vista will also display links to the default search engine.

• Changing an indexing function that creates a quickly searchable database of files stored on the computer for easy access through desktop search. Google complained that the Vista indexer could not be disabled and slowed performance.

Microsoft said its indexer could be disabled, but that it need not be because it was designed to stop using computing resources when other applications are running. Microsoft agreed to publish more details to help software developers build programs that take advantage of this.

The changes don't go far enough for Google, which says in the brief they are difficult to assess "until more is understood about the proposed remedies and how they might affect user choice."

For example, the company wrote in its brief, "it appears that Microsoft will continue to show its own desktop search results when users run searches from prominent shortcuts and menu entries throughout the operating system, though users will now be given a mechanism to request results from their chosen desktop search product by taking a second step after they have first viewed results from Microsoft's product."

Further, the company wrote, "one of the menu entries in the Vista Start menu and in various 'right-click' menus is the word 'Search' " — an issue not explicitly addressed in the status report. "Google understands that Microsoft may intend to remove these menu entries from Vista and deprive users of these access points altogether rather than provide the user choice required under" the antitrust settlement.

As a result, Google is pushing the court to extend the term of the settlement, most of which is due to expire this fall.

"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," Google wrote.

Benjamin J. Romano: bromano@seattletimes.com