UPDATE: MS/DOJ - States' remedy hearing starts

By Patrick Thibodeau, IDG News Service |  Government

The states that are seeking tougher remedies against Microsoft Corp. asked a federal court today to make Internet Explorer software code open source as a way of denying the company the benefits of its illegal conduct.

In U.S. District Court, Brendan Sullivan, the attorney representing the nine states that have refused to sign the Bush administration's settlement in the case, told Judge Colleen Kollar-Kotelly that tougher remedies are needed to protect new technologies from a company that left "nothing to chance" in attacking its competitors.

Microsoft lawyer Dan Webb also spoke Monday morning, labeling the states' proposed remedies as "extraordinarily harsh and unfair." The states' remedies go far beyond the scope of the hearing, he said, and, if applied, they would force the software company to pull Windows off the market.

Sullivan also told the court that the company should pay a price for its actions, and called on the judge to give developers complete access to Internet Explorer's programming code.

The browser "is the fruit of Microsoft's statutory violations -- it is the fruit, there is no clearer fruit and it should be denied them," said Sullivan.

Today marks the start of two months of hearings on a set of remedy proposals offered by the nine states, as well as the District of Columbia, that have rejected the government's settlement as having too many exceptions and being unable to unfetter the market from Microsoft's dominance. Nine other states agreed to the settlement, reached last year.

"The plaintiffs are not here to seek the destruction of Microsoft," said Sullivan. "The plaintiffs' goal is to make sure Microsoft behaves properly.

"Microsoft has done much good in this world, but it has also acted very, very badly," said Sullivan.

In his presentation, Sullivan reviewed key pieces of evidence that were entered during the 76-day trial that ended two years ago to frame and explain the rationale behind the state's remedy proposals.

After another lawyer for the states, Steven Kuny, described the remedies as necessary to modify Microsoft's sweeping antitrust behavior, Microsoft's attorney said that the states' remedies will not only harm Microsoft, but consumers as well. "The only beneficiary is Microsoft's competitors," Webb said. He added that the company will show evidence that proves Microsoft competitors such as Sun Microsystems Inc., AOL Time Warner Inc., and Oracle Corp. were involved in drafting the remedy proposal.

Beyond the effect that they would have on the company, the remedies should be thrown out for two other reasons, Webb said.

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