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Originally published June 27, 2007 at 12:00 AM | Page modified June 28, 2007 at 4:22 PM

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Not-so-great day in court for Google

The judge overseeing Microsoft's antitrust settlement with the government did not rule Tuesday on Google's attempt to intervene in the case...

Seattle Times staff reporters

The judge overseeing Microsoft's antitrust settlement with the government did not rule Tuesday on Google's attempt to intervene in the case. But her comments from the bench cast doubt on whether Google would be able to further sway the course of the settlement.

U.S. District Judge Colleen Kollar-Kotelly deferred to the plaintiffs — lawyers representing the federal government, 17 states and the District of Columbia — to impose any additional sanction on Microsoft and ensure its business practices preserve consumer choice.

"The plaintiffs, as far as I'm concerned, stand in the shoes of the consumer," she said during Tuesday's status hearing on Microsoft's compliance with the overall antitrust settlement, adding, "Google is not a party in this case."

Google on Monday had sought to join the case in order to file a brief further pressing its complaint about the desktop-search feature built into Windows Vista.

It also had suggested judicial oversight of Microsoft should be extended. Major portions of the landmark 2001 antitrust settlement are due to expire in November.

The brief came less than a week after Microsoft committed to make changes to Vista's desktop-search feature that would allow users to set similar products from Google and other competitors as their default choice.

Microsoft negotiated the changes, described in a joint status report issued a week ago, with state and federal government lawyers in the months since Google complained to the Department of Justice in late 2006.

In court Tuesday in Washington, D.C., Kollar-Kotelly indicated her support for those changes, which Microsoft viewed as a victory.

"We have the green light to go forward and implement the agreement that was negotiated," said Microsoft General Counsel Brad Smith. "This is not going to be revisited, nor is the consent decree [settlement] going to be extended."

The changes didn't go far enough for Google, prompting the company to try to enter the case directly, rather than through the government — as it did when first making its concerns known.

In the past, Kollar-Kotelly has not allowed third-party briefs to be admitted, but she did not reject Google's filing outright. She said she wanted to wait until all responses to the filing had been reviewed.

The plaintiffs expressed satisfaction with the negotiated changes, but they also did not directly oppose Google's filing as an outsider. Microsoft objected to Google's intervention in a filing late Monday.

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Ultimately, it may not matter whether Kollar-Kotelly accepts or rejects Google's brief. The issues have already been raised.

"She obviously read it and was fully aware of what's going on," said Andrew Gavil, a Howard University law professor following the case. "In that sense, it accomplished what Google wanted to do. It put a buzz in her ear."

One Google gripe: Not enough detail on the changes to desktop search was shared.

A Microsoft attorney addressed that issue in court.

Rick Rule, an outside attorney for Microsoft, said he discussed the issues with Google's counsel Friday afternoon.

"There's either been lack of knowledge or some confusion" about how easy it is to use the default search proposed for Vista, Rule told the court.

Afterward, Google's senior lobbyist, Alan Davidson, told reporters Google was satisfied — for the time being.

"As a result of our raising concerns about Vista desktop search, the Department of Justice and the states secured remedies from Microsoft that will provide consumers more choices than existed before," he said. "We ... hope they will closely monitor the implementation to ensure that consumers' interests are served."

Representatives of the state of California, one of the plaintiffs, also took a "trust but verify" approach. Attorney Stephen Houck said the group takes the complaint by Mountain View, Calif.-based Google "very seriously."

"Microsoft has said they will make this easier, but we will be looking over their shoulders," he said.

The judge set a hearing for early November to see if Microsoft has met its obligations under the 2001 settlement and can forgo further monitoring.

Alicia Mundy reported from Washington, D.C.: 202-662-7457 or amundy@seattletimes.com

Benjamin J. Romano reported from Seattle: 206-464-2149 or bromano@seattletimes.com

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