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Judge mulls Microsoft's future in antitrust case

WASHINGTON (CNN) -- A federal judge deciding whether Microsoft Corp. should face harsher penalties for violating antitrust laws said Tuesday she would consider not only what it has done in the past but also what it might do in the future.

Attorneys for Microsoft had argued that in making her decision U.S. District Court Judge Colleen Kollar-Kotelley should look only at past Microsoft practices already declared illegal and should not consider testimony about possible future actions.

Quoting from a previous U.S. Supreme Court ruling, Kollar-Kotelley said, "Granting an antitrust decree involves predictions." She said she would think about how to prevent possible future violations of antitrust law.

Microsoft entered into a settlement last fall with the Justice Department and many of the state attorneys general who had brought an antitrust case against the world's largest software maker.

But nine states and the District of Columbia refused to go along, saying the remedies required by the settlement were insufficient.

Those states are now trying to make their case to Kollar-Kotelley in a series of hearings.

On Tuesday, Microsoft's attorneys objected when an employee of SBC Communications testified that Microsoft might someday change its Web browser, Internet Explorer, to interfere with an SBC product. The judge allowed the testimony.

Microsoft attorney Steve Holley also sparred with Jonathan Schwartz, chief strategy officer for rival Sun Microsystems.

Schwartz said Microsoft's dominance in desktop computer operating systems would allow the company to force the computer industry and consumers to embrace .NET, its new product conceived as a competitor to Sun's Java programming language, and Passport, a way of proving identity in cyberspace.

"What basis do you have for testifying about Microsoft's future intentions?" Holley demanded.

"Microsoft has a business model and is not merely propagating Passport as a hobby," Schwartz calmly replied.

A Princeton University computer science professor testifying on behalf of the states, Andrew W. Appel, said the remedies proposed by the Justice Department would not be sufficient to keep Microsoft from continuing to violate the law.

He said the remedies offered by the nine dissenting states were sufficient, reasonable and practical.

He also testified Microsoft could separate software from its Windows XP platform while leaving the core operating system intact. Microsoft contends that features such as Internet Explorer are woven into the operating system and cannot be separated without crippling Windows.

Under cross-examination, Appel admitted he had been unable to make an extensive examination of Windows XP because he received the raw code only on February 20.