New judge takes on Microsoft punishment phase

Whether Windows XP is released to the public in its present form on October

25 is a decision that will be largely up to US District Judge Colleen

Kollar-Kotelly who was appointed as the new judge in the government's antitrust

lawsuit against Microsoft. It will be Kollar-Kotelly's job to determine what

measures are appropriate to punish Microsoft for its anti-competitive behavior.

Kollar-Kotelly is a judge with a reputation as a meticulous but slow moving

jurist. She was appointed to the bench by former US President Clinton in

1997.  Before that she was also a judge on the District of Columbia's

Superior Court from 1984 until being named to the federal court.  Earlier

in her career she worked as an attorney for a Washington psychiatric hospital

and the Justice Department's Criminal Division.

Kollar-Kotelly's relatively short career does not involve antitrust cases and

her expertise lies in the area of criminal law. In a case that received

international attention, she ruled that Iran had to pay $355 million to

relatives of a US Marine who was kidnapped and killed in Lebanon by a group

financed directly by Iran's government.

In a sign that could spell trouble for Microsoft, in two significant cases

Kollar-Kotelly sided with consumers. One case involved a decision against the

powerful banking industry and in another case she ruled in favor of a company

that was making a generic version of a cancer drug.

But the judge also has received criticism for being slow in rendering

decisions. In a fast-moving industry such as computers, and a case as

complicated as the Microsoft antitrust lawsuit, a slow approach could easily

wreck havoc on the case. If she granted an injunction against Windows XP, it

could paralyze Microsoft and its product development. One the other hand,

Windows XP could easily be history by the time she concludes the case, which

would hurt the government's case and the companies that are at risk of being

competed out of business by the inclusion of competing applications in Windows

XP.

Kollar-Kotelly is taking over from Thomas Penfield Jackson who found

Microsoft guilty of antitrust violations and ordered the company split in two.

But the Appeals Court, in June, set aside Jackson's break-up and other

punishment rulings saying Jackson had not given Microsoft sufficient opportunity

to argue against the break-up. They also removed Jackson from the case because

Jackson talked to the media about the case. But the court upheld most of

Jackson's key findings against the company, including that it operates an

illegal monopoly.

Meanwhile, Microsoft is feverishly trying to get Windows XP out into the

market before the new Judge has a chance to force the company to make changes to

the program. This week, Microsoft started shipping Windows XP to computer

manufacturers and is reportedly pushing computer makers to start shipping

computers with Windows XP ahead of the October 25 launch date. Once released in

the market it will be very difficult for the courts to halt Windows XP. But it

is widely expected that the government will quickly move to ask for an

injunction against the software.

To make the release as dramatic as possible, five major computer

manufacturers picked up their master copies of Windows XP during a ceremony at

Microsoft's headquarters. The promptly left aboard a helicopter bound for five

private jets that flew the executives and master copies straight back to their

manufacturing plants.