The remedy — most of which expires in November — has been challenged by California and some other states, which argue that Microsoft continues to abuse its dominant position in the market for computer operating systems.

Thomas Barnett, the Justice Department’s assistant attorney general for antitrust, defended the 2002 consent decree mandating 5-year oversight of Microsoft. “(The) remedy was well-crafted and has been successful,” said Barnett in an appearance at an international antitrust conference at Fordham Law School.

Decree extension

The states want portions of the decree to be extended to 2012, arguing that Microsoft has failed to live up to the agreement. Some portions have already been extended to 2009. Barnett also warned about choosing overly draconian remedies for monopolistic conduct, quoting Hippocrates’ admonition to doctors to, above all, do no harm. “Consider that markets change in ways that could not be predicted. Many formerly big powerful firms are struggling,” he said. Europe’s second-highest court affirmed last week a 2004 European Commission ruling that Microsoft abused its overwhelming market position to crush competitors. The court also upheld a 497 million-euro ($708 million) fine.  Barnett criticised the European court’s ruling accusing it of “chilling innovation and discouraging competition” with its 248-page decision. European Competition Chief Neelie Kroes shot back by saying it was unacceptable for the US administration to criticise an independent court outside its jurisdiction. The transatlantic disagreement over the ruling formed a backdrop to this week’s conference.