Judge may soon spill more Microsoft secrets

A federal judge will soon rule on whether to make public more Microsoft confidential information in a class-action lawsuit that accuses the company of deceiving consumers during its 2006 " Vista Capable " marketing program, a court document showed.

In a filing Tuesday, Microsoft asked U.S. District Court Judge Marsha Pechman to keep under seal some of the documents that the plaintiffs had submitted to support their motion for a partial summary judgment. However, the company didn't object to others being released to the public record.

"Consistent with the Court's previous rulings with respect to documents filed under seal, Microsoft has determined that some of the items...need not remain under seal," Microsoft's lawyers said.

The Windows Vista Capable case, which started in 2007, is perhaps best known for the hundreds of internal company e-mails that Pechman unsealed in February 2008. The messages detailed top Microsoft executives' problems with Vista shortly after it was released, and revealed serious disagreement on the part of some with the marketing program.

The class-action lawsuit charges that the Vista Capable logo was put on systems that could run only the lowest-priced and lowest-powered version, Windows Vista Home Basic. That edition, the plaintiffs have claimed, omitted some of the most heavily promoted features of Vista, including Aero, the revamped graphical interface.

Recently, Microsoft has opposed efforts by the plaintiffs' attorneys to force CEO Steve Ballmer to testify , and to use the company's Windows Update service to notify customers that they may be eligible to join the lawsuit.

Yesterday, it asked Pechman to keep some of the sealed documents under wraps, including several involving OEMs (original equipment manufacturers), the term for the larger computer makers, such as Dell Inc. and Hewlett-Packard Co.

Among the documents Microsoft wants to keep secret is a one-page listing of the royalty rates that the company charges OEMs under its Desktop Operating System (DTOS) licensing agreement. The DTOS license is what allows computer makers to pre-install Windows on new machines they sell.

"This Court should seal the royalty rate listing, the deposition testimony, and all references to the royalties...because it has already ruled that the terms of the DTOS License Agreement between Microsoft and its OEM customers are confidential, should be kept sealed, and should not be disclosed to the public," Microsoft's lawyers argued.

Microsoft also asked Pechman to keep sealed a September 2006 marketing bulletin. "Microsoft has a strong interest in keeping the details of its marketing plans confidential," the filing read.

However, the company had no objection to unsealing other information, including the transcripts of multiple witness depositions, and several exhibits that were attached to those transcripts. At least one of the exhibits that could be unsealed had been labeled "Confidential" by Microsoft previously.

Pechman may rule on Microsoft's request as early as Friday, according to the case's calendar.

This story, "Judge may soon spill more Microsoft secrets" was originally published by Computerworld.

Copyright © 2008 IDG Communications, Inc.

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