United States v. Microsoft Corporation; Public Comments; Notice (MTC-00027805 - MTC-00029647)

Federal RegisterMay 3, 2002

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[Federal Register Volume 67, Number 86 (Friday, May 3, 2002)]

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[FR Doc No: X02-100503]

MTC-00027805

From: Sudha

To: Microsoft ATR

Date: 1/28/02 11:04am

Subject: LOGICAL EXPLANATION--;Freedom to Innovate

Below are comments to specific issues addressed in the Court

Case, http://www.usdoj.gov/atr/cases/ms-settle.htm#docs

Item #2: Someone else please invent a better operating

system than Windows! Also if MS Windows has monopoly, what about

Intel--;would they be ``monopolizing'' the intel chip

market?

Item #3: A better operating system will always win the user

market.

Item #4: How ridiculous! When Netscape owned 70% of the

market, was it not a monopoly?

Item #7: Java is very difficult to learn. Training is

unaffordably expensive.

Item #11: Netscape is NOT the browser innovator--;give

credit to the real innovator, please!!! (universities!)

Item #18: Microsoft has a right to ``tie'' all ITS

products together! Integrating applications makes better use of

system resources.

Item #24, 25: As long as Windows is the operating system

used, the creator of Windows, who is Microsoft, has the right to

present it anywhich way to the users as they please--;basic

human right of ownership!

Additional Comments: Seems to me like other vendors like IBM and

Sun and Netscape had nothing to complain about as long as THEY owned

the lion's share of the market. Their products were difficult to use

and hard to learn.

Microsoft brought the computing technolgy to the layman's door

making it possible for the total computer illiterate people to be

able to actually use the computer in effective and efficient ways,

which would have been totally impossible otherwise!

Sudha

Database Administrator

Department of Human Oncology

Telephone: 608.263.1549

Email:

[email protected]

MTC-00027806

From: Bartucz, Tanya Y.

To: ``microsoft.atr(a)usdoj.gov''

Date: 1/28/02 11:03am

Subject: Tunney Act Comments

Attached please find the Association for Competitive

Technology's Tunney Act comments on the Microsoft settlement. A

paper copy has been submitted by fax.

Tanya Bartucz

Sidley Austin Brown & Wood LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-;8067

Fax (202) 736-;8711

This e-mail is sent by a law firm and may contain information

that is privileged or confidential.

If you are not the intended recipient, please delete the e-mail

and any attachments and notify us immediately.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff, v. Civil Action No. 98-;1232 (CKK) MICROSOFT

CORPORATION, Defendant. STATE OF NEW YORK ex rel.Attorney General

ELIOT SPITZER, et al.,Plaintiffs,) v. Civil Action No. 98-;1233

(CKK) MICROSOFT CORPORATION,Defendant.

COMMENTS OF THE ASSOCIATION FOR COMPETITIVE TECHNOLOGY

The Association for Competitive Technology (``ACT'')

hereby submits its comments on the Revised Proposed Final Judgment

(``RPFJ'') that has been proposed by most of the

plaintiffs, including the United States, and defendant Microsoft

Corporation. ACT is a trade association representing some 3,000

information technology (``IT'') companies, including

Microsoft, on a number of issues important to the industry. ACT's

mission is to promote a vibrant, competitive IT industry and a

vibrant IT marketplace in which consumers, not the government, pick

winners and losers. Because ACT believes that, on balance, the RPFJ

will be good for both the industry and consumers, it supports the

RPFJ. ACT also opposes the radical proposals advanced by the

remaining plaintiffs because they would harm the industry and serve

no other purpose than to advance the interests of such Microsoft

rivals as Sun Microsystems, Oracle, and AOL Time Warner.

INTRODUCTION AND SUMMARY

The purpose of a Tunney Act proceeding is to determine whether

the settlement that the federal government has entered into is

within the reaches of the public interest. United States v.

Microsoft Corp., 56 F.3d 1448, 1460 (DC Cir. 1995) (internal

quotation marks and emphasis omitted). The RPFJ easily meets that

forgiving standard. Indeed, as shown in detail below, this

conclusion is easily established by measuring the RPFJ against four

settled principles that govern relief in all antitrust cases, and by

comparing the RPFJ to the radical remedies that have been proposed

by the States that have refused to consent to the RPFJ

(``Litigating States'').

First, it is well settled that an antitrust remedy should be

designed to protect consumers rather than advance the interests of

competitors. The RPFJ will accomplish this goal. It prevents

Microsoft from engaging in exclusionary or retaliatory tactics, as

well as foreclosing a number of more specific paths to unfair

competition. However, it is carefully crafted to ensure that Windows

will remain available to consumers as a reliable operating platform.

By contrast, many of the Litigating States' proposals seem to

have been designed by Microsoft's competitors. Indeed, the companies

that will benefit most from the Litigating States' efforts are the

same ones that have led the campaign to scuttle settlement efforts

case and to impose far-reaching restrictions on Microsoft: AOL Time

Warner, Sun Microsystems, Oracle, IBM, and Apple. As a prominent

commentator recently noted, Microsoft's enemies were largely

responsible for instigating the lawsuit and were active behind the

scenes in helping the government frame the charges and compile the

evidence. Executives from Sun, AOL, Netscape and other companies

testified against Microsoft. Fred Vogelstein, The Long Shadow of XP,

Fortune, Nov. 12, 2001. Each of these companies dominates a

particular market that is distinct enough from Intel- compatible PCs

not to be a part of this case, but related enough that Microsoft's

rivals fear Microsoft's competition. For example, Sun Microsystems

dominates the market for server operating systems, but its market

share is being eroded by lower-cost alternatives from Linux and

Windows. Why Competitors Are Largely Quiet on Microsoft Settlement,

Associated Press, Nov. 15, 2001; Peter Burrows, Face-Off, Bus. Wk.,

Nov. 19, 2001, at 104. In asking for must-carry provisions for Java,

limits on technical integration and the use of Microsoft middleware,

and restrictions on Microsoft's investment in intellectual property,

Sun seeks to maintain its stranglehold over the server marketplace.

Similarly, Oracle enjoys a privileged position in the server

database market but it, too, is facing stiff competition from lower-

priced alternatives that are gaining increasing favor with reviewers

and customers. As Oracle tries to move into different markets, such

as e-mail, where consumers expect tighter integration, it will be

unable to maintain its high prices unless Microsoft's capacity for

product improvement is limited. Finally, Microsoft and AOL are both

dominant companies, orbiting in separate if overlapping domains. Yet

both companies regard themselves as being on a collision course, as

all forms of information and entertainment, including music and

movies, are increasingly rendered in digital form. Steve Lohr, In

AOL's Suit Against Microsoft, the Key Word Is Access, N.Y. Times,

Jan. 24, 2001. An internal document makes clear that AOL is willing

to take any necessary steps to gain control of the desktop,

including even spreading false rumors about the stability of Windows

XP. See http://www.betanews.com/aol.html.

4 Beyond these companies' own statements and court filings their

views are parroted by various proxies. These include organizations

that were specifically formed to hobble Microsoft, such as the

misnamed Project to Promote Competition and Innovation in the

Digital Age (``ProComp''), and existing trade

organizations that these companies have recently joined and come to

dominate, such as the Computer and Communications Industry

Association (``CCIA'') and the Software Information

Industry Assocation (``SIIA''). The apparently high level

of coordination between these groups and the Litigating States'

counsel is ample reason for skepticism when examining some of the

States' arguments.

The reality is that these rivals, both directly and through

their proxies, are trying to use the courts to increase their own

profits rather than consumer satisfaction. This is shown by the fact

that, while they condemn Microsoft for integrating its products,

they, too, are vying to bring integrated products to consumers. For

example, Sun's SunONE initiative tries to offer the same level of

integration as Microsoft's .Net service. See SunONE, Services on

Demand vision, at http://www.sun.com/software/sunone/

overview/vision/. Not surprisingly, Oracle shares this vision of a

global network of

[[Page 28125]]

centralized information and online services. It envisions an all-

Oracle solution, advising businesses to ``wage their own war on

complexity'' by turning to Oracle for ``an integrated,

complete software suite.'' AOL is likewise promoting its

``AOL anywhere'' strategy, which makes its popular

services and features available to consumers anywhere, anytime

through multiple platforms and mobile devices. Clearly, these

companies do not believe that selling IT products piecemeal best

meets consumers' needs, yet that is what they are trying to force

Microsoft to do.

Second, it is equally well settled that an antitrust remedy

should be tailored to fit the conduct that has been found illegal.

Here, the RPFJ carefully addresses each of the types of conduct that

the Court of Appeals found illegal. It regulates the agreements that

Microsoft can enter into and prevents Microsoft from retaliating

against software or hardware distributors. The RPFJ also gives both

computer manufacturers and consumers more choices in configuring

their computers, and specifically enables them to turn off any

Microsoft middleware and replace it with the middleware of their

choice. And the RPFJ requires Microsoft to disclose technical

information and license its intellectual property to those whose

products interoperate with Windows.

To be sure, the RPFJ in some respects goes beyond the findings

of illegal conduct affirmed by the Court of Appeals. Unfortunate as

that may be, it should not deter the Court from adopting the RPFJ.

As the District Court for the District of Columbia stated in another

context: If courts acting under the Tunney Act disapproved proposed

consent decrees merely because they did not contain the exact relief

which the court would have imposed after a finding of liability,

defendants would have no incentive to consent to judgment and this

element of compromise would be destroyed. The consent decree would

thus as a practical matter be eliminated as an antitrust enforcement

tool, despite Congress' directive that it be preserved.

United States v. American Tel. & Tel. Co., 552 F. Supp. 131,

151 (D.DC 1982), aff'd sub nom. Maryland v. United States, 460 U.S.

1001 (1983) (mem.). Nevertheless, the vast majority of the RPFJ's

provisions respond to the findings that were affirmed by the Court

of Appeals. Virtually all of the proposals by the Litigating States,

by contrast, address areas wholly outside the scope of this case,

such as Microsoft's corporate acquisitions, the Office suite of

programs and, of all things, Microsoft's conduct of its intellectual

property litigation. The Litigating States' proposals should be

rejected for that reason alone.

Third, any antitrust remedy should minimize ``collateral

damage'' to third parties. Here, the RPFJ carefully avoids

serious harm to other sectors of the information technology

industry.

The Litigating States' proposals, by contrast, would inflict

enormous damage on the rest of the industry. Perhaps most important,

their proposals would fragment the Windows standard and, in turn,

profoundly disrupt other businesses that rely upon it. The

Litigating States' proposals would also weaken intellectual property

protections, setting an unnerving precedent for any IT firm aspiring

to lead its market, and slow the pace of research and development in

the IT field. Fourth, an antitrust remedy should be easy to

administer, and not be regulatory. The Litigating States, in an

effort to impose their concept of ``competition'' in the

information technology industry, would create a court-run agency to

supervise Microsoft's every move and to judge its every action. In

contrast, the RPFJ would create a more independent, more limited

supervisory body that would have full access to Microsoft

information, but that would not combine the roles of prosecutor and

judge. This too counsels strongly in favor of the RPFJ, and against

the proposals advanced by the Litigating States.

The remainder of these Comments is organized as follows. Section

I summarizes and explains in more detail the four principles that

are pertinent to the District Court's determination of whether the

RPFJ is within the reaches of the public interest. Microsoft, 56

F.3d at 1460 (internal quotation marks and emphasis omitted).

Section II applies these principles to the RPFJ and, for comparison

purposes, to the proposals advanced by the Litigating States.

I. THE PROPER ANALYTICAL FRAMEWORK FOR EVALUATING ANTITRUST

REMEDIES.

Antitrust law recognizes that competition gets its vigor from

the urge to win. A desire to ensure that all competitors will do

equally well makes robust competition impossible and sets the stage

for price-fixing and similar behavior. Accordingly, antitrust law

and antitrust remedies are designed to foster real competition, so

that consumers and the wider economy can ultimately benefit. Thus,

while competitors I driven by their own urge to win I may try to

misuse antitrust law to further their own goals, government agencies

and courts should be vigilant to ensure that their power is used in

consumersO interests rather than competitorsO. The case law on

remedies generally I and antitrust remedies in particular I supports

the goal of harnessing competition. A close reading of that case law

reveals four specific principles that promote that goal, and that

are dispositive here.

A.Any Remedy Must Have A Probability Of Benefiting Consumers,

And Not Be Designed to Punish the Defendant Or, Worse, To Enhance

The Position Of the Defendant's Rivals.

Perhaps the most important principle of antitrust law is that

any remedy must be designed to benefit consumers, not just punish

the defendant or enhance the position of the its rivals. The law is

clear that, in a civil antitrust case, any injunctive remedy must

be, as its name suggests, remedial rather than punitive. E.g.,

United States v. E. I. Du Pont de Nemours & Co., 366 U.S. 316,

326 (1961); International Salt Co. v. United States, 332 U.S. 392,

401 (1947); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Moreover,

as Judge Robert Bork has shown in his famous book, The Antitrust

Paradox, the entire purpose of antitrust law is promotion of

consumer welfare, not the protection I or enhancement I of

competitors. Robert H. Bork, The Antitrust Paradox 51, 56-;89

(1978); see also National Collegiate Athletic Ass'n v. Board of

Regents, 468 U.S. 85, 107 (1984).

It follows that any remedy must have as its principal purpose

the promotion of consumer welfare. And, as the District Court

recently noted, the states have the burden of establishing the

efficacy of every element of the proposed relief in achieving that

objective. Hearing Tr., Sept. 28, 2001, at 8, United States v.

Microsoft, No. 98-;1232 (D.DC). For two reasons, it is doubtful

that any remedy at all is needed to protect consumers in this case.

First, it appears that the particular conduct at issue in this case

has never harmed consumers in any meaningful sense. The government's

own witness, Professor Frank Fisher of

MIT, testified during the trial that the narrow conduct found

unlawful by the Court of Appeals had not harmed consumers at all.

When asked by plaintiffsO counsel whether that conduct had harmed

consumers, Fisher replied: [O]n balance, I would think the answer

was no, up to this point. Trial Tr., Morning of Jan. 12, 1999, at 29

(Fisher), United States v. Microsoft Corp., 87 F.Supp.2d 30 (D.DC

2000), aff'd in part, rev'd in part, 253 F.3d 34 (DC Cir.), cert.

denied, 122 S.Ct. 350 (2001).

If Microsoft's conduct did not harm consumers even on balance it

is difficult to see how any remedy is now needed to protect them.

But if any remedy is needed, the Court must be careful not to risk

harming consumers by adopting remedy proposals such as those

advanced by the Litigating States remedies which, to paraphrase

Abraham Lincoln, are of the competitors, by the competitors, and for

the competitors.

Second, even if Microsoft's conduct could have harmed consumers

in some way, any such risk has now abated. This entire case is

premised on the assertion that Microsoft enjoys market power by

virtue of the fact that a high percentage of IBM-compatible PCs use

Windows as their operating system. Whether or not that was true when

the case was tried, such knowledgeable industry observers as Sun's

president have effectively conceded that whatever market power

Windows might once have given Microsoft is now virtually a thing of

the past. For example, in his January 3, 1999 interview on 60

Minutes, Scott McNealy rejected Leslie Stahl's suggestion that with

its Java software, Sun now ha[d] a chance to make Windows obsolete.

Instead, McNealy retorted, Windows is obsolete, [and] we have a

chance to show the world that it is. 60 Minutes (CBS Television

Broadcast, Jan. 3, 1999). McNealy elaborated this theme in a

subsequent Wall Street Journal op-ed piece, which appeared more than

two years ago. He asserted that, because of the growth of the

Internet, [a]

few years from now, savvy managers won't be buying many, if any,

computers. They won't buy or build anywhere near as much software

either. They'll just rent resources from a service provider,

primarily over the Internet. Scott McNealy, Why We Don't Want You to

Buy Our Software, Wall St. J., Sept. 1, 1999, at A26. McNealy's

predictions are already being borne out. A recent article

[[Page 28126]]

assessed the changes in the operating system market. It noted that

Microsoft's main markets are maturing and the entire ground under

its empire is shifting. Market researchers expect PC sales worldwide

to drop [in 2001] and at best to stagnate in 2002. What is more,

software is increasingly a service delivered over the Internet,

meaning that operating systems are no longer central. Microsoft:

Extending Its Tentacles, The Economist, Oct. 20-;26, 2001, at

59. Thus, whatever market power Microsoft now possesses is rapidly

being eroded, or is already effectively gone. In short, because

Microsoft's present market power is limited at best and will be

further eroded in the near future, there is no need for antitrust

remedies. See also William E. Kovacic, Designing Antitrust Remedies

for Dominant Firm Misconduct, 31 Conn. L. Rev. 1285, 1314 (1999)

(explaining that rapid technological change can indicate the

instability of market power, and therefore to the need for milder

remedies). At a minimum, any antitrust remedy must take into account

the dramatic decline in any market power Microsoft might previously

have enjoyed, and be limited accordingly.

B. The Remedy Should Be No Broader Than Necessary To Address The

Conduct That The Court Of Appeals Held Illegal.

Another principle that must guide the analysis of any proposed

antitrust remedy is that it must be no broader than necessary to

address the conduct that has been found illegal. As with all

injunctive relief, the substantive prerequisites for obtaining an

equitable remedy as well as the general availability of injunctive

relief ... depend on traditional principles of equity

jurisdiction. Grupo Mexicano de Desarollo, S.A., Inc. v. Alliance

Bond Fund, 527 U.S. 308, 319 (1999) (quoting 11A C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure u 2941, at 31

(2d ed. 1995)). And one of these traditional principles of equity

jurisdiction, id., is that an injunction should be no more

burdensome than necessary to prevent a recurring violation of the

law. See generally Madsen v. Womens Health Center, 512 U.S. 753, 765

& n. 3 (1994), and cases cited therein. This is as true in

antitrust as in other areas of the law. For example, in the Lorain

Journal case, which Robert Bork believes is the closest to this one,

the Court noted that, [w]hile the decree should anticipate

probabilities of the future, it is equally important that it ... not

impose unnecessary restrictions. 342 U.S. at 156. The Court of

Appeals recognized this principle when it instructed the District

Court that any remedy should be tailored to fit the wrong creating

the occasion for the remedy, Microsoft, 253 F.3d at 107, i.e., that

it should be focused on the conduct [the court] has found to be

unlawful and should be limited to provisions that are required to

rectify [Microsoft's] monopoly maintenance violation, id. at 104,

105.

Consistent with these principles, since at least 1911 it has

been the law in antitrust cases that ordinarily ... [an] adequate

measure of relief would result from restraining the doing of such

[illegal] acts in the future. Standard Oil Co. v. United States, 221

U.S. 1, 77 (1911) (emphasis added). In other words, an injunction

simply forbidding the specific conduct found to

Normally, of course, a settlement is reached before a trial on

the merits. In that situation, it is clear that a reviewing court

cannot expand an antitrust decree to remedy perceived problems that

lie outside the scope of the complaint. That was the thrust of the

Court of Appeals' 1995 Microsoft decision, 56 F.3d 1448.

Furthermore, any such action by a reviewing court would most likely

be unconstitutional. Id. at 1459; see also Maryland v. United

States, 460 U.S. 1001, 1006 (1983) (Rehnquist, J., dissenting).

Here, of course, the Court of Appeals has affirmed some of the

district court's findings of liability. Expanding the remedy to

address issues as to which liability has not been proven let alone

issues as to which liability has never been alleged would clearly

exceed the District Court's power.

be illegal is ordinarily considered sufficient. Or, as the

District Court recently explained, the scope of any proposed remedy

must be carefully crafted so as to ensure that the enjoin[ed]

conduct falls within the . . . behavior which was found to be

anticompetitive. Hearing Tr., Sept. 28, 2001, at 8.

Some commentators have nevertheless argued that the District

Court is obligated to terminate Microsoft's dominant market

position, which they characterize as an illegal monopoly. Jennifer

Bjorhus, Settlement Draws Frustration From Few Tech Giants That

Spoke Out, San Jose Mercury News, Nov. 3, 2001, at 20A. But this

argument rests on a misinterpretation of the pertinent case law,

including the Court of Appeals' decision. Contrary to this argument,

the law does not require that a remedy attempt to recreate the world

as it might have existed absent the violation or deprive a defendant

of the proceeds of its business. Instead, where a violation is

found, the remedy, as the Court of Appeals pointed out, should be

designed to unfetter' the market from the anticompetitive conduct.'

Microsoft, 253 F.3d at 103 (quoting Ford Motor Co. v. United States,

405 U.S. 562, 577 (1972)) (emphasis added).

That, moreover, is why the Court of Appeals placed heavy focus

on the requirement that, before a court can seek to undo an alleged

monopoly, there must be a significant causal connection between the

allegedly illegal conduct and the existence of that monopoly. The

District Court recently echoed this same theme when it remarked that

it intended to fashion an injunction that would avoid a recurrence

of the violation and . . . eliminate its consequences. Hearing

Transcript, Sept. 28, 2001, at 9 (emphasis added).

There is a vast difference between unfettering or unshackling a

market from prior anticompetitive behavior, and attempting to

reconstruct the market as it might have existed absent that conduct.

The former is a legitimate objective of an antitrust remedy; the

latter is not.

In the District Court's words, attempting to reconstruct the

market as it might have been absent the conduct at issue goes well

beyond simply eliminating the consequences of anticompetitive

conduct. Antitrust law does not attempt to recreate or to maintain

by detailed regulation a perfect world. Its goal is to restore

competition, including legitimate competition by the dominant firm.

Ford Motor Co. v. United States, 405 U.S. 562, 577-;78 (1972).

C.The Remedy Should Avoid Or Minimize Collateral Damage To The Rest

Of The IT Industry.

Another traditional principle[] of equity jurisdiction,' Grupo

Mexicano, 527 U.S. at 319, is that any relief imposed by a court

should not inflict unnecessary harm on third parties. Atchison,

Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412

U.S. 800, 824 (1973) (plurality opinion); Gilbertville Trucking Co.

v. United States, 371 U.S. 115, 130 (1962). In this case, there is a

real risk of harm to the entire IT industry as well as consumers. As

explained in the attached affidavit of ACT's president, Jonathan

Zuck, (Exh. A) both consumers and IT companies derive enormous

benefits from the existing Windows platform. For IT companies in

general, and ACT's members in particular, that platform is unusually

valuable and important for at least three reasons.

1. Constant Improvement and Addition of New Features and

Functionalities. One reason Windows is so valuable to the IT

industry is that Microsoft has constantly improved it. For example,

as Mr. Zuck explains, each new release of Windows contains software

drivers for the major new printers and other peripheral devices that

have been released since the prior version of Windows. This means

that developers of applications such as money management software,

graphics programs, etc., do not need to create their own drivers for

these devices or, worse, choose from among several competing

drivers. Affidavit N 7.

Virtually everyone in the IT industry, moreover, has a strong

interest in seeing this trend continue in the future. The addition

to Windows of such new functionalities as voice recognition, for

example, will allow software developers to add such features to

their products at minimal cost. Those costs will increase

dramatically and consumer benefits will be reduced if software

developers are forced to develop their own voice recognition

features or, worse, to port their programs to several competing

voice-recognition programs. Id. N 8. 2.Windows' Uniformity and

Widespread Acceptance. Uniform standards are likewise crucial to an

efficient, rapidly evolving IT sector. As Mr. Zuck explains,

communications and Internet standards provide the language necessary

for many different computers to talk or network with one another,

enabling, for example, users of the World Wide Web to locate and

retrieve the information they seek. Operating systems perform a

similar function, allowing hardware devices and software

applications to communicate with a computer. Indeed, it is Windows'

consistency that makes it so valuable.

As the Court recognized in its Findings of Fact, Windows exposes

a set of application programming interfaces' that lets software

interact in a consistent way with any Intel- compatible PC. United

States v. Microsoft Corp., 84 F. Supp. 2d 9, 12-;13 (D.DC 1999)

(Findings of Fact). This means that the same software will run on

all Windows-based PCs

[[Page 28127]]

and, by and large, all hardware devices can be used as well.

Affidavit N 10. Hence, the consumer avoids the need for time-

consuming, often expensive retraining, and thus has a greater

incentive to learn how to use the existing system. Also, the

widespread acceptance that Windows enjoys makes it easier to ensure

that computer products (both hardware and software) work the way

they are supposed to, and work well with each other. Operating

system consistency usually means that software will operate normally

even if the type of computer changes. For example, WordPerfect will

function as advertised on a Windows-based Dell computer or a

Windows-based Compaq computer. Id.

For these reasons, as Mr. Zuck explains, the cost per potential

customer of developing a piece of software for the Windows operating

system is significantly lower than the cost for the UNIX operating

system. And that, of course, translates into more software and lower

prices for consumers. Id. N 13.

In addition, more than any other operating system, Windows has

remained compatible with software written for older Windows

versions. As a result, consumers have much greater confidence that

the software they purchase will work when they upgrade to a new

Windows release. Hardware manufacturers and developers similarly

face much less risk that their research and development expenditures

will be stranded if Microsoft releases a new version. Id. N 14.

3. Windows' Low Cost to Consumers. The Windows operating system

also allows the developer, or other providers of support services,

to support end-users at minimal cost. As Mr. Zuck explains, each

operating system not only has signature application interfaces and

user commands, it also presents its own set of bugs and system

errors. Thus, to provide software or

In its consistency from one computer and software program to

another, Windows is markedly different from the UNIX operating

system. That system is in reality a collection of similar operating

systems, including Sun's Solaris, Digital's UNIX, HP's HP-UX, IBM's

AIX and SCO's UnixWare. See http://www.techweb.com/encyclopedia/

defineterm?term=unix. Although different versions may be desirable

with respect to many products, for most computer users such a

proliferation promises nothing but confusion, lost time, fewer

applications, and higher prices. For example, a consumer who shifts

from one UNIX-based computer to another UNIX- based computer may

find that the two computers use different UNIX versions with

different features, functions, and idiosyncrasies. Consequently, the

consumer may have to devote considerable time and expense learning

how to perform the same tasks on the second UNIX- based computer

that she already knew how to perform on the first platform. Worse

still, the software applications or hardware equipment she purchased

for and used on the first computer may be incompatible with the

version of UNIX installed on the second computer. And a UNIX user

obviously has less incentive to develop skills tailored to her

particular system if it is likely that she will use a different UNIX

operating system in the future. Affidavit NN 11-;12.

15 hardware support, a developer must train personnel to

identify and understand the idiosyncrasies of each operating system

under which it markets its product. These increased support costs

increase prices and decrease consumer demand for products and

services. Id. N 15. Consumers, moreover, obtain all of these

benefits inexpensively. Compared to the cost of a typical PC, and to

the cost of the software typically installed on that PC, the cost of

Windows (at about 5% of the PC's price) is relatively small. A low

price, coupled with all the benefits stemming from Windows'

widespread use, drives up demand by making computer products more

affordable and attractive to consumers. Id. N 16.

As Mr. Zuck explains, the widespread use of an inexpensive,

constantly evolving operating system is particularly important in an

industry as dynamic as the information technology industry, which

constantly generates both new products and new uses for those

products, and for which new developments such as the Internet can

redraw the competitive landscape overnight. A popular operating

system like Windows allows consumers and developers to act quickly

and with confidence that software and hardware will work on most PCs

today and in the future. And the fact that many consumers choose

Windows adds a measure of stability to a highly dynamic industry.

For all these reasons, any remedy that resulted in the

balkanization of Windows would have a disastrous effect on the

entire IT industry. Software developers, Internet access providers,

and others rely on the widely installed, constantly improving

Windows platform as the groundwork for their own products. If there

were no consistent platform, software developers would have to try

to port their products to various operating systems, increasing

those products' costs substantially, or else they would have to

accept a much smaller market share.

This, too, would drive up prices because the cost of

distributing software is tiny compared to the cost of developing it.

Windows' importance as a consistent platform is illustrated by

the fact that, when it appeared that Microsoft might be broken up,

stock prices in the rest of the IT industry fell. Kenneth G.

Elzinga, David S. Evans, Albert L. Nichols, United States v.

Microsoft: Remedy or Malady?, 9 Geo. Mason L. Rev. 633 (2001).

Likewise, any remedy such as those proposed by the Litigating States

that would fragment Windows would be unlawful because of the harm it

would impose on third parties.

D. The Remedy Should Be Judicially Administrable, Not

Regulatory.

Finally, any remedy should be judicially administrable and not

put the courts in the position of having to oversee product design.

United States v. Microsoft Corp., 147 F.3d 935, 948 (DC Cir. 1998).

Some have suggested that the kinds of extreme remedies proposed by

the Litigating States are in some sense alternatives to regulation.

But history suggests quite the opposite.

In 1982, for example, AT&T entered into a consent decree

designed to remedy what the government perceived as anticompetitive

practices, and to allow AT&T to compete in new markets. Then

too, the provisions of that decree were touted as an alternative to

regulation. But in practice, the break-up of AT&T generated

pervasive judicial participation in the telecommunications industry.

For example, between 1984 and 1995, the court ruled on over 250

waiver requests pursuant to the consent decree. Most of these were

necessary to allow the companies spun off from AT&T to respond

to market developments that had not been anticipated when the decree

was entered. Although 96 % of the requests were eventually approved,

the average delay prior to approval was four years. It is not

surprising, then, that Congress put the court out of the

telecommunications business when it passed the Telecommunications

Act of 1996.

This kind of intrusive, time-consuming regulation is

particularly ill-suited to a rapidly- changing industry such as IT.

For example, many settlement opponents have made proposals resting

on a distinction between middleware and the operating system. But

this distinction is dubious even now, and is rapidly being eroded.

The federal courts are not equipped to draw lines in the shifting

sands of information technology.

Notwithstanding this reality, some settlement opponents have

proposed ongoing regulation of Microsoft's conduct, or detailed

enforcement provisions envisioning ongoing judicial involvement in

Microsoft's management. Some have even proposed egregious private

attorney general provisions that would simply foment litigation and

enrich plaintiff's lawyers. All of these proposals would create the

kinds of problems that arose in abundance in the wake of the

AT&T consent decree.

Other cases demonstrate the dire consequences that can arise

when courts attempt to regulate an industry under the guise of an

antitrust decree. For example, in United States v. United Shoe

Machinery Corp., 110 F. Supp. 295 (D. Mass. 1953), aff'd, 347 U.S.

521 (1954), the district court imposed extensive regulation on the

shoe machinery industry over a ten-year period. The remedies were

meant to end United's practice of distributing shoe machinery

through long-term leases and to make shoe machinery available from a

variety of sellers. To this end, the court restricted lease terms,

required United to offer its machines for sale in addition to

leasing them, and required United to charge separately for services

such as repairs. Id. at 352-;53. However, a 1993 study

concluded that the court order destroyed many efficiencies arising

out of the technical realities of the shoe manufacturing industry,

impaired the quality of United's performance, and likely contributed

to the dramatic decline of the domestic shoe industry in the 1960s

and beyond. Scott E. Masten & Edward A. Snyder, United States v.

United Shoe Machinery Corp.: On the Merits, 36 J.L. & Econ. 33

(1993); see also Lino A. Graglia, Is Antitrust Obsolete?, 23 Harv.

J.L. & Pub. Pol'y 11, 17 (1999). For all these reasons, judicial

regulation of the IT industry, or any portion of that industry, is

to be avoided at all costs.

Indeed, that appears to be the main message of the DC Circuit's

earlier decision

[[Page 28128]]

rejecting the preliminary injunction that the Government sought.

Microsoft, 147 F.3d at 948 (Antitrust scholars have long recognized

the undesirability of having courts oversee product design, and any

dampening of technological innovation would be at cross-purposes

with antitrust law.). And the Court of Appeals' most recent decision

is entirely consistent with that message. Microsoft, 253 F.3d at

101-;07. Indeed, even Judge Jackson has acknowledged that in

this case, as in others: The less supervision by this court, the

better.' John R. Wilke, For Antitrust Judge, Trust, or Lack of It,

Really Was the Issue, Wall St. J., June 8, 2000, at A1.

II. THE RPFJ IS CONSISTENT WITH ALL OF THESE PRINCIPLES, WHEREAS

THE PROPOSALS BY THE LITIGATING STATES AND OTHER CRITICS WOULD

VIOLATE EVERY ONE OF THEM.

On balance, the RPFJ complies with these four principles and is

therefore in the public interest. Like most settlements, it is less

than perfect. However, the purpose of this proceeding is not to

produce a perfect order. The court must review the settlement that

the parties have agreed to, and enter it so long as the proposal

falls within the reaches of the public interest.' Microsoft, 56 F.3d

at 1458 (DC Cir. 1995) (emphasis in original; citations omitted);

see 15 U.S.C. u 16(e) (Before entering any consent judgment proposed

by the United States under this section, the court shall determine

that the entry of such judgment is in the public interest.).

It is clear that entry of the RPFJ is in the public interest.

The federal government has explained at length in its Competitive

Impact Statement that the RPFJ will provide a prompt, certain and

effective remedy for consumers by enjoining the conduct that the

Court of Appeals found to be illegal, and by restoring competitive

market conditions. Competitive Impact Statement at 2, United States

v. Microsoft, No. 98-;1232 (D.DC Nov. 15, 2001) (CIS). Each of

the Court of Appeals' findings of anticompetitive conduct is

addressed by at least one provision of the proposed final judgment.

See Exh. B (table showing which provisions address each finding of

illegality). Indeed, the RPFJ's provisions regarding server

protocols, and its enforcement provisions, extend beyond the

anticompetitive conduct found by the Court of Appeals. Accordingly,

any notion that the RPFJ only tells Microsoft to go forth and sin no

more, United States v. Microsoft Corp., 159 F.R.D. 318, 334 (D.DC

1995), rev'd, 56 F.3d 1448 (DC Cir. 1995), is ludicrous.

In contrast, the Litigating States and other critics of the RPFJ

have proposed a variety of radical remedies that they claim would be

more effective than the RPFJ in restoring competition. However,

these proposals violate the four principles described above, and are

in fact designed to benefit Microsoft's competitors. Indeed, these

proposals would advantage Microsoft's competitors in areas other

than PC operating systems, which is the only market at issue in this

case. Moreover, rather than seeking to restore competition, these

proposals and others like them seek to impose a court-designed,

court-regulated regime that is especially inappropriate for a

rapidly changing area such as IT. A principle-by-principle analysis

highlights the flaws in these proposals.

A. The RPFJ Is Designed To Benefit Consumers, Whereas The

Litigating States' Proposals Are Designed To Benefit Microsoft's

Competitors.

As noted above, the most vital principle in designing an

antitrust remedy is that it must be designed to benefit consumers

rather than competitors. Unlike the Litigating States' proposals,

the RPFJ easily complies. Consumers will benefit from the guaranteed

flexibility and choice provisions in the RPFJ. All new Microsoft

operating systems, including Windows XP, will have to allow end

users to readily remove or re-enable Microsoft's middleware products

such as its Internet browser, instant messaging tools, media player,

and email utilities. While end users can already remove Microsoft

middleware from Windows XP, the RPFJ will make it easier for users

to switch and compare among competing middleware products, including

those installed by computer manufacturers and those readily

accessible over the Internet. Most importantly, the RPFJ preserves

the integrity of the Windows standard while making it easier for

other platforms to compete with Windows. As discussed above, the

network effects that characterize the operating system market mean

that consumers and the IT industry both benefit when they know that

the platform they rely on is widely used, and will continue to be

widely used in the future. Findings of Fact at 19-;23; see also

Affidavit NN 9-;14. By and large, the RPFJ avoids requirements

that would encourage the emergence and sale of multiple,

incompatible operating systems under the Windows brand name. At the

same time, the RPFJ protects Microsoft's competitors in several

ways. Most importantly, it forbids retaliation against OEMs, u

III.A, requires uniform license terms for the twenty largest OEMs, u

III.B, and prevents Microsoft from including various restrictive

provisions in OEM licenses, u III.C. Thus the RPFJ opens up the

valuable OEM distribution channel to competitors, addressing the

Court of Appeals' most substantial concerns. By increasing

competitors' access to OEMs and by preventing Microsoft from

negotiating quotas with IAPs, the RPFJ reasonably ensures that

consumers will have access to whatever products they want.

By contrast, a central thrust of the Litigating States'

proposals is to break Microsoft's control over the Windows brand.

Forcing Microsoft to break up Windows into what a court conceives of

as its component parts both destroys the utility of the standard

Windows platform and entangles judges in a maze of technical

regulation that they are poorly equipped to solve. If implemented,

the LSPFJ would result in the creation of as many as 4,000 different

versions of Windows, each requiring support not only by Microsoft

but also by OEMs, software developers, and other IT professionals.

This outcome would worsen, not improve, the lot of consumers. It

would only serve to weaken Microsoft's product offerings, confuse

users, drive up prices, and limit software choices.

Such remedies would also create concerns about privacy and

security. Consumers are concerned and rightly so about on-line

privacy and the security of their electronic information. E.g. David

Ho, Identity Theft Tops Fraud Complaints, Wash. Post, Jan. 24, 2002

at E4. Because Microsoft would have almost no control over access to

its code and to its technical information under the states' plan,

hackers and other unsavory characters would find it much easier to

penetrate the most common privacy and security protections. It would

also be harder for Microsoft to control computer piracy, which in

the end drives up prices to consumers. By making the fruits of

Microsoft's innovations readily available to competitors, the

Litigating States' proposals would also harm consumers by reducing

Microsoft's incentive to innovate in the future. Indeed, it is

likely that Microsoft's research and development budget, which has

historically been the largest in the industry, would be

substantially reduced to the 22 detriment of consumers. Property

ownership is the cornerstone of a free market system; as property

rights are eroded, so is the incentive to put that property to its

most valuable use. Beyond these problems, the Litigating States'

proposals are patently designed to provide specific benefits to

Microsoft's principal competitors, and to reinforce their dominant

positions in markets that are irrelevant to this litigation. This

approach to remedies is contrary to the interests of consumers and

the rest of the IT industry, and contrary to antitrust law. Benefits

to AOL Time Warner. Some of the Litigating States' proposals will

directly benefit AOL Time Warner. For example, the Litigating

States' proposal to break Microsoft's control over the Windows

brand, and the proposed prohibition on making Microsoft middleware

the default for any functionality, LSPFJ u 10, unless the OEM or

other licensee can override the setting and designate a different

default or give the end-user a neutrally presented choice means that

consumers who think they are buying a coherent, integrated operating

system designed by Microsoft will get something quite different.

To see how this benefits AOL, consider the following scenario:

AOL's Magic Carpet service will compete with Microsoft's .Net

services. If Microsoft designates .Net as a default service in

Windows, AOL can ask computer sellers to re-direct the default to

Magic Carpet. Indeed, AOL's strategy is to do just that. Alec Klein,

AOL to Offer Bounty for Space on New PCs, Wash. Post, July 26, 2001,

at A1 (In internal AOL documents, the media giant lays out a

strategy that calls on manufacturers to build into their new

personal computers icons, pop-up notices and other consumer messages

aimed at pushing aside Microsoft by giving AOL's own products

prominent placement on PCs. It's the latest foray in an intensifying

feud between the two technology titans over consumers and supremacy

on the Internet.) Yet this hybrid product will still be marketed as

a Windows system, making Microsoft responsible in consumers' eyes

for programs it has no control over, and giving AOL a free ride on

Microsoft's reputation and marketing.

Other users will be provided with a bewildering array of

choices, all presented in a neutral manner, i.e. without guidance as

to what product best suits their needs. Yet sophisticated users who

have information

[[Page 28129]]

about middleware alternatives do not need neutrally presented

choices to help them make their decisions. Less sophisticated

consumers are entitled to get the brand they paid for, or at least

to be told how to get that brand. The RPFJ's Section III, by

contrast, puts Microsoft and its competitors on a level playing

field, with minimal judicial intervention.

Benefits to Sun Microsystems. Another Microsoft rival, Sun,

would also benefit directly from the Litigating States' proposals.

Sun would benefit most obviously from the proposal that Microsoft

include Sun's Java with every copy of Windows. LSPFJ u 13.

Apparently Sun sees no conflict between that proposal and the

proposal that Microsoft make available middleware- free versions of

Windows at reduced prices. It is hard to argue that this requirement

would benefit consumers, who can already get Sun's Java free from

those web sites that use it. The federal government's settlement

with Microsoft will make Sun's Java even easier for consumers to

obtain by allowing OEMs, IAPs, and ISVs to provide it to their

customers without fear of retaliation. But under the Litigating

States' proposal, all consumers would have Sun's Java forced on

them.

Benefits to IBM and Apple. The Litigating States' proposals also

benefit IBM and Apple, giving them each an Office suite. IBM wants

Office for Linux, and under the Litigating States' proposal it will

get its wish by snatching Microsoft Office source code at the

auction price. Under that proposal, Microsoft must maintain and

support Office for the Macintosh even if it is a money-losing

proposition. And if Apple is unhappy with the Office support

Microsoft has to provide, it can snatch the source code at auction,

and have an Office all its own. LSPFJ u 14. These porting proposals

go far beyond the scope of this case, which is the Windows operating

system market.

Conversely, the federal government's settlement with Microsoft

addresses the Court of Appeals' only holding of anticompetitive

behavior involving Apple, namely the agreement that Apple would

distribute Internet Explorer exclusively. Under the RPFJ, Apple,

like all ISVs, is free to distribute and promote non-Microsoft

platform software without fear of retaliation. The states' proposal

would give a free ride to a handful of companies and would impose an

unnecessary burden on Microsoft but would not benefit consumers.

The states' proposals also provide free source code for

Microsoft's Internet Explorer, LSPFJ u 12, giving IBM a good browser

for the entire line of IBM computers and Apple a leg up on its

software design. But once again, the problem with all this

generosity is that its sole purpose is to benefit competitors and

harm Microsoft, not to benefit consumers.

B. The RPFJ Is Narrowly Tailored To The Court Of Appeals'

Ruling, Whereas The Litigating States' Proposals Go Well Beyond It.

Another key flaw in the Litigating States' proposals is that

they go well beyond the Court of Appeals' ruling. Indeed, the

sweeping scope of the Litigating States' proposals suggests that

they mistakenly read the Court of Appeals' decision on liability as

a broad affirmance, rather than as it was in fact a reversal in part

containing very precise, narrow holdings on liability. Indeed, the

DC Circuit reversed the District Court's findings that Microsoft had

committed attempted monopolization and illegal tying.

As to the remaining findings, the Court of Appeals affirmed only

some of the District Court's findings that Microsoft had illegally

maintained its monopoly. Microsoft, 253 F.3d 34.

The Court of Appeals held that some exclusionary contracts and

negotiating tactics were unlawful; that Microsoft had acted

illegally in deceiving developers about its own Java language; and

that Microsoft had illegally excluded Internet Explorer from its

Add/ Remove facility and intermingled its Internet Explorer and

operating system code. The Court also emphasized that, on remand,

the District Court must base its relief on some clear indication of

a significant causal connection between the conduct enjoined or

mandated and the violation found directed toward the remedial goal

intended.' Id. at 105 (quoting 3 Philip E. Areeda & Herbert

Hovenkamp, Antitrust Law N 653(b), at 91-;92 (1996)).

Section III of the RPFJ addresses each of these holdings. As to

exclusionary contracts and high-pressure negotiations, the RPFJ

forbids Microsoft to retaliate against OEMs, u III.A; requires

Microsoft to sell Windows to the twenty largest OEMs under uniform

license terms, u III.B; and forbids retaliation against, or

exclusionary agreements with, ISVs or IHVs, u III.G, u III.F. As to

Java, the RPFJ requires disclosure of information needed to design

other software to be fully compatible with Windows, u III.D, and

requires Microsoft to license its intellectual property to rivals, u

III.I. As to Internet Explorer, the RFPJ forbids Microsoft to

restrict any OEM from modifying their computer interfaces in various

ways, such as removing the Internet Explorer icon, u III.C, and

requires Microsoft to allow end-users to remove access to Microsoft

Middleware or to designate a non-Microsoft middleware product as the

default instead of the Microsoft product, u III.H.

The Court of Appeals was also quick to note that much of the

conduct that Microsoft was accused of and even conduct that was

found to be anticompetitive in particular settings is common in

business, and is usually not anticompetitive. But the states'

proposed categorical bans sweep in a host of pro-competitive

conduct, in disregard of the Court of Appeals' instruction that any

remedy be narrowly tailored to specific holdings of illegality. For

example, the states would ban exclusive dealing across the board.

Yet the Court of Appeals explained that: ``exclusive contracts

are commonplace especially in the field of distribution in our

competitive, market economy, and imposing upon a firm with market

power the risk of an antitrust suit every time it enters into such a

contract, no matter how small the effect, would create an

unacceptable and unjustified burden upon any such firm.''

Microsoft, 253 F.3d at 70.

Similarly, the proposed judgment reflects an implacable

hostility to integrating an internet browser or any additional

functionality with the basic Windows operating system. Yet, as the

Court of Appeals observed, [a]s a general rule, courts are properly

very skeptical about claims that competition has been harmed by a

dominant firm's product design changes. Id. at 65.

In perhaps the Litigating States' most egregious proposal, Sun

CEO Scott McNealy got a special gift he has always wanted, see Peter

Burrows, Face-Off, Bus. Wk., Nov. 19, 2001, at 104, --; the

ability to stop Microsoft from buying anything that could help it

compete with Sun. If Microsoft wants to make an acquisition, an

investment, or an exclusive license, it must notify the plaintiff

states' attorneys two months in advance. LSPFJ u 20. The states make

this proposal despite the total absence of any takeover-related

findings anywhere in this case. It was precisely this type of

overreaching that the Court of Appeals soundly rejected in 1995,

when it reversed Judge Sporkin's refusal to approve the federal

government's settlement with Microsoft and reassigned the case to a

different district judge. Microsoft, 56 F.3d 1448. Judge Sporkin had

gone beyond the complaint to try to force the parties to address his

own concerns about vaporware. The Court of Appeals found that effort

inappropriate. And it is no more appropriate for the Litigating

States, at this late date, to try to drag in new issues and punish

Microsoft for conduct that it never had a chance to defend. If a

claim is not made, a remedy directed to that claim is hardly

appropriate. Id. at 1460.

Another example of overreaching is buried in the Litigating

States' proposals regarding orders and sanctions, and which singles

out for punishment any groundless claim Microsoft makes of

intellectual property infringement. Again, Microsoft's conduct in

intellectual property litigation is no part of this case.

Finally, the Litigating States' proposed ban on retaliation

against those who participated in the litigation is not grounded in

any finding of illegality, even though Microsoft has been enmeshed

in antitrust cases for years and has presumably had ample

opportunity to retaliate unhindered. The RPFJ retaliation ban, in

contrast, is clearly aimed at the possibility that Microsoft might

try to punish companies that do not cooperate with Microsoft's

business goals. The Court of Appeals envisioned that Microsoft would

continue its normal business relations, albeit with injunctions in

place against specific conduct found to be anticompetitive. The RPFJ

provision implements that vision, while the states' proposal would

open the door to unfounded claims of retaliation by any disgruntled

participant in the litigation.

Of course, the RPFJ itself is overbroad in some respects.

Yet despite these problems with its scope, it is clear that as a

whole, the RPFJ falls within the reaches of the public

For example, the Proposed Final Judgment defines Microsoft

middleware as including Outlook Express, photo and video editing

software, and other products that cannot serve as competitive

threats to Microsoft. RPFJ u VI.K.1. This definition clearly

[[Page 28130]]

overreaches. This case is about Microsoft's response to the

emergence of middleware as a competitive threat a possible

alternative platform for software developers that could run on a

variety of operating systems and thus would make software

independent of Windows. Only middleware that can interest. It

addresses the Court of Appeals' findings of illegality, remedies

them all, and ensures competitive conditions in the market for

Intel-compatible PC operating systems. C.The RPFJ Will Benefit The

IT Industry, Whereas The Litigating States' Proposals Would Impose

Substantial Harm On Other IT Companies. The RPFJ also offers

significant advantages to the IT industry. Most importantly, of

course, it preserves the integrity of Windows. But it also serves

the IT industry by achieving a relatively quick resolution of this

dispute. Litigation over remedies, possibly followed by appeal and

remand or further appeal, could take years. The Supreme Court has

recognized that a government antitrust consent decree is a contract

between the parties to settle their disputes and differences, United

States v. ITT Continental Baking Co., 420 U.S. 223, 235-;38

(1975); United States v. Armour & Co., 402 U.S. 673,

681-;82 (1971), and normally embodies a compromise; in exchange

for the saving of cost and elimination of risk, the parties each

give up something they might have won had they proceeded with the

litigation. Armour, 402 U.S. at 681. The RPFJ has the virtue of

bringing the IT industry certain benefits and protections without

the uncertainty and expense of protracted litigation, Armour, 402

U.S. at 681; Microsoft, 56 F.3d at 1459; it will provide prompt,

certain and effective remedies, CIS at 3.

The RPFJ also directly helps OEMs and other IT firms. Many of

the options that will benefit consumers will also benefit the

companies they buy from. As discussed above, OEMs serve as an

independent basis for software development across different

operating systems poses a competitive threat to Windows. Microsoft,

253 F.3d at 53. Similarly, the RPFJ overreaches when it requires

that Microsoft disclose communications protocols used to

interoperate with Windows 2000 servers and their successors. The

Court of Appeals' definition of the relevant market made it clear

that servers are not a part of that market and therefore, that they

are not a part of this case. Microsoft, 253 F.3d at 52-;53. As

explained above, the only connection between servers and this case

is that Microsoft's competitors in the server market have been

highly influential with the Attorneys General who continue to

litigate this case. The server protocols themselves are irrelevant

and thus compelling disclosure is both overbroad and designed to

benefit competitors rather than consumers.

29 that equip their products with any Microsoft operating system

will benefit from guaranteed flexibility under the RPFJ. The twenty

largest OEMs will also be entitled to uniform licensing terms, with

some flexibility for volume discounts and marketing allowances. OEMs

will have the ability to lease desktop space as well as space in the

boot sequence on their computers by installing or promoting non-

Microsoft products and services; IT companies will thus have the

option to negotiate with the OEM(s) of their choice for that space.

By contrast, the states' proposal to give the OEMs the choice of

which parts of Windows to include on their computers and forcing

Microsoft to accommodate those choices would fragment the Windows

standard. As explained above and in Mr. Zuck's affidavit, such

fragmentation would have disastrous effects. Creating multiple

versions of Windows would slow the release of new versions of

Windows and would make it impossible for software developers to

program with confidence. Either they would write only to the leanest

version available, depriving consumers of the benefits of most of

Windows' functionality, or they would have to write multiple

versions of each program, substantially increasing development costs

and customer confusion. A stagnant, fragmented Windows would hurt

the entire industry.

On another front, the RPFJ benefits all IT providers, including

Microsoft's competitors, by guaranteeing access to technical

specifications. Microsoft would have to promptly disclose technical

information that enables any Windows operating system to communicate

with Microsoft servers and with all Microsoft middleware products.

uu III.D, III.E. To encourage more non-Microsoft middleware, the

settlement forces Microsoft to license any intellectual property

rights that others might need to compete with Microsoft. u III.I.

And as with OEMs, Microsoft could not penalize any software

developer, service provider, or hardware vendor that develops or

sells products that compete with Windows and Microsoft middleware.

uu III.A, III.F.

By contrast, as discussed above, the Litigating States'

proposals would stifle innovation further by weakening or entirely

eliminating Microsoft's intellectual property rights, thereby

reducing its incentive to innovate. E.g. LSPFJ uu 1 (stripping down

Windows), 2(a) (mandatory licenses), 3 (mandatory licensing of

predecessor versions), 4 (disclosure of APIs and technical

information), 12 (giving away browser), 14 (mandatory porting), 15

(intellectual property licenses), 19(f) (intellectual property

claims). These provisions would not only hurt Windows, but also

would instill in any sensible IT executive the fear that success

will lead to confiscation. Even if these proposals did not end

Microsoft's improvements to Windows, another provision would likely

do so. That is the Litigating States' proposal to require Microsoft

to notify any ISV of non-Microsoft middleware of any planned action,

sixty days in advance, if the action will interfere with the

middleware's performance or compatibility with Windows, unless the

action is taken for good cause. LSPFJ u 5. After the notification,

the ISV could complain to Microsoft's court-installed regulators to

try to block the change.

The states' broad prohibitions on exclusive dealing and on

agreements limiting competition also would prohibit Microsoft from

entering into joint ventures with any other members of the IT

industry. Because IT products are so interdependent, both consumers

and companies would suffer if the only option is to design around

Microsoft products, and the option of collaborating with Microsoft

on entirely new projects is excluded.

D. The RPFJ Attempts to Structure a Workable Compromise, Whereas

the Litigating States Propose to Establish a Court-Run Ministry of

Microsoft. Finally, the approach of the RPFJ is not unduly

regulatory. To be sure, the enforcement mechanism is too intrusive

and could be substantially improved. However, the substantive

provisions of the RPFJ focus on improving competition rather than

micromanaging markets or product design. Thus, most of the

injunctions tell Microsoft what not to do, rather than imagining

what a perfect competitor might do and then attempting to enforce

that vision. Not so the proposal by the Litigating States. They have

proposed ongoing regulation of Microsoft's conduct, including

ongoing judicial involvement in Microsoft's management, by a special

master who would serve as an investigator, prosecutor, judge, and

potentially even witness against Microsoft. LSPFJ u 18. The special

master would be free to receive and act on even anonymous

complaints, again a procedure that the Court of Appeals harshly

criticized when Judge Sporkin used it. Microsoft, 56 F.3d at 1464.

These proposals are most likely unlawful, if not unconstitutional.

Id.; Microsoft, 147 F.3d. at 954 (granting mandamus to vacate non-

consensual reference to a special master where [t]he issue here is

interpretation, not compliance; the parties' rights must be

determined, not merely enforced). And in all events, they would

allow Microsoft's rivals to thwart competition at every turn.

The Litigating States also err in proposing an unduly long

duration period. Any remedy in this case must be sensitive to the

rapid pace of technological change in the operating system market.

An injunction that is appropriate today may be completely unsuited

to tomorrow's market. If, as The Economist has written, operating

systems are no longer central, then there is little point in

regulating that market. Microsoft: Extending its Tentacles, The

Economist, Oct. 20-;26, 2001, at 59. The RPFJ recognizes this

reality by limiting its term to five years, with the possibility of

a two-year extension. u V. Not so the Litigating States, who in

their rush to ask for the most punitive remedies available seek a

ten-year term for the judgment. In an effort to cover unforeseeable

eventualities, the States also define key terms such as middleware,

browser, and technical information so broadly that the proposed

judgment is in some ways absurd. For example, it appears that the

middleware definition would include parts of Windows 3.0, which was

developed before anyone thought of Java or Internet Explorer.

Because they are unworkable, many of the Litigating States'

proposals invite additional judicial involvement through complaints

by competitors or others; indeed, the provisions for anonymous

complaints invite not only involvement, but abuse.

In short, the Litigating States' proposals pose an enormous risk

of ongoing judicial regulation. Not only would they require

[[Page 28131]]

substantial modification of Microsoft's internal management

structure, but they would require the District Court to set up its

own regulatory agency, headed by the special master and potentially

including a substantial staff, all paid by Microsoft. Courts are

simply not designed for this sort of ongoing regulatory role,

particularly in a field as far removed from their expertise as IT.

At best, the Litigating States' proposals would create a

contentious, judicially-regulated regime in place of a market. At

worst, they would seriously impair IT innovation, at everyone's

expense.

CONCLUSION

For all these reasons, the RPFJ should be adopted, and the

Litigating States' proposals should be rejected.

Gene C. Schaerr, DC Bar No. 416368

Sidley Austin Brown & Wood LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-;8141

(202) 736-;8711 (fax)

Counsel for the Association for

Competitive Technology

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No.

98-;1232 (

CKK) MICROSOFT CORPORATION,

Defendant

STATE OF NEW YORK ex rel.)

Attorney General ELIOT SPITZER, et al.,)

Plaintiffs,

v. Civil Action No. 98-;1233 (CKK)

MICROSOFT CORPORATION,

Defendant.

DECLARATION OF JONATHAN ZUCK

January 25, 2002

Qualifications and Scope of Testimony

1. My name is Jonathan Zuck. I am over 18 years of age. I reside

at 3701 Upton Street NW, in Washington, DC. I am President and

Executive Director of the Association for Competitive Technology

(ACT). I make this declaration in my capacity as President of ACT,

which declaration is based on my personal knowledge of the facts set

forth herein. To my knowledge, the factual assertions presented in

this affidavit are true and correct.

2. ACT is a nonprofit association representing over 9,000

companies and individuals in the information technology (IT)

industry. ACT members include independent software developers,

hardware developers, systems integrators and on-line companies, many

of whom are small and medium-sized businesses who depend on

Microsoft technology for their success. Protecting the freedom to

achieve, compete and innovate, ACT is dedicated to preserving the

role of technology companies in shaping the future of the IT

industry. Although their businesses vary, ACT members share a

preference for market-driven solutions over regulated ones. Through

education, advocacy and collaboration, ACT gives the IT industry a

powerful voice in shaping its future. Although Microsoft is also an

ACT member, ACT's interest in the remedies phase of this case stems

primarily from the serious adverse impact the remedies proposed by

the Litigating States will have on ACT's other members, and

especially on independent software vendors (ISVs) in the business of

developing applications software for use by business and consumers.

3. I became President of ACT in 1998. Since assuming leadership

of ACT, I have been responsible for providing analysis, commentary

and background information on behalf of the IT industry on a broad

range of technology issues being debated in the public policy arena.

I have appeared on a wide variety of television and radio programs,

and do a large amount of writing for trade publications such as PC

Magazine, PC Week, DBMS, the Visual Basic Programmer's Journal, and

Windows Tech Journal. I have coauthored several books on the subject

of Windows application development, including Visual Basic How-To. I

also regularly speak at trade conferences in the United States and

around the world on matters important to ACT's membership.

4. Prior to becoming President of ACT, I spent more than 15

years as a professional software developer. Most recently, I served

as Director of Technical Services at the Spectrum Technology Group

in Washington, DC, a consulting firm specializing in client/server,

Internet and data warehouse solutions. Prior to that, in 1988, I

founded and served as President of User Friendly, Inc., of

Washington, DC, a company providing consulting and software

development services to local businesses. The company expanded into

commercial software development with Crescent Software in 1992. I

also set up U.S. operations for Matesys, a French software firm that

produced client/server development tools including ObjectView. At

Matesys, I was responsible for product management, marketing and

sales, and helped build the company into an $11 million business

before it was sold to Knowledgeware.

5. The purpose of ACT's Tunney Act comments, and of my

Declaration, is to provide the Court with the IT industry's

perspective on the Revised Proposed Final Judgment (RPFJ) as well as

the industry's perspective on more radical proposals that have been

advanced by various groups, including the Litigating States.

Specifically, this Declaration seeks to explain the importance of

the standard, constantly evolving Windows platform and the heavy

costs that would be imposed by the Litigating States' proposals or

any other proposals that impair Windows' integrity. For the reasons

explained below, ACT believes that the Litigating States' proposed

remedies could well be devastating to the IT industry, with no

corresponding benefit. In contrast, the RPFJ will likely preserve

and even strengthen the IT industry.

Value of Windows

6. In various ways, the Litigating States' proposals will

threaten the three features of the Windows operating system that

make it so valuable to the IT industry: (1) the fact that Microsoft

constantly improves it by adding new features and functionalities;

(2) its uniformity and widespread acceptance; and (3) its low cost

to consumers.

7. Constant Improvement and Addition of New Features and

Functionalities. One reason Windows is so valuable to the IT

industry is that Microsoft has constantly improved it. For example,

each new release of Windows contains software drivers for the major

new printers and other peripheral devices that have been released

since the prior version of Windows. This means that developers of

applications such as money management software, graphics programs,

etc., do not need to create their own drivers for these devices or,

worse, choose from among several competing drivers.

8. Virtually everyone in the IT industry, moreover, has a strong

interest in seeing this trend continue in the future. The addition

to Windows of such new functionalities as voice recognition, for

example, will allow software developers to add such features to

their products at minimal cost. Those costs will increase

dramatically and consumer benefits will be reduced if software

developers are forced to develop their own voice recognition

features or, worse, to port their programs to several competing

voice-recognition programs.

9. Windows' Uniformity and Widespread Acceptance. Uniform

standards are crucial to an efficient, rapidly evolving IT sector.

Communications and Internet standards provide the language necessary

for many different computers to talk or network with one another,

enabling, for example, users of the World Wide Web to locate and

retrieve the information they seek. Operating systems perform a

similar function, allowing hardware devices and software

applications to communicate with a computer. Indeed, it is Windows'

consistency that makes it so valuable.

10. As the District Court recognized in its Findings of Fact,

with Windows the operation of both the computer and the software is

the same from computer to computer. This means that the same

software will run on all Windows-based PCs and, by and large, all

hardware devices can be used as well. Hence, the consumer avoids the

need for time-consuming, often expensive retraining, and thus has a

greater incentive to learn how to use the existing system. Also, the

widespread acceptance that Windows enjoys also makes it easier to

ensure that computer products (both hardware and software) work the

way they are supposed to, and work well with each other. Operating

system consistency usually means that software will operate normally

even if the type of computer changes. For example, WordPerfect will

function as advertised on a Windows-based Dell computer or a

Windows-based Compaq computer.

11. In its consistency from one computer and software program to

another, Windows is markedly different from the UNIX operating

system. That system is in reality a collection of similar operating

systems, including Sun's Solaris, Digital's UNIX, HP's HP-UX, IBM's

AIX and SCO's UnixWare. See http://www.techweb.com/encyclopedia/

defineterm?term=unix. Although different versions may be desirable

with respect to many products, for most computer users such a

proliferation promises nothing but confusion, lost time, fewer

applications, and higher prices.

12. For example, a consumer who shifts from one UNIX-based

computer to another

[[Page 28132]]

UNIX- based computer may find that the two computers use different

UNIX versions with different features, functions, and

idiosyncrasies. Consequently, the consumer may have to devote

considerable time and expense learning how to perform the same tasks

on the second UNIX- based computer that she already knew how to

perform on the first platform. Worse still, the software

applications or hardware equipment she purchased for and used on the

first computer may be incompatible with the version of UNIX

installed on the second computer. And a UNIX user obviously has less

incentive to develop skills tailored to her particular system if it

is likely that she will use a different UNIX operating system in the

future.

13. For these reasons, the cost per potential customer of

developing a piece of software for the Windows operating system is

significantly lower than the cost for the UNIX operating system,

which translates into more software and lower prices for consumers.

14. In addition, more than any other operating system, Windows

has remained compatible with software written for older Windows

versions. As a result, consumers have much greater confidence that

the software they purchase will work when they upgrade to a new

Windows release. Hardware manufacturers and developers similarly

face much less risk that their R&D expenditures will be stranded

if Microsoft releases a new version.

15. Windows' Low Cost to Consumers. The Windows operating system

also allows the developer, or other providers of support services,

to support end-users at minimal cost. Each operating system not only

has signature application interfaces and user commands, it also

presents its own set of bugs and system errors. Thus, to provide

software or hardware support, a developer must train personnel to

identify and understand the idiosyncrasies of each operating system

under which it markets its product. These increased support costs

increase prices and decrease consumer demand for products and

services.

16. Consumers, moreover, obtain all of these benefits

inexpensively. Compared to the cost of a typical PC, and to the cost

of the software typically installed on that PC, the cost of Windows

(at about 5%) is relatively small. A low price, coupled with all the

benefits stemming from Windows' widespread use, drives up demand by

making computer products more affordable and attractive to

consumers.

17. The widespread use of an inexpensive, constantly evolving

operating system is particularly important in an industry as dynamic

as the information technology industry, which constantly generates

both new products and new uses for those products, and for which new

developments such as the Internet can redraw the competitive

landscape overnight. A popular operating system like Windows allows

consumers and developers to act quickly and with confidence that

software and hardware will work on most PCs today and in the future.

And the fact that many consumers choose Windows adds a measure of

stability to a highly dynamic industry. This Court should avoid any

remedies that would threaten or undermine these benefits. Potential

Adverse Effects of the Litigating States' Proposals on Consumers and

the IT Industry

18. The RPFJ will increase consumer choice while maintaining the

integrity of the Windows platform. OEMs and consumers will be free

to add whatever products they choose, even to the startup sequence,

or to disable access to Microsoft middleware, but consumers will

still be able to choose Microsoft products and programmers will

still be able to invoke Windows' full functionality. RFPJ u III.

19. In contrast, the Litigating States' proposals will impose

tremendous costs on the IT industry, its consumers, and the public

at large.

20. Balkanizing Windows. A central problem with the Litigating

States' proposals is that they would allow OEMs to create what would

amount to separate versions or flavors of the Windows platform. As a

result, the proposal would set in motion a process that could well

result in the balkanization of Windows, to the detriment of IT

companies and consumers alike.

21. The Litigating States' proposals would require Microsoft to

offer stripped-down versions of Windows, with the middleware

elements removed, at reduced prices. OEMs could then either leave

those elements out altogether or replace them with competitors'

products. As a result, a software developer can no longer assume

that particular Windows components will be readily available to

consumers. The developer must then purchase the needed feature from

Microsoft and include it with its own program, or it must force the

customer to purchase it from Microsoft. Either way, both the

developer and the consumer would ultimately suffer from the need for

a second, unnecessary transaction.

22. As an example, suppose that a company had an application

that relied upon a Windows innovation to automatically support the

display and navigation of its HTML-based on-line help system. The

proposed remedy lets OEMs sell Windows without that support

middleware, so the developer would have to incur the costs to

create, distribute, and support its own middleware for on-line help

display without delivering any greater value to customers.

23. The Litigating States' proposed remedy, moreover, actually

gives OEMs an incentive to strip down Windows before offering it to

consumers. That is because Microsoft shall offer each version of the

Windows Operating System Product that omits such Microsoft

Middleware Product(s) at a reduced price (compared to the version

that contains them). Litigating States' Proposed Final Judgment u 1.

Under the Litigating States' mistaken notion of Middleware, Windows

itself would have been called Middleware, since it originated as an

application running on top of DOS. There can be no doubt that the

implementation of this concept would effectively balkanize what is

now a uniform, coherent software platform. This balkanization would

of course destroy one of the characteristics of Windows that makes

it so valuable to developers of software and hence consumers its

consistency from one Windows-based PC to the next.

24. Uncertainty in the IT Industry. Yet another major cost of

the States' proposal is the tremendous uncertainty it would create

and, indeed, already has created in the industry and the associated

financial markets. The uncertainty surrounding the long-term

implications of the proposed remedies is already causing software

and hardware developers, as well as their current and prospective

clients, significant harm. I do not believe that the vast majority

of the conduct remedies proposed by the Litigating States will do

anything but create an unwieldy regulatory regime for software and

hardware designers.

25. A major source of uncertainty has to do with the future of

the Windows platform. We do not know whether, assuming that the

Litigating States' proposals or similar proposals are adopted,

Windows will continue to be the standard operating system, or

whether it will be viable at all.

26. For all these reasons, the mere fact that the Litigating

States have proposed such extreme remedies is already creating a

certain amount of paralysis among those in the IT industry who are

working to improve existing products and to create the products of

the future. Conclusion

27. While the RPFJ is superior to the Litigating States'

proposals in many ways, a crucial difference is that the RPFJ would

preserve the integrity of the Windows standard. By doing so, it will

preserve the integrity of the IT and particularly the software

development industry.

28. I declare under penalty of perjury that the foregoing is

true and correct to the best of my knowledge:

Jonathan Zuck, President,

Association for Competitive Technology

Signed this the 25th day of January, 2002

MTC-00027807

From: Shaun Savage

To: Microsoft ATR

Date: 1/28/02 11:04am

Subject: Stop MS, for the comsuner sake!!

HI

This is not a legal argument, it is a personal experiance in

dealing with MS. The settlement is bad. It does not deal the the

problem of MS rape of the consumer and developer.

MS Modis Operandi(sp) is to control the access to computers and

make money! This is at the expense of consumers and developers. When

Word98 first came out it could not write Word95 format. This

prevented the two programs sending file back and forth. This forced

the Word95 user to upgrade(spend money).

MS does NOT follow standards!!! Even when thay help define the

standards they break the same standards they help define. This

forces developers to write new work arounds for the

``intentianl bugs/features''. This make MS products

incompatiable with all other software, because these bugs are

unpublished.

There is a difference between API (Application Programming

Interface) and (protocols/file formats). An API requires a library

that know the (protocol/file format).

[[Page 28133]]

To be interoperable the lowlevel protocols and file formats need to

be known. This includes security protocols. MS does not intovate!!

they take existing ideas and comercialize the one method of doing

that idea. The only reason they can do that is that they are an

monopoly. If low level formats and protocols are published then the

``secret'' is in the quality in programming the

application. This is where the compitition come in. If they can do

something better than someone else in an open playing field, that is

the way to compete. An monoculture of computers is very instable.

the security of MS products is terrible!! When you allow the mix of

data and program to be exchanged between systems then there is a

lack of security. MS allows the transfer of data AND code in its

data documents. VERY BAD! A way to force MS to improve service/

products to the consumer is to allow compitition. To allow

compitition ALL (that means ALL) low level protocols, file formats,

and algorithms needs to be in the public domain. MS will try to

sneak out of doing any change in its MO, and put paper work and

beurcrat stuff, and legal stuff between change. Just look at the

lies and ``tricks'' they pulled during the trial phase.

Any settlement needs to have teeth. Really BIG teeth!!!

I, as an consumer, can't take legal action against MS, I don't

have the money, time,...

I may have a justice case the MS harmed me, but I can never seek

or have justice on my own.

``The goverment is here to protect me from things I can't

protect myself from''

Please protect me from Microsoft!

Shaun Savage

20477 SW Tesoro CT

Aloha OR 97006

[email protected]

MTC-00027808

From: Hans Reiser

To: Microsoft ATR

Date: 1/28/02 11:03am

Subject: Microsoft Settlement

If you are not able to process html format for proper printing,

or you lost the html version I sent, please accept this email

(excepting this sentence) as my comment on the proposed settlement,

otherwise please accept the html version which preceded this.

MS Settlement Reflects Deep Failure To Understand Implications

of ``Patching'' Technology

The positions of the DOJ, the States, and even Lawrence Lessig

are based on a failure to understand that something unique to the

software industry, which programmers call ``patching''

technology, makes software products infinitely separable if an

essential facility called ``source code'' is provided. No

disclosure of APIs, and no structuring of APIs, can accomodate all

potential products in the manner that disclosure of source code plus

use of patching does. Every line of source code is a possible

location for insertion of new code that forms a new product. This

new code can be distributed separately from the original source

code, and post-sale added by the consumer, via what programmers call

a ``patch''. Patching technology fundamentally changes

product separability, making separation dependent on the essential

facility called ``source code''. Non-programmers seem to

not yet understand this. Persons who work in the Linux industry know

this from experience, and I will try to convey this experience as

someone who has built a business from the sale of patches (for the

ReiserFS filesystem) in the only market where I had access to kernel

source code.

Software is unique in that ``Compiler'' technology

allows consumers to effectively reassemble software themselves.

A compiler is a computer program that takes a set of

instructions about how to build a program (called ``source

code''), and builds the software. Almost all software is

actually assembled by compilers not humans, and the work of humans

is almost entirely in creating the source code.

You have probably never used a compiler to assemble software

yourself as a consumer because:

*you are not a Fortune 500 company with a staff of trained

system administrators

*you probably use Windows not Linux, and Windows does not give

you access to the essential facility known as ``source

code'' that your ``compiler'' needs to reassemble

your software

*the new crusade by Linux to make the compilation process user

friendly has only just started Because you have never done it

yourself, your intuition may tell you that it is not feasible, or

that it is not feasible for a large market. Beware this intuition,

it is simply wrong. The Fortune 500 are a significant market for

antitrust purposes, and Linux is rapidly moving towards making

asking compilers to perform reassembly a friendly experience for

average persons.

It is frequently efficient to post-sale integrate software for a

large part of the market, and it is getting more so with time. This

is deeply different from physical products such as cars, in that

most persons do not find it as effective to buy a collection of

parts and self-assemble because they would have to do the work of

assembly. With software, the computer does the work of post-sale

assembly, and the consumer simply tells the computer to do it, goes

to make some tea, comes back, and the job is done.

For instance, the business that I own (Namesys, see

www.namesys.com) made its money entirely from sales of a filesystem

(ReiserFS) that was sold separately from the operating system

(Linux) for the first few years of our business. The revenues from

this were enough to support us. Paying consumers such as MP3.com

would take our source code, add it to the Linux kernel source code,

use a compiler, let their computer do a few minutes of work to

reassemble the kernel, and get a better filesystem as a result of

it. This allowed MP3.com to save $20 million dollars according to

their estimate. Others in my industry also sell filesystems

separately from operating systems (www.veritas.com got its start

that way, and still makes simply enormous amounts of money from

doing so, there are others....).

Notice that I say filesystem. Your intuitive notion of what is

an operating system probably tells you that the filesystem is part

of the operating system. You may be tempted to think that what is

part of the operating system is not viable as a product sold

separately from the operating system. Lessig thought so, and this is

because he lacks experience selling operating system components in

the Linux/Unix programming industry.

Think of Jefferson Parish, and understand that software takes

the fine distinctions of Jefferson Parish to their extreme:

*Software can be integrated in its functioning, and yet separate

in its sale, and this means separate as a product for purposes of

anti-trust law. (Most software products are functionally integrated

with a separately sold operating system.)

*Software can be integrated in its physical distribution, yet

separate in its sale. (Purchase of a CDROM holding the software is

often separated from purchase of a license to use, and it is often

considered efficient by publishers to bundle physical distribution

without bundling licensing.)

*Software can be sold and transmitted over the Internet with no

physical product created at all.

There is only one characteristic that necessarily defines the

separation of a software product, and that is the license. A license

is a contract, and contractual tying is illegal under the Clayton

and Sherman acts.

Yet wait, if software products are so easily separable, why

aren't there far more OS components out there being sold? Control

over an essential facility is the answer.

Secret source code can be an essential facility the equal of

putting a combination lock on every bolt in a car, and then

declaring the combination to be a trade secret.

You wouldn't allow this for a car, yet traditional industry

practice is that source code is kept a trade secret. The crisis our

industry is facing, in which monopoly control is the norm in all

parts of it not in infancy, is directly caused by this industry

practice of secret source code. It is not necessary that the text be

kept secret for copyright protection on books to be maintained, and

it is also not necessary for software that the source be kept secret

to protect ownership of it. Far from it, the underlying historical

motivation of copyright and patent laws is to bring more information

out of trade secret status.

We have a widespread well-entrenched industry practice that

keeps an essential facility (source code) under the control of

monopolists (of which Microsoft is merely the largest), and we have

almost complete monopolization of the software industry in each of

its mature niches. These are cause and effect.

I pray to you to not allow their continuance. Open up the

operating system source code, and go even further. Declare that

software is per se separable where source code is available. Declare

source code to be an essential facility. Return copyright and patent

practices to their historical roots, and require that information

created be made public if it is to be protected.

Please do not hesitate to ask me to comment in greater detail or

respond to your questions in this matter. I am available for in

person testimony if desired.

I have great respect for Reilly and Lawrence Lessig generally,

and for their

[[Page 28134]]

arguments in most other matters, and I hope it is understood that I

merely have an advantage in possessing ``patches'' sales

experience.

As for my needs, please create the legal conditions which will

allow me to port ReiserFS to Windows and sell it separately from the

operating system, by giving me the access to source code that I need

to do the port, and to sell the patch separately from the OS.

Essential Facilites Related Citations

[U.S. vs. Trans-Missouri Freight Ass'n, 166 U.S. 290 (1897)] is

the original precedent.

[MCI Communications v. AT&T Corp. 708 F.2d 1081 (7th Cir.),

cert. denied, 464 U.S. 891 (1983)] describes a case more recent (it

is a persuasive rather than controlling authority). Note that the 4

part test lacks any component referencing the need for a market to

have been active at some point prior to the refusal to deal, and is

the better for that lack.

Profit To The Monopolist From Tying

The Chicago School, to which the current DOJ administration

adheres, holds that there is no incentive to monopolists to engage

in tying because it believes they cannot extract more profit from

forced sales of the tied product than they would from raising the

price of the tying product, unless business efficiencies exist. For

this reason, they feel that there is no need for the Clayton

prohibition against tying, and feel there are civil liberty reasons

to avoid government intervention into markets. Their analysis

assumes the tied product is part of a fully competitive market, and

for this reason it is deeply flawed.

The profit to the monopolist from engaging in tying is the

difference between the market price and the marginal cost. For less

than fully competitive markets, which is to say most markets, this

is a non-zero amount. For software, especially software sold and

distributed over the Internet, the marginal cost is close to zero,

and the motivation for engaging in tying is extremely high. Senators

Sherman and Clayton were much more knowledgable about economics than

the Chicago School is paid to think (various monopolists have given

large funding sums to pro-trust law schools). Some might like to

think that, but for government, free choice expressed in the market

would free us, but in sad reality the government is not the only

means by which people organize to control and plunder the public.

Cartels and monopolies take away our freedoms as well. The only

thing worse than a government controlled economy is a monopoly

controlled economy.

The Settlement As A Whole

I am opposed to the settlement as a whole. President Bush owns

stock in Microsoft, and he appointed to head the antitrust division

at the DOJ someone who is widely known to be opposed to laws against

tying. When someone is opposed to a law that they are supposed to

prosecute, they should not be allowed to settle a case their

predecessor started. The proposed settlement is designed to be

toothless, and to do nothing. Do not allow President Bush to settle

this case, and thereby cripple the ability of the next

administration to enforce the law. The failure of Microsoft and the

DOJ to adhere to the contact disclosure provisions of the Tunney Act

is one more reason to reject the settlement.

Conclusion

If you have the courage to firmly reject this settlement, if you

declare software to be per se separable, and if you move

aggressively to enforce the claim of the States while we wait for a

new administration, you will have earned the admiration of the

American people. Some of them will even know this.

More importantly, you will.

Sincerely,

Hans Reiser

Owner/Operator of Namesys

Author of ReiserFS, a significant component of Linux

5918 Marden Lane

Oakland, CA 94611

phone: +1 510-;339-;1044 (USA)

+7 095 290 6405 (I am currently in Russia)

MTC-00027809

From: Joanne

[email protected]@inetgw

To: Microsoft ATR

Date: 1/28/02 11:08am

Subject: Microsoft Antitrust lawsuit

Mr. Ashcroft,

Attached is a letter from me regarding the antitrust lawsuit

agaist Microsoft. Please consider my feelings on this matter.

Regards

Joanne Turner

210 Manchester Street

Danville, CA 94506

January 27, 2002

Attorney General John Ashcroft

US Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Mr. Ashcroft:

I write today to document my support of the recent settlement

proposed by the DOJ in its antitrust lawsuit against Microsoft. I

support this settlement because its formalization will mean that

Microsoft's attention will no longer be diverted and they can get

back to the business of creating excellent products. The formalized

settlement will also mean that the IT industry will get the boost it

has lacked since the beginning of this case. This boost will

undoubtedly affect our failing economy positively.

I am pleased with the terms of the settlement as it stands, and

I feel that Microsoft has made substantial strides to honor these

terms. The compliance with these terms will ensure that

competitiveness in the IT industry will be highly increased thereby

giving consumers greater choices. Microsoft has already agreed to

give their competitors license to their intellectual property and

have also granted access to internal codes and protocols. These

moves are all pro-competition and should more than quell the

concerns of Microsoft's opponents.

It is my hope that you will see how crucial formalize this

settlement is to the consumer, the IT industry and the economy and

bring this matter to an expeditious close.

Sincerely,

MTC-00027810

From: Onnie Shekerjian

To: Microsoft ATR

Date: 1/28/02 11:09am

Subject: Microsoft Settlement

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530-;0001

January 28, 2002

Dear Ms. Hesse:

The United States v. Microsoft Corporation litigation, which was

brought nearly four years ago, should be ended with the consent

decree by your Court.

Products which formed the basis for the Microsoft case in 1998

have since disappeared, becoming obsolete antiquities to be viewed

with a smile and a ?remember when? usually reserved for hula-hoops

and RC Cola. Other issues at the core of the case have also changed

almost unidentifiably or have been sold or merged with others.

The failed Microsoft Network is one of the best examples. It was

part of the case in the beginning, but has since faded from the

landscape as another of Microsoft's unsuccessful ventures. What's

lost in the haze in the anti-trust argument is that Microsoft has

probably experienced as many failures as successes, but instead of

employing more attorneys to even the playing field by litigation,

they employed more developers and more R&D folks.

It's clear that Microsoft's innovations over the past 25 years

were not anti-competitive, witnessed simply by the robust software

marketplace we have today. In fact, the products and platforms

Microsoft offers continue to make other products possible, like

educational and learning programs.

New products and consistently decreasing prices cannot be

symptoms of a closed or anti-competitive marketplace. The cries of

?monopolist!? against Microsoft, it turns out were an overreach.

More regulation will only damage one of the most promising

industries in America. I hope you will sign off on the settlement

agreement between Microsoft and the Justice Department and nine

state attorneys general.

Sincerely,

Onnie Shekerjian

1301 East Myrna Lane

Tempe, Arizona 85284

MTC-00027811

From: Guinn Unger

To: Microsoft ATR

Date: 1/28/02 11:10am

Subject: Microsoft Settlement

Attorney General John Ashcroft

Dear Mr. Ashcroft:

I believe that the demands to break up Microsoft in the

beginning of the antitrust suit against it would have had an adverse

effect not only on my business but the IT industry as a whole.

Fortunately, the settlement reached between Microsoft and Justice

Department is reasonable. To settle this case is in the best

interests of the consumer and the economy. While I do believe that

sanctions against Microsoft are appropriate, we need to react

rationally and not do anything that would result in damage to the

economy.

Thank you.

Guinn Unger, President

[[Page 28135]]

Unger Technologies, Inc.

Microsoft Certified Partner

Compaq Solutions Alliance Partner

[email protected]

www.ungertech.com

281-;367-;2477

Education is not the filling of a pail, but the lighting of a

fire.--;

William Butler Yeats

MTC-00027812

From: Frank Patitucci

To: ``microsoft.atr(a)usdoj.gov''

Date: 1/28/02 11:10am

Subject: Microsoft Settlement

The purpose of this email is to add my voice to those opposed to

the proposed settlement of the Microsoft Antitrust case. Much

stronger penalties and remedies are necessary if Microsoft's

behavior is to change.

The company has been convicted of committing crimes. It needs a

punishment that matches the crime.

I am the CEO and Chairman of a private, employee owned company

with about $20 million revenue and 200 employees. We provide

employee relocation services to corporations when they transfer

their employees. I am a card carrying capitalist. I have a degree

from Stanford Graduate School of Business and have served as a part

time professor there. Our capitalist system is the most productive

economic engine ever invented. BUT it needs to be protected and

guided by government (all branches) in order to continue to serve us

and to be a model for the rest of the world.

Unfortunately, Microsoft represents capitalism at its worst.

Here's how Microsoft's anti-competitive and anti-capitalistic

behavior affects my company.

First, our company is now almost entirely dependent on Microsoft

technology to provide our services. Frankly, when our computers go

down we cannot do productive work. We are dependent on internal and

web based systems to communicate with our clients, to manage our

vendors and to perform basic business functions. All of our systems

are Microsoft. And according to our IT staff ``we have no

choice''.

Second, Microsoft limits the software we can purchase. At one

point we had a database system called Foxpro. Foxpro was purchased

by Microsoft. We purchased an accounting system called Great Plains.

Great Plains was also purchased by Microsoft. We used to use word

processor, spreadsheet, e-mail and presentation software produced by

other companies that worked on the Microsoft operating system. I am

now told by our IT staff that we can no longer purchase these

products because they are not ``compatible'' with our

other software. What happened to the companies that produced these

excellent products? ``We have no choice''.

Third, we are paying more to Microsoft software than we should.

How else could they accumulate $35 billion in cash in the face of

the current recession? When I ask our staff what would happen if

Microsoft increased tripled their licensing fees, they say,

``we have no choice''. We would have to pay whatever price

they ask. There is no other product or service that we purchase as a

company, other than public utilities, for which we have absolutely

no choice.

The long term success of capitalism depends on free markets,

fair competition and freedom of choice in selecting products and

services. We don't have any of these in this very important sector

of our economy, due to the illegal practices of one company:

Microsoft.

I believe the Courts have two choices. The first is to allow

Microsoft to maintain it's monopoly. If so it should be declared a

public utility and regulated as such. Alternatively, the company

should be broken up into enough parts that will encourage

competition. This kind of remedy has proven to be successful in both

the oil and telephone industries.

The proposed settlement is neither of these, and should be

rejected. One last point, the fact that Microsoft is actively

lobbying for the proposed settlement is cause for very great

concern. We need to remember that Microsoft committed crimes and the

remedies should be painful to the criminal. The current solution

will send the worst message possible to current and future

capitalists.

Sincerely,

Frank M. Patitucci

Chairman, CEO

ReloAction

MTC-00027813

From: Carlos Andrade

To: Microsoft ATR

Date: 1/28/02 11:12am

Subject: Microsoft Settlement

January 16, 2002

Attorney General John Ashcroft

The Justice Department

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Mr. Ashcroft,

I am writing in support of the recent settlement between the

Department of Justice and Microsoft. I am not as acquainted with all

the details of this that I would prefer, but this entire lawsuit

seems to have come about simply because some of Microsoft's

competitors grew weary of trying to compete with Microsoft's Free

Internet Explorer. I personally use IE and have done so for a while.

I appreciate the fact of having free software with the operating

system that I got with my computer. I understand that Netscape does

not appreciate not being able to get my $40 or so dollars which I

would have had to pay to them to get an Internet Explorer, because

Microsoft provided it for free. This, in my opinion, is not a proper

utilization of our legal system.

I use Microsoft products in my business and have found that

their software is simply better and more reliable than anyone

else's. I have used Netscape which I had received from my ISP, but I

found Microsoft's product more user friendly and les problematic

when it came to updates. Microsoft exerted no amount of influence

for me to reach that conclusion. Simple experience has done that.

I believe that this lawsuit was simply an effort to force

Microsoft to ``dumb down'' its efforts and allow other,

software developers a chance at catching up. I also think that when

a customer buys an operating system that has some added features

such as a stable Internet explorer, the only one that benefits is

the consumer. They don't need to go out and purchase additional

software to get on the web which is what most customer are now

getting computer for. This settlement has thankfully nullified the

effort to separate IE form Windows. It is fair and offers pragmatic

answers to complex problems, such as competitors'' worries

about interoperability of Windows and OEMs irritation with Microsoft

for shipping additional software along with Windows. Though the

settlement extends a bit beyond the scope of the original lawsuit,

it does end the litigation and should, in my opinion, be accepted.

Sincerely,

Carlos Andrade

Carlos Andrade

Network Administrator

MTC-00027814

From: carlos kennedy

To: Microsoft ATR

Date: 1/28/02 11:13am

Subject: Fw: Attorney General John Ashcroft Letter

Attorney General John Ashcroft

US Department of Justice, 950 Pennsylvania Avenue, NW

Washington, DC 20530-;0001

January 28, 2002

Dear Mr. Ashcroft:

I am extremely pleased to hear that the Justice Department has

finally decided to end its persecution of Microsoft, and agree to a

settlement. Microsoft was never a monopoly; it simply provided the

best product that people enjoy.

I hope that people will appreciate what Microsoft has sacrificed

in order to bring an end to this settlement. Among the many terms

they have agreed to, Microsoft has promised to allow computer

manufacturers to pick and choose not only what Windows programs they

will feature, but they can also include numerous Microsoft

competitive programs in the computers they ship.

There are, of course many other terms in the settlement that are

also damaging to Microsoft, but I just wanted to make a brief point,

as I'm sure there will be numerous emails coming in on the side of

Microsoft. Thank you for taking the time to hear me out on this

matter.

Sincerely,

Carlos Kennedy

4 Marwood Court

Flat Rock, NC 28731

828-;697-;1203

MTC-00027815

From: James D Lane

To: Microsoft ATR

Date: 1/28/02 11:13am

Subject: Microsoft Settlement

Gentlemen;

This thing has drawn on far to long. I shiver to think of going

back to the good old days of DOS. Force an end to this now and don't

let the states draw this out any longer. Jim Lane, a Windows fan.

MTC-00027816

From:

[email protected]@inetgw

To: Microsoft ATR

[[Page 28136]]

Date: 1/28/02 11:13am

Subject: Re: Has Your Opinion Been Counted?

THE ECONOMICS OF THIS COUNTRY HAVE BEEN DAMAGED BY THE US

GOVERNMENT BRINGING AN ANTITRUST SUIT AGAINST MICROSOFT, WHICH

COMPANY HAS DONE MORE TO ADVANCE COMMUNICATIONS AND THE COMPUTER

INDUSTRY IN THIS COUNTRY THAN ANY ONE ELSE.

FOR LORD'S SAKE, PLEASE ACCEPT THE SETTLEMENT NOW BEFORE THE

COURTS AND LET'S GET ON WITH THE REAL BUSINESS OF THE COUNTRY. TOUGH

COMPETITION BETWEEN COMPANIES IS WHAT HAS MADE THIS COUNTRY GREAT.

THOSE STATES THAT DON'T WANT TO ACCEPT THIS AGREEMENT SHOULD BE

THROWN OUT OF THE UNION. THE PEOPLE OF THEIR STATES HAVE BENEFITED

FROM MICROSOFT AND ITS CREATIVE OPERATING SYSTEMS FAR MORE THAN ANY

ALLEGED UNPROVEN DAMAGE.

THE DEPARTMENT OF JUSTICE ALMOST RUINED IBM WITH THE EXPENSES OF

ITS ANTITRUST ACTI ON AGAINST THEM AND THEY HAVE GONE A LONG WAY IN

DAMAGING THE ABILITY OF MICROSOFT TO COMPETE IN THE MARKET PLACE

WITH THE EXPENSE OF DEFENDING THEMSELVES AGAINST SOME AN UNWARRATED

ANTITRUST ACTION..

ALFRED C. BODY [email protected]

MTC-00027817

From: Scott Ventura

To: Microsoft ATR

Date: 1/28/02 11:14am

Subject: Microsoft Settlement

From:

Scott Ventura

9 West Squire Drive Apt 1

Rochester NY 14623

585-;475-;9865

[email protected]

To:

Renata B. Hesse

Antitrust Division

u.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530-;0001

FAX: 202-;307-;1454 or 202-;616-;9937

Subject: Microsoft Antitrust Remedy Proposal

I am writing to express my disapproval of certain terms of the

remedies set forth in the antitrust case against Microsoft. My

concerns stem from examining the document located at the following

URL: http://www.usdoj.gov/atr/cases/f9400/9495.htm

The proposed remedy is a bad idea. As currently outlined, it

allow Microsoft to gain an even larger market share rather than

force it to compete more fairly.

Documentation/Disclosure/Licensing of Security-Related

Interfaces III J: No provision of this Final Judgment shall:

1.Require Microsoft to document, disclose or license to third

parties: (a) portions of APIs or Documentation or portions or layers

of Communications Protocols the disclosure of which would compromise

the security of a particular installation or group of installations

of anti-piracy, anti-virus, software licensing, digital rights

management, encryption or authentication systems, including without

limitation, keys, authorization tokens or enforcement criteria; or

(b) any API, interface or other information related to any Microsoft

product if lawfully directed not to do so by a governmental agency

of competent jurisdiction.

There is a saying in the computer security industry:

``Security by obscurity is no security at all.'' The

phrasing in the above passage gives Microsoft leeway to obscure from

public scrutiny the protocols and APIs that are of greatest

importance to computer security. Encryption and authentication are

complicated concepts. Encryption systems must be subjected to

extensive attacks by the security community at large before they can

be trusted. Furthermore, the interfaces to the encryption system

must also be examined by security experts before they can be

trusted. According to III J 1, Microsoft will not be required to

document, disclose, or license this information to the vendors of

security-related products whose security would be compromised by

flaws in the API or protocol. Microsoft will be the only company in

possession of the information needed to make security-related

software secure.

Although I am no fan of digital rights management systems, I

must express my concern for copyright holders, as well. Copyright

holders will be subject to the greatest losses if any level of the

digital rights management system is compromised. If the decision of

to whom to document, disclose, and license the details of the

digital rights management system in Windows is left solely to

Microsoft, then Microsoft could enter into exclusive agreements with

some copyright holders and not others. This would result in an

imbalance in the ability of content providers and copyright holders

to protect their properties to the abilities of the best experts

royalty money can buy.

Worse, Microsoft could elect to not document, disclose, or

license these details to any non-Microsoft entity. Then Microsoft

would be poised to become the only copyright holder with access to

the information required to make working digital rights management

systems for their properties.

Conclusion

Microsoft is an extremely slippery company. They have reached

their current position of market dominance through questionable

business practices and not quality product. I sincerely hope that

the final version of the remedies forces Microsoft to either produce

good software or get out of the way so others can. We've been

tolerating insufficiently useful computers for too many years

already.

Respectfully,

Scott D. Ventura

--;

Scott Ventura

[email protected]

http://FeedMyEgo.com/

MTC-00027818

From: Brian Gollum

To: Microsoft ATR

Date: 1/28/02 11:15am

Subject: Microsoft Settlement

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530-;0001

Dear Ms. Hesse: I am writing to give my comments on the

Microsoft antitrust

settlement. I believe this settlement is counter to the

interests of the American public, deleterious to the American

economy, and inadequate given the findings of fact in the trial.

Microsoft's anti-competitive practices are counter to the law and

spirit of our free-enterprise system. These practices inhibit

competition, reduce innovation, and thereby decrease employment and

productivity in our nation. Microsoft's monopolistic practices cause

the public to bear increased costs and deny them the products of the

innovation which would otherwise be stimulated through competition.

The finding of fact which confirmed that Microsoft is a monopoly

requires strict measures which address not only the practices they

have engaged in in the past, but which also prevent them from

engaging in other monopolistic practices in the future.

It is my belief that a very strong set of strictures must be

placed on convicted monopolists to insure that they are unable to

continue their illegal activities. I do not think that the proposed

settlement is strong enough to serve this function.

Sincerely,

s/Brian L. Gollum

Brian L. Gollum

5820 Phillips Avenue

Pittsburgh, PA 15217

412-;422-;8455

p.s. I agree with the problems identified in Dan Kegel's

analysis of the settlement .

MTC-00027819

From: Erin Barnes

To: Microsoft ATR

Date: 1/28/02 11:15am

Subject: Microsoft Settlement

I think it is time to end the suit against Microsoft. The

settlement is sufficient and will allow Microsoft and the rest of

the industry to move on and continue building great products for

consumers. The continuation of this suit is bad for the US econonmy

and bad for consumers.

Thank you,

Erin Barnes

Pacifica, CA

MTC-00027820

From: j jasper

To: Microsoft ATR

Date: 1/28/02 11:16am

Subject: Microsoft Settlement

a bad idea

please reconsider

thanks

MTC-00027821

From:

[email protected]@i

netgw

To: Microsoft ATR

Date: 1/28/02 11:16am

Subject: Microsoft Settlement

I believe the settlement is balanced and fair for the industry

and consumers. Given the

[[Page 28137]]

current climate after the recession and 9/11, I feel that we need to

settle this and not let it drag on, so we can focus on economic

recovery and fighting external enemies.

Thanks, Diana Heileman

CC:[email protected]@inetgw

MTC-00027822

From: Thomas Vaught

To: Microsoft ATR

Date: 1/28/02 11:16am

Subject: Microsoft Settlement

As a software developer for over 11 years, I am very

dissappointed in the Microsoft settlement. It basically validates

the Microsoft monopoly without any acknoledgment of guilt or

meaningful reparations to the industry they have damaged.

I believe that Microsoft has illegally obtained their monopoly

and are using it to further their reach while keeping innovative

technology such as Java from reaching consumers.

Please consider forcing Microsoft to ship a standards compliant

version of Java with their operating system. This will allow

developers and consumers to benefit from the latests technology for

writing and delivering applications.

Also, I believe that Microsoft should be forced to ship Netscape

along with Internet Explorer so that consumers will have a choice of

browers.

Thank you for your time and consideration.

Thomas E. Vaught

9844 S. Bucknell Way

Littleton, CO 80129

MTC-00027823

From: chip@the-

altmans.net@inetgw

To: Microsoft ATR

Date: 1/28/02 11:07am

Subject: Microsoft Settlement

I think the remedy is fair and should end the case completely. I

do not feel that Microsoft has hurt the public in any matter. Ten to

fifteen years ago the computer industry was in a mess. There was no

standard operating system. If you went to purchase a computer at

Radio Shack you would get a computer running Deskmate. If you went

to an Apple distributor you got the Apple operating system. If you

went to IBM you got their OS operating system. And then of course

you had Windows. Kids in school learned Apple but could not go into

businesses and run their computers. The average person had to have

an apple computer so their kids could do homework and an IBM

computer so they could work at home.

Since then and thanks to Microsoft the industry has been

standardized, kids in school can go out in the world and run

computers. Employees can go home and work on a computer with the

same system they use at work. By becoming standardized, how does

this hurt consumers? Microsoft has saved the average consumer

thousands of dollars. By their continued innovation and development

of the operating system they have added tools and recourses that

would have cost the average consumer a lot of money. If Microsoft

charged for each addition to its product, or forced the consumer to

purchase such things as Internet explorer, word, notepad, a

calculator, Paint, the basic TCP/IP protocols, the average person

could not afford these add ons and would be shut out of the

internet.

As for Internet Explorer, that was the best thing that Microsoft

ever did. It made surfing the web enjoyable. Question, did you ever

try to use Netscape Navigator before Internet Explorer came along, I

have and it sucked. You had to pay around $50.00 for it, it took

several hours to down load and would crash so often that trying to

look up one item would take hours. Microsoft came and gave you

Internet Explorer, which at first had its problems, but when they

finally integrated into the operating system, it was fantastic, you

could surf the net and really enjoy the experience. System hangs and

lockups that occurred often before integrating disappeared. And by

integrating the software it saved me money, how DID this hurt me? I

know the argument it hurt competition, my argument is it did not

hurt competition, it caused competition. It caused Netscape to wake

up and make a better product. At a more reasonable price, this let

the consumer save money by being able to buy a! better product at a

lower cost. Microsoft did nothing wrong. Those consumers that wanted

Netscape still continue to use it, if Netscape wanted to keep

customers, and gain customers, they should have developed a product

that knocked the socks out of Internet Explorer, but did they no,

they cried and sued.

They gave up, because they would not take the time and resources

to develop a better product. I, know, the argument how could they

when they did not have the money because Microsoft was giving the

product away, simple, build it and they will come. The consumer

wants better products and if the consumer found an item better those

that can afford will buy it.

Is it wrong, to build your business, and to protect your

business. NO, it is not wrong! Microsoft played hard ball, yes, but

how is that different from any other company that wants to grow,

expand, and make a difference. Netscape, AOL, Sun Microsystems and

others are playing hard ball now, buy suing Microsoft, because of

their jealousy over the dominance Microsoft has. If the companies

really cared about the consumer, they would build better products

that would blow Microsoft way. But do they no, the run and scream

and sue Microsoft, because Microsoft does not play fair. If these

companies would build better products on the same caliber as

Microsoft, consumers will go there; they will buy what they want.

But stripping down Windows will only hurt the consumer, because the

costs associated with buying each piece of software will be more

than the average consumer can afford. But those that can afford the

software will buy the better software. How is this any different !

from the auto industry? Yes, I know that there are several companies

competing equally, If I went to ford to buy car should they be

required to give me a stripped down car. So that I can go to

Chrysler to purchase the motor, to Bose for the stereo, to Goodyear

for the tires, to Monroe Muffler for the Shocks, and Muffler. NO,

they provide the basic systems and then you buy the additional or

custom items that you want. Microsoft does that they provide the

consumer with the basics and let the consumer buy what they want.

The problem is the other companies are not making products that are

better and more desirable.

End the lawsuit now and let Microsoft go back and build and

innovate so that the envelope of information and knowledge becomes

more reliable and available to the average consumer, and so that

these other companies will be forced to push the envelope even

further buy building better software. If these companies would just

worry about building better software that pushes the limits, they

would not have to worry about Microsoft.

MTC-00027824

From: Wilhelmina J Matern

To: Microsoft ATR

Date: 1/28/02 11:16am

Subject: mICROSOFT sETTLEMENT

Dear DOJ,

May I beg of you either to stop this Microsoft settlement

nonsense, or just retire and get out of the way?

This is all making our government look like something we can all

be thoroughly ashamed of. To spend this much time on Microsoft's

``unfairness'', a company so productive and worthwhile to

America's economy - and by a government so monopolistic and

unproductive of any real benefit to the public, and towards which we

are becoming more and more cynical in re the grandstanding for self-

aggrandizement that is about all we see government officials doing

anymore.... we hear or see another thing on this suit and we just

cry out ``oh,no!''. While we are all thinking about an

economic stimulus and instead this goes on and on and on and.....

the ultimate non-sequitur. Please, get it over with and move on to

Marc Rich, or the dishonest Fish and Game people trying to shut down

so much of our economy with lynx hairs, or the mess DOI has made of

Indian Trust Funds, or .. you can name it, we know you can.

Please reassure us again that the federal government sees and

understands itself as the chief impediment to justice in society

today and will not tolerate this core human indecency in Washington

any longer. And believe me, we'll be pulling for you again with loud

hurrahs soon's we see the first inkling of it!!!

We DO wish you all the very best,

Rev. Dick Matern

Ft Defiance ,AZ

MTC-00027825

From: Rich Smith

To: ``microsoft.atr(a)usdoj.gov.''

Date: 1/28/02 11:09am

Subject: Punish Microsoft

Dear Sirs,

PLEASE punish microsoft.

Richard A. Smith

Thousand Oaks, California.

MTC-00027826

From: Chip Witt

To: Microsoft ATR

Date: 1/28/02 11:17am

[[Page 28138]]

Subject: Microsoft Settlement

To whom it may concern:

The proposed settlement against Microsoft has many flaws, but my

problem with it is more philosophical in nature than most that I

have heard. My understanding is that this judgment is supposed to be

a punitive measure to correct monopolistic behavior in what should

have been an open market place. With that in mind, should not the

mere threat of such judgment modify Microsoft's behavior?

I have followed the proceedings against Microsoft fairly closly,

as I am an IT Professional. During the trial through today,

Microsoft continues to forge ahead mightyly developing partnerships

and products that forcably squeeze competitors out of any market

they decide to pursue. It is my humble opinion that the proposed

settlement should take greater care to protect the consumer by

evening up the playing field on which Microsoft competes. I see this

proposed settlement as nothing more than a slight public slap on the

wrist. Although it is a step towards the right direction in limiting

some of Microsoft's anti-competitive practices, it does not prevent

Microsoft from finding new ways to exploit the gains they have made

in the market place as a monopolist.

This is much akin to closing the barn door after the cow has

already gotten out. More must be done.

Thank you for your time and the opportunity to comment. --;

CW

Chip Witt, MBA

Witt'z End Technologies

PO Box 885

Cotati, CA 94931-;0885

(V) 1-;888-;719-;9277

(F) 1-;800-;514-;3098

(E) [email protected]

(W) www.wittzend.com

MTC-00027827

From: Fairborn Area Chamber of Commerce

To: Microsoft ATR

Date: 1/28/02 11:18am

Subject: Microsoft Settlement

Attention:

Ms. Renata B. Hesse,

Trail Attorney,

Department of Justic,

Washington DC

Microsoft has for many years provided products to consumers and

businesses and has also provided opportunities for other such

companies to develop programs for the Windows system as well. The

settlement worked out by the Department of Justice and the

bipartisan group of state attorneys general to bring the anti-trust

case to an end should be agreed to by all parties in order for

people to return to work especially during this critical period we

are now facing in our economy. We support the Department of justice

and the Attorneys General for their untiring efforts to put an end

to this case and agree to a settlement that is in our nation's best

interest. We don't need any more people added to our unemployment

roles.

John G. Dalton, Executive Director

Fairborn Area Chamber of Commerce

12 N. Central Ave.

Fairborn, OH 45324

Ph: (937) 878-;3191 FAX: (937) 878-;3197

E-Mail: [email protected]

Web Page: www.fairborn.com

MTC-00027828

From:

[email protected]@ine

tgw

To: Microsoft ATR

Date: 1/28/02 11:05am

Subject: Microsoft Settlement

Please refer to the attached letter concerning my support of the

proposed Microsoft settlement.

(See attached file: USAG DJ 25-Jan-02.doc)

This message and any attachments are confidential to the

ordinary user of the e-mail address to which it was addressed and

may also be privileged. If you are not the addressee you may not

copy, forward, disclose or use any part of the message or its

attachments and if you have received this message in error, please

notify the sender immediately by return e-mail and delete it from

your system.

Internet communications cannot be guaranteed to be secure or

error-free as information could be intercepted, corrupted, lost,

arrive late or contain viruses. The sender therefore does not accept

liability for any errors or omissions in the context of this message

which arise as a result of Internet transmission.

Any opinions contained in this message are those of the author

and are not given or endorsed by the HSBC Group company or office

through which this message is sent unless otherwise clearly

indicated in this message and the authority of the author to so bind

the HSBC entity referred to is duly verified.

CC:[email protected]@

inetgw

Daniel Jack

81 Bleloch Avenue

Peekskill, NY 10566

January 25, 2002

Attorney General John Ashcroft

US Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Mr. Ashcroft,

I am writing to voice my opinion of the Microsoft antitrust

case.

I think the U.S. Department of Justice should accept the terms

of the settlement, which represents the best possible outcome.

Microsoft has agreed to several points, including the licensing

of Windows operating system products to the 20 largest computer

companies. For the sake of concluding this suit, Microsoft even

agreed to several terms that extend to products not at issue in the

lawsuit.

Furthermore, I am a proud shareholder (since 1995) and a user of

Microsoft products. I believe that I and many other customers

worldwide have benefited from Microsoft's products and pricing and

have never been harmed by any of their actions in the very

competitive global marketplace for information technology,

particularly PC software.

This is a respectable agreement. The economy and the American

consumer should benefit from the terms in this settlement. I hope

you will support it.

Sincerely,

Daniel Jack

MTC-00027829

From: Joanne Backs

To: Microsoft ATR

Date: 1/28/02 11:20am

Subject: Microsoft Settlement

My comment on the Microsoft Settlement is that it should be

accepted by all and the litigation ended!

Enough is enough.

P.S. I use Netscape Navigator on an Apple imac.

Joanne Backs

MTC-00027830

From: Aldo Mancini

To: ``microsoft.atr(a)usdoj.gov''

Date: 1/28/02 11:18am

Subject: Microsoft Settlement

Dear Mr. Ashcroft,

I am attaching a letter to express my opinion regarding the

lawsuit against Microsoft. Please provide this correspondence your

necessary attention.

Sincerely,

Aldo Mancini

President & CEO

Mancini Enterprises, Inc.

1940-;1 North Commerce Parkway

Weston, FL 33326

Phone: (954)217-;9113 x101

Fax: (954) 217-;0113

e-mail: [email protected]

URL: www.mancinienterprises.com

Notice: The information contained in this communication is

intended solely for the use of the individual or entity to whom it

is addressed and for others authorized to receive it. It may contain

confidential or legally privileged information. If you are not the

intended recipient, you are hereby notified that any disclosure,

copying, distribution, or taking any action in reliance on these

contents is strictly prohibited and may be unlawful. If you received

this communication in error, please notify us immediately by

responding to this e-mail and then delete if from your system.

Mancini Enterprises, Inc. is neither liable for the proper and

complete transmission of the information contained in this

communication nor for any delay in its receipt.

>

CC: ``fin(a)mobilizationoffice.com''

January 28, 2002

Attorney General John Ashcroft

US Department of Justice, 950 Pennsylvania Avenue, NW

Washington, DC 20530-;0001

Dear Mr. Ashcroft:

In the hopes to be heard, regarding the Microsoft lawsuit, I am

writing this letter to express my opinion.

As a small business owner, we always strive to provide our

customers the highest level of service and products they are

purchasing from us. In order to differentiate us from our

competitors, from time to time, we include free services and add-ons

to our products to build on our promise to the customer.

I have always disagreed with the lawsuit against Microsoft and I

believe that Microsoft is entitled to dictate the terms under which

[[Page 28139]]

it will sell its software, even to its OEM customers. The uniform

pricing mechanism will give the 20 OEMs all the benefits of a union

with none of the hassles vis-a-vis Microsoft. The very idea that a

few of Microsoft's most ardent competitors wanted government

sanction to pillage Microsoft's success is disturbing.

I am somewhat pleased that this settlement has been accepted. It

has the advantage of ending this sad chapter in our histor3,.

However, the terms of the settlement seem to give the government one

last poke at Microsoft by requiring it to release some of its

venerated source code to its competitors. As a Microsoft partner,

Microsoft has always provided to us an insight to its source code to

allow us to build better software products without releasing its

right to the ownership of such code. It should be to the discretion

of Microsoft to determine which companies, if any, need to be

provided access to this valuable asset. This, however, is a topic

for a future letter.

For now, let's just leave the settlement stand as is and move

on.

Sincerely,

Aldo Mancini

CEO

Mancini Enterprises, Inc.

MTC-00027831

From: T. Gray Curtis

To: Microsoft ATR

Date: 1/28/02 11:23am

Subject: Comments on Microsoft settlement

To: Department of Justice

From: Thomas Gray Curtis, Jr.

1443 Beacon Street, Apt 617

Brookline, MA

Subj: Comments re Microsoft Settlement

Date: January 28, 2002

Bill Gates wants to insure innovation by Microsoft. To further

this objective, Microsoft has impaired the ability of others to

innovate. A marketing genius, Gates wants to convince everyone that

empowering innovation by Microsoft is in everyone's interest.

Microsoft has damaged the software industry by restraining trade as

means of maintaining competitive advantage. I cannot quote you

specific dollar values of the impact of this restraint, but I will

relate to you one anecdotal instance which may be an illustration.

During the late 1980's and early 1990's two colleagues and I

were developing software for IBM and subsequent electrical utility

companies. The software implemented on a PC the functionality of Geo

Facilities Information System (GFIS) software, which required a more

expensive mainframe computer. GFIS was used by electrical utilities

to help them manage their electrical grids. The new software ran on

IBMs OS2 operating system. Over the course of several years IBM,

Florida Power and Light and Duke Power probably invested on the

order of one million dollars in the development.

As a result of the competition between IBM and Microsoft

(Windows v OS2), what I refer to as the Microsoft Wars, viability of

OS2 as a ubiquitous operating system was destroyed. The consequence

of this was that the cadre of developers creating applications

software was reduced. For a while in the early 1990s I developed

software for the AIX unix operating system. The size of that market

and the cost of unix development drove me out of software

development by 1995. I have finally, starting in 2002, reentered the

software development arena. I am reluctantly developing software for

use under Windows 2000. Primarily because that is the largest

market.

I am not privy to the facts with regard to the abrogation of the

contract between IBM and Microsoft for the development of the

graphical user interface for OS2. I have seen only from afar, via

the news media, the machinations of Microsoft in dealings with

companies such as Sun MicroSystems over JAVA and Netscape and AOL

over browsers. Microsoft business practices sicken me and damage the

ability of the software industry to innovate. I had hoped that the

federal government would seek a remedy which would restore some

balance to the industry by separating the operating system unit from

the application development unit. Microsoft is like a black hole in

our solar system. It suppresses competition to such an extent that

the light of some new products will never be seen.

Microsoft's practices will continue unless steps are taken to

protect the small cap companies which would try to innovate. A case

in point is the small Rachis Corporation of Marlboro, MA. This

startup company develops software for the emerging interactive TV

market. They provide system integration test and evaluation and

software for hardware manufacturers, application vendors,

middleware, and network operators. Scientific Atlantic, a set-top

box manufacturer, partners with RACHIS despite efforts by Microsoft

to provide software to Scientific Atlantic. Microsoft appears to be

eyeing the media industry as an arena in which to throw it's weight

around. Microsoft has created Microsoft TV and with it's holding in

ComCast has some influence over the deployment of the cable network

acquired by ComCast from AT&T.

Please keep an eye open for the Microsoft guerrilla vis a vis

Rachis.

Respectfully submitted.

Gray Curtis

MTC-00027832

From: Ellen Ryan (MSLI)

To: Microsoft ATR

Date: 1/28/02 11:24am

Subject: Microsoft Settlement

I came to the U.S.A 4 years ago from the United Kingdom to work

temporarily while my husband attends university out here. Before I

came here I believed that America had a fair & competitive

economic system that rewarded innovation and hard work. I have been

sorely disappointed. Leave companies free to innovate. Stop using

tax dollars to defend cases that only satisfy the political agenda

rather than protect citizens.

Ellen.

MTC-00027833

From: Mary Rocco

To: Microsoft ATR

Date: 1/28/02 11:25am

Subject: Microsoft Settlement--;NO!

BlankRenata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530-;0001

Dear Ms. Hesse:

I've been requested by Microsoft to send you a letter in support

of their settlement, but I will not do that because I OPPOSE THE

SETTLEMENT. Microsoft continues its predatory and unethical business

practices unabated and obviously the Department of Justice has not

gotten its message through to Mr. Gates yet. I think you should

continue to take steps to curb Microsoft's rapacious and insidious

monopolistic practices which are not only unfair restraint of trade

but also extremely detrimental to the end consumer. Microsoft's

programs act more like viruses than computer applications. Please

continue attempting to put a stop to this monopoly.

Sincerely,

Mary A. Rocco

3217 Cheviot Vista Place, #108

Los Angeles, CA 90034-;3546

MTC-00027834

From: Tennison, James

To: ``microsoft.atr(a)usdoj.gov''

Date: 1/28/02 11:24am

Subject: Microsoft Settlement

To whom it may concern,

I would like to comment on the proposed settlement in the

Microsoft Antitrust Case.

The first thing I would like to say is that from day one I have

been appalled that such a thing as the Microsoft Anti-trust Case

even exists. It is immoral.

My family and various relatives have been using Microsoft

products including MS-DOS, Windows 95, 98, NT, 2000 and Internet

Explorer for years. Had I been unhappy with Microsoft products I

could have purchased other brands such as Apple with their Apple OS,

Sun with their Solaris or Red hat with Linux to name a few. I have

never been under the ignorant opinion that there are no other

choices for my computing needs. Microsoft products have worked well

enough and I've been quite happy with all I could do with them.

Microsoft is extremely successful for good reason. Microsoft

products provide a full range of capabilities, have great prices and

wonderful availability. It is my reasoned opinion that Microsoft

products have been a boon to the citizens of the United States and

the world. Microsoft's products have only offered positives to the

lives of countless people.

Before you think that I am a total Microsoft zealot I will

inform you that I have also happily owned and used Sun products (Sun

Solaris workstations), Silicon Graphics and Apple products

(Macintosh I, II, Quadra 410). I also happily employ the Netscape

browser on all three of my PC's.

I strongly hold that Microsoft has the absolute right to freely

pursue it's interests in the capitalist market of the United States.

This includes their right to bundle their various products any way

they see fit. No one, and certainly not our government, has the

right to dictate what products Microsoft can produce and must not

initiate force against this outstanding company. Microsoft

[[Page 28140]]

has always providing products and services in the absence of any

compulsion. Moreover, Microsoft, unlike the US Government, cannot

use force to make people buy it's products. And, since the only

legitimate purpose of government is to deter and punish those who

use force, the attack on Microsoft because it is successful

completely inverts the role of government. The Microsoft Anti-trust

case has once again made our government, justly a protector of

rights, instead a powerful violator of rights. It is extremely

disheartening to see such rampant totalitarianism! In addition, the

antitrust laws being used in an attempt to lynch Microsoft have been

called into effect not by citizen's complaints against Microsoft's

products, but by Microsoft's unsuccessful competitors. These

companies seek to ``win'' in the marketplace by resulting

to force and not by offering superior products with superior

marketing. Moreover, instead of using guns themselves to force

consumers to buy their products, these companies seek to use force

by proxy, with the US Government acting as their agent. This is

truly a despicable attempt to influence the market through the pure

use of force. They are employing the very corrupt anti-trust laws,

applied by a government on a mistaken crusade to eliminate the

infidel (a hugely successful Microsoft), to ``win'' in the

marketplace. This is an unconscionable injustice! This should be the

illegal activity which is attacked by a just government. Shame! The

Anti-trust laws used by their willing governmental accomplices were

unjust at their inception and remain so today. They represent non-

objective law. Laws that should not and must not exits.

Individual rights, which also apply to the American businessmen

of Microsoft, are not granted by our government. Just government

serves only to protect the rights of it's citizens. Microsoft has an

inalienable right to it's products (bundled as they desire) and

profits.

Many smart people in the United States Justice Department have

created a case against Microsoft based on the subjective egalitarian

premise that big is bad. They punish success for being success. They

have erred in that they never sought to fully understand the legal

premises they employ. To find out whether they are just. They relied

instead on a history of precedence generated by a wholly mistaken

initial premise. That premise is that force can and should be used

to do good. That force should be used to elicit an egalitarian

ideal. As if the alleged good of society trumps the rights of

innocent individuals. Actually, our government is employing a

Marxist socialist concept. The group has rights superior to those of

the individual.

Let us place reason firmly in it's seat. Leave Microsoft alone

to create even better and more successful products for the free

American capitalist consumer. Drop this unjust case immediately! No

punishment is due Microsoft. With a great flourish of marketing

skill, Microsoft has brought the computer to the world and changed

history. All of you persecutors should feel the guilt of your

brutish and totally unjust quest to destroy the good because it is

good.

Thank you for letting me defend the rights of American

businessmen.

James G. Tennison Jr.

MTC-00027835

From: Eric Thompson

To: Microsoft ATR

Date: 1/28/02 11:24am

Subject: Microsoft Settlement

Dear Honorable Justices,

Microsoft has twice been found guilty of serious violations of

the Sherman Antitrust Act, by a federal District Court and by the

United States Court of Appeals. While the Court of Appeals reversed

the breakup order issued by the District Court, it upheld the trial

court's Findings of Fact and affirmed that Microsoft is guilty of

unlawfully maintaining its monopoly. As I understand it, the court

must hold public proceedings under the Tunney Act, and these

proceedings must give citizens and consumer groups an equal

opportunity to participate, along with Microsoft's competitors and

customers.

Please allow consumers participation.

Regards,

Eric

Eric Thompson

Strategic Renewables Group

4834 Hart Drive

San Diego, CA 92116

619-;521-;0444 office/mobile

619-;521-;0515 fax

[email protected]

www.StrategicRenewables.com

MTC-00027836

From: Larry Mull

To: Microsoft ATR

Date: 1/28/02 11:27am

Subject: Microsoft Settlement

DEADLINE:In times of a struggling economy, I find it confusing

that we're still arguing against Microsoft. It's time for this

settlement to be accepted and let's move on. Or maybe it's about

states trying to increase their revenues and attorneys building a

retirement. Sheez. At one time no on thought the Japanese could

compete in the domestic automobile market. Who's going to be the

Japanese when it comes to software in 10 to 20 years?

If we continue, we will prove where businesses should not be in

the future.

MTC-00027837

From: Carey Gifford

To: Microsoft ATR

Date: 1/28/02 11:27am

Subject: Microsoft Settlement

I oppose the proposed Microsoft Settlement for the reason that

it is not in the best interest of the public at large, nor in the

interest of the future evolution of electronic technology.

Carey J. Gifford

[email protected]

Alpharetta, Georgia

MTC-00027838

From:

[email protected]@inetgw

To: Microsoft ATR

Date: 1/28/02 11:27am

Subject: Settlement

To Whom it May Concern:

I support Microsoft's point of view. Please register me as a

supporter of microsoft.

Joan Peven Smith

Miami, FL

MTC-00027839

From:

[email protected]@inetgw

To: Microsoft ATR

Date: 1/28/02 11:27am

Subject: (no subject)

January 28, 2002

Attorney General John Ashcroft

US Dept of Justice

950 Pennsylvania Ave, NW

Washington, DC 20530

Dear Mr. Ashcroft,

I am writing to give my support to the agreement reached between

Microsoft and the Dept of Justice. I did not support the original

lawsuit against Microsoft.

I do not think the case was warranted. The lawsuit was more

political than any outrage over unethical business dealings. Bill

Gates has carried the technological revolution on his shoulders. He

has enabled the average person to become part of the technological

ago. Does anyone remember what it was like before Microsoft? Bill

Gates standardized computer software to enable its compatibility

with other software. And people bought the product, because it was

the best and it still is.

Bill Gates has agreed to any number of terms demanded from the

Dept of Justice. Microsoft has agreed to share its source codes and

books pertaining to Windows, that Windows use to communicate with

other programs; Microsoft has agreed to a three person technical

committee to monitor future compliance; Microsoft has agreed to

contractual restrictions and intellectual property right.

This is more than fair.

Give your approval to this agreement. Allow us to get back to

work. Honestly, I do not agree government intervention on technology

and its innovation. it only serves as a hindrance. Microsoft's

dominance on computer and technology is due to superiority of its

products and its marketing skills.

Sincerely,

Marc Hui

MTC-00027840

From: Your Name

To: Microsoft ATR

Date: 1/28/02 11:28am

Subject: Microsoft Settlement

Dear Ms. Hesse,

I am writing in regard to the proposed settlement in the

Microsoft Antitrust case. I feel that there are tremendous problems

with the proposal and support the open letter written by Dan Kegel.

There you will find my signature along with many many other people

who are also concerned by this proposal.

I also support Dan Kegel's essay regarding the problems and

difficulties that the proposed settlement will create. I hope that

the Department of Justice will seriously reconsider the problems

with the plan and work to revise it so that it will be of benefit to

computer users.

If Microsoft is not reined in and given more stringent

guidelines to follow, they will continue to create products which

don't work and there won't be any alternatives available. I am glad

that there are alternative operating systems available currently,

but they deserve

[[Page 28141]]

just as much access to the market as Microsoft has.

Thank you for your time and consideration of this matter.

Sincerely,

John D. Brosan

MTC-00027841

From: James R. McCartney

To: Microsoft ATR

Date: 1/28/02 11:27am

Subject: MS v DOJ

I am against the proposed settlement with Microsoft. It does not

do enough to punish the software company or ensure changes in

behavior in the future. Netscape was replaced as the dominant web

browser by Internet Explorer(IE) because IE was free. Microsoft has

already been found liable for misusing it's operating system

monopoly to make this happen. IE is now used by most Internet users

because it is free and supplied with Windows and Macintosh by

default. No other browser has a chance to gain market share because

of this.

Now that IE has become the leader, it has stopped using

Netscape's ``plug-in'' technology for enabling helper

applications to open alternate Internet content. Active X is the new

proprietary solution and give Microsoft an advantage in writing

helper applications for IE. Even if they are required to release the

API(Application Programmer's Interface) for Active X, it still gives

them the advantage. They have the code first and they have the

``real code.'' I would not be surprised, nor should

anyone, if they release to other vendors an inferior subset of the

API. This will give Windows Media Player, Word, Outlook, and

Messenger a lead on other current market leaders like Real Player,

Adobe Acrobat, Eudora, and AOL Instant Messenger.

Microsoft has also dropped support for Java in it's latest

operating system, XP. This is hardly in the consumers best interest,

as a large quantity of useful programs are written in this platform

independent language. This can only be Microsoft's attempt at

punishing Sun Microsystems and no one can stop them from doing this.

They should work with Sun to make a good version of Java for

Windows. The solution proposed by the Justice Department seems like

a giveaway. It is notable that it comes right after the executive

branch has become Republican. I would like to see a more objective

resolution to the illegal behavior by Microsoft. Thank you...

James McCartney

2668 East Hardy Lane

Fayetteville AR 72703

MTC-00027842

From: Jef Pearlman

To: Microsoft ATR

Date: 1/28/02 11:28am

Subject: Microsoft Settlement (Against)

I'm just emailing to add my vote to those against the current

proposed settlement. Hopefully I have reached you in time. Plenty of

others have emailed their reasons, so I won't spend any time

rehashing the arguments here, except to say that I believe that the

current settlement in no way punishes Microsoft, and in some ways

helps them further their use of their monopoly to spread their

influence in various industries. Thanks.

Jef

MTC-00027843

From: [email protected]@inetgw

To: Microsoft ATR

Date: 1/28/02 11:29am

Subject: Microsoft Settlement.

In this litigation and all such endeavors the United States

Government has become the ENEMY of the Business Community. If they

were concerned about the Economy AND the health of the business

community in the United States they would act like foreign

governments and support and in some cases provide financial support

as well instead of hampering and stifling business and research and

development. Please allow Microsoft and all other businesses compete

without government interference and do not allow yourselves to be

manipulated by competitors constantly complaining, they are only

looking for a government sponsored ``Leg-Up''

Jerry Purcell

106 Cedar Drive

New Britain, PA 18901-;5229

215-;230-;1911

CC:[email protected]@

inetgw

MTC-00027844

From: Nathan Stratton Treadway

To: Microsoft ATR

Date: 1/28/02 11:29am

Subject: Microsoft Settlement

January 27, 2002

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NE

Suite 1200

Washington, DC 20530-;0001

I think the current proposed settlement with Micrsoft is a bad

idea and should be abandonded.

It has many faults, but to pick one: my business is dependent on

using Samba to allow our Unix machines to inter-operate with our

Windows machines on our network. The proposed settlement does

nothing to protect the rights of non-commercial projects like Samba,

and the millions of users of such projects, against Microsoft's

actions.

Thank you.

Nathan Stratton Treadway

Ray Ontko & Co.

822 E Main St.

Richmond, IN 47374

MTC-00027845

From: Bob Petolillo

To: Microsoft ATR

Date: 1/28/02 11:35am

Subject: Microsoft Settlement

It's time for the government to back off of private lawsuits

against businesses and to stop legislating private commerce as much

as it is.

The role of government should be to provide NECCESSARY

regulation of private commerce.

We have gone WAY BEYOND that role in trying to legislate

equality and/or fairness into private industry.

The government bureaucracy is in no way qualified to judge the

effects of legislation on the citizens and their economy and has

already caused a great deal of damage to the private sector with its

extensive meddling.

Lawsuits and legislation targetted against legitimate

enterprises like tobacco companies (as disgusting as cigarettes

are), gun manufacturers, Microsoft, and many others are not the role

of our government.

Continued abuse of legislative and executive power is only going

to continue to erode the faith of the citizens in our government and

cause more divisiveness and discontent that is already out there.

Un-neccessary governmental interference and gross fiscal

irresponsibility have damaged this country greatly. In the latter

half of the twentieth century our culture has gone a long ways

toward becoming a ``third-world'' country due, in large

part, to out-of-control actions by our legislature and the

government bureaucracy. We have a long way to go still, but I

shudder to think about the future my children may have to deal with.

Please re-think your position on the role of government and let's

get back to the basics of running the government, not running the

people and industry in it.

Sincerely;

Bob Petolillo

CC:[email protected]@

inetgw

MTC-00027846

From: Sheldon Robinson

To: Microsoft ATR

Date: 1/28/02 11:22am

Subject: Microsoft Settlement

I don't feel particularly verbose today, but I've written and

read much on the reasons Microsoft must be broken into a minimum of

two companies.

Microsoft owns the OS which is fine. Microsoft also makes

applications for their OS which is not fine. Why? Microsoft does not

fairly publish the specification of the interface to their OS. When

Microsoft builds an application and another company builds a

competing application, Microsoft is guaranteed to build the better

application because they have intimate knowledge of the OS.

Microsoft knows how the optimize their applications in ways their

competitor cannot know.

Any settlement which stops short of breaking Microsoft into an

OS company and an applications company is in my view and the view of

many others a lost settlement.

Sheldon

MTC-00027847

From: Davis, Mark

To: ``microsoft.atr(a)usdoj.gov''

Date: 1/28/02 11:31am

Subject: Microsoft Settlement

Dear Officials of the Department of Justice,

As a private citizen and long time user of products produced by

both Microsoft and its competitors, I support the proposed

settlement that has been worked out by the DOJ and Microsoft. I feel

that additional punitive measures would be unfair to both Microsoft

and, more importantly, to consumers using Microsoft products, and so

I urge adoption of the settlement as it exists. Thank you.

[[Page 28142]]

Mark F. Davis

1110 Manzanita Dr.

Pacifica, CA 94044

(650) 355-;8064

MTC-00027848

From: Harold kline

To: Microsoft ATR

Date: 1/28/02 11:32am

Subject: Microsoft Settlement

Dear Sirs and Madams:

It is time to put to rest the Microsoft Case. This ill-advised

litigation was likely the cause of the present recession our country

is enduring, and its continuation is only going to prolong the

economic troubles.

While the Tunney Act fails to satisfy Microsoft's most vocal

critics--; the competitors and their greedy lawyers--;it

provides a fair solution to the alleged monopolistic practices of

Microsoft, and it benefits the country as a whole to get this behind

us and move on. Dragging on this battle will only pad the pockets of

the lawyers, and a few special interest parties.

Many consumers, including myself, do not agree that Microsoft

did anything wrong. Without the Windows technology and the

innovations that that company continues to develop, the personal

computer industry wouldn't be half as strong as it is today. Any

continuation of the litigation against Microsoft only smears the

entire industry and keeps the economy from recovering.

Please bring this farce to an end.

Harold Kline

Kansas City, MO

MTC-00027849

From:

[email protected]@inetgw

To: Microsoft ATR

Date: 1/28/02 11:32am

Subject: Microsoft Settlement

Dear Attorney General Renata Hesse:

The provisions of the Microsoft agreement are tough, but I

believe the terms-which have met or gone beyond the findings of the

Court of Appeals ruling-are reasonable and fair to all parties

involved. This settlement represents the best opportunity for a

great company like Microsoft (whom has changed the lives of millions

of people for the better) and the industry to move forward.

Microsoft has helped so many people work and live more efficiently

and effectively. It is time to move forward and approve this

settlement which is in the best interest of the people of this

country.

Thank you.

Jennifer M. Freeman

833 Trailing Ridge Road

Franklin Lakes, NJ 07417

201-;891-;6040

MTC-00027850

From: Don Briggs

To: Microsoft ATR

Date: 1/28/02 11:32am

Subject: Microsoft Settlement

Dear US DOJ,

One outcome of the Microsoft settlement should be that, when

submitting information electronically to government agencies, one

should never be required to submit documents in Microsoft

proprietary formats. Government agencies should never require text

documents in Microsoft Word format, for instance. To do so

reinforces Microsoft's monopoly position.

Regards,

Don Briggs

1530 Lockhart Gulch Road

Scotts Valley, CA 95066

MTC-0002785

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United States v. Microsoft Corporation; Public Comments; Notice (MTC-00027805 - MTC-00029647) · 67 FR 28124 | Frix