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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3AX02-100503

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** May 3, 2002
- **Citation:** 67 FR 28124

## Text

[Federal Register Volume 67, Number 86 (Friday, May 3, 2002)]
[Notices]
[Pages 28124-28698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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

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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

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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

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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

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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 wi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AX02-100503. Public record. Not legal advice.