United States v. Microsoft Corporation; Public Comments; Notice (MTC-00029649 - MTC-00030631)
Federal RegisterMay 3, 2002
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[Federal Register Volume 67, Number 86 (Friday, May 3, 2002)]
[Notices]
[Pages 28700-29273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X02-20503]
MTC-00029649
Wayne Stringer
1270 205th St
Fort Seott, KS 66701
January 26, 2002
Attorney Renata Hesse
Department of Justice, Antitrust Arty
601 D Street NW, Suite 1200
Washington. DC 20530
Dear Attorney Hesse.
I strongly encourage your support in accepting the proposed
settlement in the Microsoft antitrust suit "Microsoft. has
simply provided a product that meets a market demand at a price the
consumer is willing to pay. If anything, their competitors have used
similar tactics to grow their own business--in a sense. keeping
the marketplace fair.
The unfairness lies in Microsoft's competitors using the marts
to accomplish what they couldn't do in the marketplace. ??'s Larry
Ellison has very publicly decreed their he will unseat Microsoft as
the number one player in the software industry, and he will do
anything to accomplish that goal I sincerely object to this move to
replace the free market system with court manipulation.
With all due respect. I hope you object as welt.
I encourage yore full acceptance and approval of the settlement.
I truly believe it addresses all involved and allows Microsoft and
the industry to move forward on a positive, note.
Sincerely,
Wayne Stringer
January 27, 2002, 11:40 pm
Antitrust Division
U.S. Dept. of Justice
601 D Street NW, Suite 1200
Washington DC, 20530-001
To Whom It May Concern:
I am writing to exercise my right under the Tunney Act to voice
my strong disapproval of the current proposed settlement of the
Microsoft anti-trust trial. The proposed settlement is both weak and
lacking strong enforcement provisions, and is likely to have zero
(or worse) effect on competition within the computer industry, with
continued and increased harm to consumers in the form of fewer
options in the software market and continued increases in the price
of the Microsoft software consumers are forced to buy.
Microsoft was convicted of abuse of monopoly power by one
Federal judge, and the judgment was largely upheld by another seven
Federal justices. In evaluating any proposed settlement, keep
repeating one Important Phrase over and over: "Microsoft is
guilty."
The seven justices of the appeals court ruled that any actions
taken against Microsoft (a) must restore competition to the affected
market, (b) must deprive Microsoft of the "fruits of its
illegal conduct," and (c) must prevent Microsoft from engaging
in similar tactics in the future. The proposed settlement fails on
every one of these.
(A) Restore Competition
Among the many flaws in the proposed settlement is the complete
disregard for the Open Source software movement, which poses the
single greatest competitive threat to Microsoft's monopoly.
Most organizations writing Open Source software are not-for-
profit groups, many without a formal organization status at all.
Section III(J)(2) contains strong language against non-for-profits,
to say nothing of the even less-formal groups of people working on
projects.
Section III(D) also contains provisions which exclude all but
commercially-oriented concerns.
To restore competition the settlement must make allowances for
Open Source organizations--whether formal not-for-profit
organizations or informal, loosely associated groups of
developers--to gain access to the same information and
privileges afforded commercial concerns.
(B) Deprivation of Ill-Gotten Gains
Nowhere in the proposed settlement is there any provision to
deprive Microsoft of the gains deriving from their illegal conduct.
Go back to the Important Phrase: "Microsoft is guilty."
In most systems of justice, we punish the guilty. But the current
proposal offers nothing in the way of punishment, only changes in
future behavior.
Currently Microsoft has cash holdings in excess of US$40
billion, and increases that by more than US$1 billion each month. A
monetary fine large enough to have an impact on them would be a
minimum of US$5 billion.
Even a fine that large would be a minimal punishment.
Microsoft's cash stockpile is used, frequently and repeatedly, to
bludgeon competitors, buy or force their way into new markets, or
simply purchase customers, with the long-term intent to lock people
and organizations into proprietary software on which they can set
the price. Taking a "mere" US$5 billion from their
stockpile will have zero effect on this practice.
For that reason, Microsoft's cash stockpile must be further
reduced. In addition to the monetary fine, Microsoft should be
forced to pay shareholders a cash dividend in any quarter in which
they post a profit and hold cash reserves in excess of US$10
billion. The dividend should be substantial enough to lower
Microsoft's cash holdings by US$1 billion, or 10%, whichever is
greater.
(C) Prevention of Future Illegal Conduct
The current proposed settlement allows Microsoft to effectively
choose two of the three individuals who would provide oversight of
Microsoft's conduct and resolve disputes. The proposed settlement
also requires the committee to work in secret, and individuals
serving on the committee would be barred from making public or
testifying about anything they learn.
This structure virtually guarantees that Microsoft will be
"overseen" by a do-nothing committee with virtually zero
desire or ability to either correct Microsoft abuses, or even call
attention to them.
Instead of the current proposal, a five-person committee should
be selected. Microsoft may appoint one person, but will have no
influence over any of the other four. For the four, two should be
appointed by the Federal court of jurisdiction, one should be
appointed by the U.S. Department of Justice, and one should be
appointed by the U.S. Senate. At least two of the appointees should
have technical experience and be competent to evaluate technical
proposals and arguments by themselves, without the filters which
assistants would bring.
These are hardly the only thoughtful and reasonable suggestions
you will no doubt receive regarding the proposed settlement of this
anti-trust case. And these are hardly the only suggestions which
should be adopted if the settlement is to prove effective. But all
of them are essential to that aim, and adopt them you must,
Thank you for your time and the opportunity to comment.
Respectfully,
Michael A. Alderete
569 Haight Street
San Francisco, CA 94117
(415) 861-5758
michael @ alderete.com
MTC-00029652
Ms. Renata Hesse
Antitrust Division
Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
I am writing in supp ort of the consent decree for the Microsoft
settlement. Microsoft has show itself to be an innovator and a
company whose products make lives better for he average American.
This lawsuit is bad for consumers and ba?? for the economy.
By supper ting the consent degree, you will put an end to a
lawsuit theft has become more political than substantive. The Bush
administration priorities have been amazingly out of step and out of
touch with the American public Hopefully they will at least get this
one right and settle the suit. The I maybe we can all move on to a
healthy economy and a healthy debate concerning the future of our
nation.
Thank you.
Sincerely
Tim Allison Executive Board Member
CA Democratic Party
Title for identification purposes only. This letter reflects the
solely the opin on of the signer.
MTC-00029653
January 25, 2002
Renata hesse
Trial Attorney, Antitrust Division
Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
The Microsoft Lawsuit Is Bad for Business and Bad for Consumers.
For many, the idea of attacking one of the most successful
companies in American history, and its CEO Bill Gates, sounds like
fun. But the Department of Justice's pursuit of Microsoft is no
laughing matter, having cost American taxpayers well over $35
million in litigation so far and the meter is still running.
The reality is that this lawsuit does nothing to benefit
consummers. It does however benefit Microsoft's competitors, who
after spending millions of dollars lobbying the Department of
Justice to file this suit want a return on their investment. Also,
it benefits the lawyers who have made a fortune on both
[[Page 28701]]
sides of this issue... and the Attorneys General and bureaucrats who
are making political hay, back home by demonizing Microsoft. The
real beneficiaries are the powerful anti-Microsoft forces not
consumers.
The Cost To Businesses and Consumers in Just Too High.
Rather than protecting consumers, drastic remedies such as
breaking up Microsoft would be a disaster for consumers and
businesses. The integration and standardization Windows brought us
has been a boon for the public as well as for our economic
productivity. What Bill Gates understood, much to his
competitors" chagrin, was that consumers- people who use
computers, not live computers--want an affordable and reliable
system that works with and understands other systems.
Government intervention into the world of high tech programming
and design sets a dangerous and potially disastrous precedent.
Dictating to Microsoft what technology it can develop will decrease
the effectiveness of existing products or meet the expanding needs
of users could cripple the technological innovation that has been
the hallmark of hour high tech, internet economy.
One could argue in fact that the genesis of the huge decline in
the Nasdaq, which so far has resulted in more than $2 trillion of
lost wealth, is primarily the result of the government's sustained
attack on Microsoft's right to innovate. After all, today Microsoft,
tomorrow Intel.
Over the past 10 years, Microsoft has lowered its prices,
created a better product, and invested enormous sums of money in
research and development. This doesn't sound like monopolistic
behavior by any standard.
The government's pursuit of Microsoft has cost the American
taxpayer over $35 million so far with devastating results for state
and private pension funds, and small investors, all over the
country, [illigible] state pension funds have lost $144.2 billion.
Here in California, since the March, 2000, break down of mediation
on the case, Public Employee Retirement System funds have dropped
more than $59 billion while the State Teacher Retirement fund lost
$15 billion.
We hope the consent decree is adopted and the federal lawsuit is
dropped. If not, it may be time to [illegible] our elected
representatives to do the right thing and allow Microsoft to
continue its history of investment, innovation and improvement The
American economy depends on it.
Sincerely
Joe [illegible]
Executive Director, SBCTA
214 East Victoria Street,
Santa Barbara, California 93101
Tel: 805.965.9415
Fax: 565-7915
email: info @ sbcta.org www.sbcta.org
MTC-00029654
January 9, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D S??et NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
As a member of the North Carolina General Assembly, I have
always sought to make government a cooperative partner of business
and industry. After all, business and industry creates jobs that
enhance the lives of countless North Carolinians.
For several years, I have witnessed the federal government's
pursuit of a lawsuit against Microsoft, one of the most successful
companies in the history of American business. This suit has cost
the taxpayers upwards of $30 million over the past years.
I request that Judge Kollar Kotelly approve the settlement that
the Department of Justice and Microsoft have both agreed upon. In
addition, I am pleased to say that my state, North Carolina, has
also signed the agreement and decided to settle.
In spite of the fact that nine state attorneys general plan to
prolong their cases against Microsoft, I believe the federal case
should be settled.
Sincerely,
Jeffrey L. Barnhart
State Representative
MTC-00029655
January 23, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street, NW suite 1200
Washington, DC 20530
Dear Ms. Hesse,
As a business executive who travels to Chicago on business from
my home in Greensboro nearly every week, I know how important
Microsoft's business technology is to American business, In fact, I
find Microsoft's products to be bery helpful when I travel abroad on
business as well.
I realize that not everyone travels to the extent that I do, but
I would imagine that most people who work In business do rely on
Microsoft products to a great extent. And shouldn't they?
Microsoft's products are universally recognized as the industry
leader and they've improved communication for American businesses,
schools and government.
Virtually everyone uses Microsoft's products, Executives,
attorneys, entrepreneurs, educators and government officials know
that Microsoft is the universal leader in technological innovation
They all have great confidence In Microsoft's products to get the
job done.
I read recently that Microsoft and the federal government agreed
to settle the antitrust lawsuit they've been engaged in for a number
of years. That's good news for businesses, families, the stock
market and the American economy, our economy needs a shot in the arm
at this point in time, and I believe that this settlement will
provide it, I request that Judge Kollar-Kotelly approve this
settlement. Thank you for your consideration of my comments.
Sincerely,
Kumar Lakhavani
Senior Manager
HR Dynamics Global Practice
MTC-00029656
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
As a member of the Greenville City Council, I am concerned about
the off??er that the Microsoft anti??rust lawsuit is having on both
the business and educational institutions in our city. I am a newly
elected member of the council, a member who ran in order to create a
more efficient government for our ??tizens. I am also concerned that
the government operates efficiently.
The American people have a twofold desire in regard to the
Microsoft suit, as I see it. First, they want the federal government
to work to create a more positive business climate for all
Americans. Government needs to use its power to encourage private
investment, innovation and job growth, Second, it is the moral
responsibility of the federal government to use taxpayers' funds
wisely.
The government's work in fostering a strong coonomy is
par??licularly timely right now. After all, the unemployment rate is
up, the stock market is down, and consumer spending is off. We've
got to get back on track. I can think of no more positive action for
the federal government to take than for its courts to approve the
settlement in the Microsoft case.
Also, Americans today are paying taxes to the federal government
at the highest rate per capita in over fifty years. It is the
government's responsibility to see to it that these funds are used
responsibly for the benefit and general welfare of the American
people. The Microsoft lawsuit has cost the American people $30
million to prosecute. It's time to and this litigious spending.
Thank goodness both parties want the suit to end. They have come
to art amicable settlement. I urge Judge Kollar-Kotelly to approve
the settlement.
Sincerely,
Ray Craft
Council Member
MTC-00029657
January 18, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Departnent of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
As a business leader who has served as Chairman of the American
Furniture against Microsoft is close to ending. Virtually all of the
executives in business and industry that I am in contact with want
to see the case settled.
Our society has become more litigious than ever. Litigation
costs business money... and can cost employees their jobs That's why
l believe that we ought to move beyond this ease. There are so many
societal problems for us to contend with no the least of which is
[[Page 28702]]
our ourrent economic recession. We need to focus on growth, and we
aced the government to be a true partner in that effort.
The company that I own uses Microsoft products every day. t find
them to be useful in making my business more efficient.
En??epreneurial life is much different from the legal profession. If
I am not constantly looking for now niches in which to make a
profit, my business will lag. Microsoft products have made my
business more productive, and I think it's time to settle this
lawsuit so that Microsoft can focus all its resources on creating
new products to benefit businesses like mine.
Microsoft and the federal government are in agreement On the
settlement, I strongly urge Judge Kollar-Kotelly to quickly approve
the settlement Let's set me economy moving again.
Sincerely,
J. Ray Shufelt
CEO
MTC-00029658
Beth Saine
Lincoln County Commissioner
1760 Whispering Pines Drive
Lincolnton, NC 28092
704.735,3297
January 18, 2002
Renata Hesse
Trial Attorney
Antitrust Divisions Department of Justice
60l D Strut NW, Suite 1200
Washington, DC 20530
Fax: 202-616-9937
As a member of the Lincoln County Commission, I am pleased that
the United States Justice Department is settling with Microsoft.
Technology is so important to the future of counties like ours all
across America, and this settlement will enhance all facets of the
tech industry in the coming years.
Our neighbors in Mecklenburg County have had many advantages
over Lincoln County, and other counties in the past. Charlotte is
the nation's mega banking centaur. That attracts business, and with
it comes a substantial local fax base. I'm not saying that money is
everything, but huge counties have had a traditional advantage over
smaller ones in the past. As a result, they have had an easier time
funding essential county services, such as school improvements.
Technology quite simply levels the playing field for average-sized
counties across America.
When someone togs on to the internet, it doesn't matter if
they're sitting in Raleigh or Hanging Dog, their access to
information is the same, and their ability to profit from the
proliferation of information is the same, The tech industry needs a
shot in the arm so that it can continue aiding America's counties in
o significant way. Fore this reason, I'd like to request that Judge
Keller Kotelly approves the settlement that Microsoft and the
federal government have reached. It will benefit Lincoln County, and
counties like ours across America,
Regards,
Beth Saine
MTC-00029659
North Carolina Federation of College Republicans
BOX 16160
SULLIVAN HALL
NCSU
Raleigh, NC 27607
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601D Street, N-W Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
As one of the younger members of the North Carolina Republican
Party's Central Committee, I have a strong interest in how
government interacts with technology so the economy is strengthened
in the future. As Chairman of the North Carolina Federation of
College Republicans, I want to formally ask that Judge Kollar
Kotelly approve the landmark settlement between the federal
government and Microsoft. Here's why:
I do not believe that Microsoft has done any harm to even one
single consumer. And without consumer harm, what reason exists to
bring an antitrust case? None. Face this fact: the future is in high
tech jobs. Also, every industry is going high tech. Imagine the
damage done by the federal government suing the technology
industry's leading company. It discourages young people from being
innovative. It discourages them from becoming entrepreneurs. Our
Republic will only survive is maintain a strong free market system.
And our market system can only thrive if companies continue to be
innovative. I hope the settlement is finalized soon, so that
American business can operate at its full capacity again soon.
Thank you for your consideration of my comments.
Sincerely,
Matthew Adams
State Chairman
MTC-00029660
Wake Forest Town Commission
January 11,2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
As a member of the Wake Forest Board of Commissioners, I am all
too aware of the high cost of government despite the fad that our
citizens and businesses endure terrible economic conditions in our
state. Out town needs revenue from increased business activity, not
higher property taxes. It seems to me that all our local industries
will be enhanced when the settlement of the Microsoft lawsuit is
completed.
As you can tell, I am adamantly opposed to higher taxes in
whatever form and work hard to ensure that tax money is spent
wisely. But, the fact is, in our growing community, we have services
that need to be paid for by government. The best way for our town to
generate additional revenue is to increase business activity in Wake
Forest. That is why I was happy to see that the federal government's
case against Microsoft had come to a settlement agreement in the
court of Judge Kollar-Kotelly, I know that this case has cost the
taxpayers of this nation $30 million, not to mention lesser sums in
the t 8 states that also brought the original lawsuits. More
significantly, it has hurt business, and local revenues, in our town
and towns across America.
I am pleased that North Carolina is one state that decided to
agree with the settlement and now no more state tax money will be
expended. I hope to see the same thing happen in the federal case as
well. That is why t am strongly urging the judge to agree to the
settlement in this case.
Sincerely,
Chris Malone
Town Commissioner
401 Owen Avenue--Woke Forest, NC 27587
MTC-00029661
January 25, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200 Washington, DC 20530 Fax:
202-616-9937
Dear Ms. Hesse:
Microsoft's products are the greatest in the technology
industry, and that is the major reason that they are regarded as a
leader m the American economy. Given that fact, it is no wonder that
when the federal court announced that Microsoft would be broken up,
the stock market came to a screeching halt, and tumbled down from
record highs.
I am very encouraged that Microsoft and the federal government
have agreed to a settlement in the antitrust case. I believe that
this is good for the economy, the government and other societal
institutions, which increasing rely on industry to invent new
products to make their operations more effective.
The settlement provides for more oversight into Microsoft's
operations, and a more competitive playing field for all companies
in the industry. That's welcome news for everyone who demands
consumer choice. It will also send the right signal to investors
that the government is prepared to work in a cooperative effort to
spur economic growth and job creation.
I request that Judge Kollar Kotelly will approve the settlement,
so that the Justice Department can conserve resources for more
pressing legal matters. Additionally, closure in this matter would
send a message that government is prepared to work with the American
business in taking constructive steps toward a brighter future for
all Americans.
Thank you,
Trustee
Rowan-Cabarrus Community College
MTC-00029662
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Fax: 202-616-9937
Dear Ms. Hesse:
[[Page 28703]]
As a young business executive, I am relieved that the federal
government and Microsoft, which have been engaged in a protracted
antitrust lawsuit, have arrived at a settlement arrangement that is
amicable to both sides. Settling this case as soon as possible is
important to the technology industry, as well as many other
important segments of the economy.
In the business world, companies look at industry leaders for
innovation, and they often try to emulate the corporate
giants" successful business strategies. This partially
explains why the tach sector of the economy has been in a tailspin
for an extended period of time. When the antitrust suit is finally
ended once and for all, a dark cloud will be lifted from the entire
industry. The American economy, and to some extent, the world
economy has never been more interconnected. Each change within one
economical sector creates a ripple throughout the rest of the
economy. A major shift in one sector results in a sea change across
the board of leading economic indicators.
I work in the mortgage banking industry, a business that is
highly sensitive to the state of the national economy. While ending
the Microsoft litigation will not alone create record revenues for
our industry, I feel certain that it would boost consumer
confidence, and encourage investments in many types of business
enterprises.
Finally, I am excited about the future of technological
innovation in the workplace. Microsoft has led the way in this
regard, and finalizing the settlement will help the company refocus
on developing new and exciting products. That means a more
productive workplace in the future.
I request that Judge Kollar Kotelly approves the settlement.
Sincerely,
Stewart
MTC-00029663
January 24, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Fax: 202-616-9937
Dear Ms. Hesse:
As a long-term care specialist, I am concerned that the tumble
that the sock market has suffered is draining the finances of our
nation's elderly. We've got to get the nation's economy back on
track. The government needs to focus on ways to spur economic growth
like never before. In less than ten short years, the baby boom
generation will begin to reach retirement age. A record number of
seniors will inundate our nation's hospitals, nursing homes and
assisted living facilities. These people will need savings not for
luxury items, but to cover living expenses associated with aging.
Our nation's greatest generation, for the most part, worked at
one company for their entire working career. Their pensions are
largely vested in stocks. When the stock market is unstable, their
financial situation, and living conditions, become unstable as well.
The baby boom generation are less likely to have worked in one
company, and are less likely to have saved for a retirement. They
are, however, more likely to have invested a substantial portion, or
all, of their savings in the stock market. IT IS IMPERATIVE THAT WE
STRENGTHEN THE ECONOMY IN ORDER TO BOLSTER THESE SAVINGS.
I request that Judge Kollar Kotelly approves the
settlementbetween Microsoft and the federal government. This lawsuit
has been proven to have caused much of the turmoil within the
economy in general, and the stock market in particular. Our nation's
retirees need security, and deserve governmental cooperation.
Sincerely,
Douglas McCabe Russell
MTC-00029664
GEORGE W. LITTLE & ASSOCIATES, INC.
INSURANCE CONSULTANTS--BROKERS
January 22, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Fax: 202-616-9937
Dear Ms, Hesse:
I have been involved in business, industry and economic
development for over thirty years. Over that period of time, I have
come to understand that a quality education system, a solid public
infrastructure and a strong flee market system are the keys to
economic development in North Carolina and across America.
Virtually every societal institution which is vital to economic
development has benefited from the proliferation of technological
advances in the past decade. Leading the way in innovative
technology is Microsoft. Their products have benefited businesses by
saving countless hours of time and making communications between
businesses seamless. Microsoft's benefits to the education system
are tremendous, Research, class instruction and other benefits have
been realized through application of these useful tools.
Governmental institutions also rely on Microsoft to maximize their
efficiency and serve, the public in a responsive manner.
For these reasons, I am gratified that federal government and
the Microsoft have agreed to a settlement in their antitrust case,
Microsoft will be able to focus its energies once again on research
and development, while the government is granted unprecedented
oversight into Microsoft's operations. Under this settlement,
economic development wins, and so do the American people.
I hope time Judge Kollar Kotelly will approve the settlement.
Sincerely,
MTC-00029665
January 23, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Fax: 202-616-9937
Dear Ms. Hesse:
I write to express my desire that the government will act in a
cooperative manner with Microsoft and similar business interests in
developing a mutually beneficial relationship. I am convinced that
now is the time to end the federal government's litigation against
Microsoft. Microsoft and the federal government have agreed to
settle the suit. The public is yearning for an economic recovery.
Congress is debating an economic stimulus package. With these facts
in mind, I am quite confident that we should move beyond the
Microsoft case and work to get our stagnant economy moving again.
As an attorney, I realize that antitrust law is an important
component of maintaining a competitive marketplace. However, company
innovation and product improvements are as well, and since both
parties have agreed to settle the lawsuit, I believe that it would
be advantageous for everyone if Microsoft can get back to doing what
it does best: researching and developing useful technological tools
for the American workplace and the American home.
The settlement guarantees that other companies will have market
access. Every new Microsoft operating system will have to include a
mechanism that enables end users to remove or re-enable Microsoft s
middleware products. While end users can already remove Microsoft
middleware from Windows XP, this settlement would make it even
easier for users to change middleware products.
I hope that Judge Kollar Kotelly approves the settlement.
Regards,
Phillip J. Strach
Attorney
MTC-00029666
Professor Eric Brodin
P.O. Box 209
Bules Creek, NC 27506
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
During my career as a columnist and professor. I have written
over 3,000 articles for various publications such as the Dana Daily
Record, the Coastal Piedmont leader and other Journals, newspapers
and magazines in twenty countries. I feel compelled to write to you
on a hot contemporary issue: the pending settlement of the federal
government's antitrust case against Microsoft.
I live in a university community. In the past ten years. I have
seen a technological explosion on campus that has revolutionized
learning processes and intellectual research. I have found the
technological advancements of the newspaper to be beneficial in my
work as a columnist. The technological advancements to which I refer
are in no small measure due to the entrepreneurial success of Bill
Gates and Microsoft. After all, Microsoft has developed products
that have aided the process of word processing immeassurably,
[[Page 28704]]
as well as improved columnists" ability to transmit data.
I served as the Endowed Chair of the Landry-Fetterman School of
Business at Campbell University from 1980 until 1983. During my
tenure, I did my utmost to promote the notion that our societal
liberty is largely dependent upon the foundation of the free
enterpriss system. I fully realize that antitrust laws are needed in
order to foster a competitive marketplace, however if a
corporation's business practices do not result in harm to the
conssumer, the government should not interfere. I have seen no
evidence that Microsoft's business practices have harmed consumers
in any way. On the contrary, I believe that Microsoft has benefited
the American consumers greatly.
I urge Judge Kollar-Kotelly to approve the proposed settlement
of the lawsuit. It's time to allow the free market system to
determine the corporate winners and losers in our great land.
Sincerely,
Professor Eric Brodin
MTC-00029667
Steve Tyndall
PO Box 33358 Raleigh, NC 27636
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Fax: 202-616-9937
Dear Ms. Hesse:
The business of America is business, according to President
Woodrow Wilson. That statement has held true for the entire duration
of our nation's young life Whenever business is good, we say that
"times are good" in America. When business is off, we
say that we're going through a "tough time". ! regret to
say that I believe that tough times are currently upon us and our
economy needs for business to get back on track. In some areas, the
government can play an active role in restoring consumer confidence,
and strengthening investor resolve.
The stock market is in limbo. Investors are in a period of
uncertainty that began when the federal government announced that
Microsoft would be dissolved into a series of small companies. The
tech sector of the economy, which had been largely separated from
government, and looked to Microsoft for leadership, became a very
unstable place for investors and employees to be that day. We need
to recapture the magic of the 1990s economy by putting the Microsoft
lawsuit behind us once and for all.
The federal government and Microsoft are in agreement on the
terms of the settlement. All that remains is for Judge Kollar
Kotelly to approve the settlement. I hope and pray the settlement
will be approved. A renewed spirit of entrepreneurial innovation
will be started on that momentous occasion.
I am honored to live in the Unites States of America, a country
in which we have a fair and impartial judicial system. The trial has
run its course. The verdict is in. Both parties want to settle, in
order to save the American people and the American economy
irreparable harm. It's time to move forward.
I request that Judge Kollar Kotelly will approve the settlement.
Senior Tactical Management Specialist Planner John Deere Corporation
MTC-00029668
Scott Lampe
Former Treasurer, N.C. Republican Party
3707 Waterton Leas Court
Charlotte, NC 28269
January 21, 2002
Dent Ms. Hesse:
I believe that the United States of America has the highest
standard of living of any country in the world. I am certain that
our prosperity is a direct result of the free enterprise system that
enables our economy to flourish. I enjoy following current events,
end participating in the political process when I believe that my
participation is needed.
The federal government's lawsuit against Microsoft is a prime
example of an issue that has stirred my passions and evoked my
interest in the public good, From the outset of the lawsuit, I have
worried about the suit's impact on the American economy as a whole.
I noticed that the entire stock market began its slide at the point
which the federal government annoyed Microsoft's breakup.
Microsoft's, innovation has been beneficial for industrial and
educational institution across America. I strongly believe that the
government ought to be as supportive as possible of all companies
that are vital to American enterprise and American jobs. It's
important to families that their tax dollars be used to strengthen,
not weaken, the economy. That's why I believe that the proposed
settlement between Microsoft and the federal government is a
positive development for America. The settlement provides for like
access and monitoring of Microsoft. In essence, everybody wins...
business, industry, the government, and most importantly, the
American people.
I hope that Judge Kollar Kotelly will approve the settlement.
Thank you,
Scott Lampe
MTC-00029669
January 18, 2002.
Ms. 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 encouraging you to accept the Microsoft settlement. It is
fair! For three years, I've been reading about the litigation,
lobbyists, lawyer's fees and millions of dollars in taxpayers monies
spent.
It's time to have less regulation in technology and to have more
competition in the market. As a consumer, I want affordable, high
quality products that Microsoft creates. This settlement will allow
the company to again focus on leading in technology rather than
fighting for survival in the face of litigation.
Thank you for considering my input as you deliberate this
decision.
Liberty Carty
620 S Highland Dr
Andover, KS 67002
Journalism major, Butler County Community College Member, Kansas
Republican State Committee President, Buffer County Republican
Assembly
MTC-00029670
Gerald R. Slifka
2028 Winston Place
Waterloo IA 50701
January 27, 2002
Renata Hesse Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Attorney Hesse:
I am writing to urge the court to accept the settlement proposal
of the Microsoft anti-trust case. As a consumer I have witnessed the
value of our constantly advancing technology on a daily basis. Like
most Americans I am at the same time thrilled and overwhelmed by the
new products that are available. These have gone along way toward
helping work and live more efficiently. I work in the printing
industry and can tell you first hand that technology has had a
significant impact on how this industry operates. The quality of our
work improved to a great extent while the product turnaround time
has been significantly reduced
We are living in a time of financial uncertainty in this
country. We must do whatever we can to regain stability in the stock
markets and the job market. Ending the government's case against one
of our leading companies will help lead our county to continued
prosperity.
Please accept the settlement before you.
Sincerely,
Gerald R. Slifka
MTC-00029671
January 16, 2002 Ms.
Renata Hesse, Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
I appreciate that my ideas as a livestock business owner can be
shared regarding the Microsoft antitrust ease.
It is important that the Federal Courts recognize the benefits
of competition in business and technology. The Anti-trust laws were
written over 100 years ago to protect consumers. In this day and
age, it seems, some of Microsoft's competitors want to use them as a
safe-guard from competition. A better use of the government's legal
power would be an examination of the vertical integration of
agricultural conglomerates.
I personally agree with settlement and hope that you will accept
it to bring closure to this litigation that is costing us so much in
time and tax dollars.
Sincerely,
Vernon Suhn, Owner
Suhn Cattle Company
RR2, Box 67
Eureka, Kansas 670445-9428
(620) .583-5923
MTC-00029672
January 22, 2002
[[Page 28705]]
Judge Kolar Kottely
U.S. Department of Justice,
Antitrust Division
601 D Street, N. W., Suite 1200
Washington, DC 20530
Dear judge Kottely:
As an educator, with 37 years of experience, I have followed the
Microsoft antitrust suit with much interest and would like to
express a major concern regarding the timely disposition of this
matter.
I believe the principle parties of this suit have come to a fair
settlement for all concerned. However, the nine remaining attorneys
general and the District of Columbia need to put aside their
individual grievances and settle in the interest of consumers as
well as the technology industry which so greatly affects the growth
of our economy. It disappoints me that the Attorney General of
Kansas is one of the parties who have resisted settlement.
I am encouraged that this settlement has the prospects of more
healthy competition in the software industry as well as the
increasing the availability of a variety of software to consumers. I
sincerely hope you will actively work toward approving the
settlement of this case as soon as possible.
Sincerely,
Kent Austin, Speech Pathologist/Audiologist
2520 Coronado Ct.
Emporia, Kansas 66801
MTC-00029673
Patricia Piester
12122 willow Lane, #1124
Overland Park, KS 66213
January 21, 2002
Judge Kolar Kottely
U.S. Department of Justice, Antitrust Division
Attention: Renata Hesse
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Judge Kottely,
The Federal government has been pursuing its case against
Microsoft for 3 years and has spent $30 million of the hard-earned
taxpayer's dollars in an effort to protect the consumer against
Microsoft's perceived unfair business practices. The result has been
confusion and no clear answers.
The Court of Appeals effectively put an end to this case by
throwing out a break-up plan instituted by a lower court. This move
was clearly in the right direction. We should follow their lead by
putting an end to this case. Nothing good will come from dragging it
out any longer at an even greater cost to taxpayers and consumers.
Instead, we must see action now in order to spur the American
economic recovery we need, especially for our ailing technology
industry.
Please support the proposed settlement in this case.
Thank you for considering my opinion on this case.
Sincerely,
Patricia Piester
MTC-00029674
January 25, 2001
Renate Hesse
Antitrust Division,
Department of Justice
Fax (202) 616-9937
To Whom It May Concern:
I am writing to express my support for the Department of Justice
settlement in your case against Microsoft. I understand that you are
close to a settlement and have asked for public input about this
issue.
Our tax dollars are spread thin as well our governmental
resources. Enough time and money has been spent on this case to come
up with the current settlement. The settlement is impartial and the
punishment fits the wrong.
My concern at this time is "who" will actually
benefit from continuing this case against Microsoft, I believe it
will be Microsoft's competitors and not consumers. The current
settlement creates a stronger technology industry and consumers will
be the overall winners. The case against Microsoft stands as an
obstruction to progress. We are going through a war and economic
recession. Refusing to settle and extending the campaign against
Microsoft is technically out-of-date and just another reason for the
country slow down. It is time to get back to work.
Thank you for your time and your efforts to settle US v.
Microsoft as soon as possible.
Sincerely,
Jaye Stretesky
P.O. Box 2553
South Lake Tahoe, CA 96158
MTC-00029675
Renata Hesse
Trial Attorney; Antitrust
U.S. Department of Justice
601 "D" Street NW
Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
It has come to my attention that the Department of Justice has
brokered a settlement with Microsoft that could end the government's
anti-trust case against this company. I am very supportive of this.
I live in Kansas where our own Attorney General Carla Stovall
has been. a leading advocate for the breaking up of Microsoft and
has refused to join. the settlement of this case. I am very
disappointed that the Attorney General who was elected to protect my
interests continues to pursue this case.
The basis for this suit has always been a mystery to me.
Microsoft creates great products that people want to purchase.
Because the company is in tune with American consumers and is very
innovated they have grown tremendously. This growth has benefited us
through lower prices, a growing technology industry and a previously
skyrocketing NASDAQ. If Attorney Generals like my own were really
interested in protecting the public good they would join this
settlement. Besides, it appears to me that those who sought to
punish Microsoft are getting much of what they want in this
agreement.
I urge you to accept this settlement.
Sincerely,
MTC-00029676
To: c/o Renata Hesse, Trial Attorney
Date: Sun Jan 27 21:39:18 CST 2002
Pages (including cover): 4
From: Rick Voland
Comments: Please oppose the proposed settlement in United States v.
Microsoft Corporation.
2120 University Ave., Apt. 210
Madison, WI 53705-2343
January 27, 2002
Renata Hesse, Trial Attorney
Suite 1200, Antitrust Division
Department of Justice
602 D Street NW
Washington, DC 20530
fax (202) 616-9937
Dear Renata Hesse,
Thank you for this opportunity to comment on the United States
v. Microsoft Corporation; Revised Proposed Final Judgement and
Competitive Impact Statement. I write as an advanced user. I am not
a programmer, but I rely on computers for my work and am very much
concerned about preserving diversity, choice, and quality in
computer software.
I am concerned about the power of Microsoft to coerce its
competition. Microsoft paid money to both Corel and Apple when each
company was desperate and Microsoft could control the terms. I am
also concerned that Microsoft forces computer manufacturers to
bundle Microsoft applications with the result that computer buyers
now assume that Microsoft applications are part of Windows and are
included at no cost. The settlement proposed by the Department of
Justice would not cover either of these situations even thougt1
riley are clear examples of the power of Microsoft to coerce its
competitors into less competitive postures.
In Apple Computer's 10K annual report for the fiscal year ended
Sepbember 30, 2000 is the statement of an agreement between Apple
Computer and Microsoft. "Microsoft purchased 150,000 shares of
Apple...preferred stock...for $150 million [p. 52]. Apple in turn
agreed to limit computer production, and thus competed less against
Microsoft.
In August 1997, the Company and Microsoft Corporation entered
into patent cross licensing and technology agreements. In addition,
for a period of five years from August 1997, and subject to certain
limitations related to the number of Macintosh computers sold by the
Company, Microsoft will make future versions of its Microsoft Office
and Internet Explorer products for the Mac OS. Although Microsoft
has announced its intention to do so, these agreements do not
require Microsoft to produce future versions of its products that
are optimized to run on Mac OS X. The Company will bundle the
Internet Explorer product with Mac OS system software releases and
make that product the default Internet browser for such Mac OS
releases. [p. 24, "SUPPORT FROM THIRDPARTY SOFTWARE
DEVELOPERS," emphasis added] The same document discusses Apple
Computer's continued dependence on CPU chips from Motorola
[INVENTORY AND SUPPLY, pp. 22-23]. Apple Computer's new
operating system, now known as Mac OS X, derives from Nextstep and
Openstep purchased with NEXT, Inc. Both Nextstep and Openstep run
well on CPU chips by Intel
[[Page 28706]]
or Motorola. I am writing this letter on an Intel PC minting
Openstep 4.2. Even the bridging version between Openstep and Mac OS
X (a developer-only release known as Rhapsody) ran on both Intel and
Motorola CPU chips.
This cross-platform technology would have left Apple Computer
far more flexible and competitive as Motorola continues to have
manufacturing problems that leave Apple Computer with more marketing
problems (the megahertz gap) and a more hazy future. Motorola chips
currently cannot achieve the same clock speeds (megahertz) as CPU
chips from Intel, AMD, etc. Consumers often choose computers on the
basis of clock speeds, so they tend to discount Apple computers even
though the Motorola chips accomplish more work than Intel chips for
the same clock speed (the megahertz myth). Apple Computer has been
aware of this situation for several years.
The statement that Apple Computer agreed to limit its production
is not about Apple limiting its production of the Apple computers
using Motorola chips. Apple agreed at that time to stop development
of Mac OS X for Intel which would have been a far more serious
competitor to Microsoft. A consumer could buy an inexpensive PC and
replace the Windows operating system with Mac OS X for Intel. Mac OS
X is derived from Unix and is known for great stability. Also, Mac
OS X has special software development tools that would attract
developers because individuals could complete aggressively with far
larger software colt)orations. Mac OS X for Intel would have allowed
Apple Computer to move from selling hardware (Macintosh Computers)
and proceed to selling software only (Mac OS X) in the same way as
NEXT, Inc. moved from selling hardware and software to selling
software only. The investment by Microsoft in Apple was incidental.
Apple Computer's real concern was that Microsoft threatened to cease
development of Microsoft Office for Macintosh, leaving Apple
Computer without a strong word processor and office suite. In
return, Apple Computer agreed to make Microsoft Internet Explorer
the default web browser, instead of Netscape. Macintosh computers
don't use Windows, but they largely still depend on Microsoft
Office, and Microsoft maintains a hold. Microsoft played one rival
(Apple Computer) against Netscape, another rival.
In press release dated October 2, 2000, Corel, Inc. announced
that Microsoft agrees to buy 24 million shares of Corel preferred
stock at US $135 million. Corel now owns and develops WordPerfect, a
competitor to Microsoft Word. WordPerfect was once a dominant word
processor, but is now far in the minority. The DoJ Microsoft trial
included evidence that Microsoft shipped flawed versions of the
Windows 95 operating system to WordPerfect developers in order to
leave WordPerfect a flawed product that could not easily compete
with Microsoft Word. Also, Microsoft cultivates bundling agreements
where PC manufacturers include Microsoft Word and other components
of Microsoft Office with Windows computers so that consumers do not
even think of purchasing WordPerfect. Then, when they upgrade their
software, they continue to purchase Microsoft Word and do not
consider WordPerfect. This agreement with Corel, has Microsoft
offering .NET, a sort of networking server technology, to Corel. It
is interesting that Corel now offers all its graphics products in
versions optimized for the new Mac OS X, and advertises its
cooperation with Apple. At the same time, it has ceased development
of WordPerfect for Macintosh. WordPerfect for Linux exists and could
be easily ported to the new Unix-based Mac OS X. This agreement
between Microsoft and Corel looks like an agreement to dissuade
Corel from continuing to compete agressively with Microsoft Word.
Isn't perception an important part of this case?
Microsoft bundles many small applications with Windows that
leave fewer opportunities for third-party competitors. Windows now
includes image editing software that took away opportunties from
Kodak. Kodak negotiated some new opportunties. Kodak now offers
little support for Macintosh computers. The larger number of Windows
computers is not a true measure of the market here. A large
proportion of the images on the Internet were created with Macintosh
computers. The graphics and desktop publishing industries still rely
heavily on Macintosh computers, yet Kodak digital cameras offer far
less support for Macintosh computers than for Windows computers.
Microsoft is now offering very inexpensive versions of its
software to schools at prices far below even academic prices. Here
at the University of Wisconsin-Madison, Microsoft Office is
available at $25-30 for a fully functional suite, and
Microsoft Windows 2000 at a similar price. In return, Microsoft
often pressures schools to replace their server software with
Microsoft products. These prices are attractive because they offer a
product students want at an attractive price, but they leave server
operators subject to pressures unrelated to product quality. Also,
end users may find themselves with fewer opportunties because
Microsoft server products do not interoperate well with non-
Microsoft products. Microsoft has a history of adopting Internet
standards and then releasing an "enhanced" version that
only works with Windows computers. By the way, the DoJ uses an
opensource product (OpenBSD) downloaded from Canada
(www.openbsd.org) for its most sensitive communications that require
the ultimate in security.
The proposed agreement (final judgement) between the US
Department of Justice and Microsoft does not provide protections for
Apple Computer or for developers of Linux and other opensource
software (e.g., FreeBSD) that would compete with Microsoft products.
Linux, FreeBSD, and Hewlett-Packard servers would face unfair
competition as I describe in the previous paragraph. The DoJ
proposal does not address these concerns. Please separate the
Microsoft operating system and application (e.g., Word) divisions.
Titus, I favor a breakup of Microsoft into at least two parts.
Thank you for your time and consideration.
Sincerely,
Rick Voland
MTC-00029677
MINDI COOK
4824 SW 98h Ter
Augusta KS 67010
January 21, 2002
Renata Hesse, Esq.
U.S. Department of Justice
Anti-trust Division
601 "D" Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
I was truly glad to learn that the court was conducting a
comment period during which I might write to express my views
regarding the lawsuit currently being waged against Microsoft. I
have been opposed to this lawsuit for quite some time for many
reasons, including its high cost to American taxpayers, its apparent
negative effect on the technological industry and general economy,
and its attempts to over-monitor the business activities of an
American company. If I could see that Microsoft was, in any way.
threatening our free marketplace and driving up consumer costs, I
might feel differently about the matter. But I see no indication
that Microsoft has hurt the tech industry in any way. It makes me
wonder who and what is really driving the campaign against Microsoft
and I resent having to pay for a lawsuit that most likely serves the
interests of Microsoft's competitors--not the American public.
We, the American people, need to have the court decide this
matter in a manner that truly serves our needs -not the needs of a
big business. In light of that fact, I ask the court to please
accept the settlement proposed by President Bush's team and end this
lawsuit as soon as possible.
Sincerely,
Mindi Cook
MTC-00029678
??
2825 Ya??cy St. SW
Seattle, WA 98126
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing you today to express my opinion in regards to the
US vs. Microsoft settlement. I support Microsoft in this dispute and
I believe this litigation is costly and will have adverse effects on
consumers. I support the settlement that was reached in November and
would like to see a permanent resolution to this dispute.
The settlement that was reached is reasonable and far more than
sufficient to deal with the issues of this lawsuit Under this
agreement, Microsoft must grant the same rights to all of the twenty
major computer makers who want to install Windows on their machines,
no matter how the companies configure the platform.
I think this witch hunt to try and make Microsoft the villain is
going to have a detrimental effect on the business climate for now
and the future. Please pick another battle .... like national
security.
We are facing a lagging economy presently. We must do all we can
to boost and stimulate our economy, Stifling Microsoft will not
[[Page 28707]]
accomplish this. Letting them go back to Washington State to develop
more software will. Please support this settlement and allow
Microsoft to get back to business.
MTC-00029679
Renata B. Hesse, Trial Attorney
Suite 1200,
Antitrust Division
U.S. Department of Justice
601 D Street NW
Washington, DC 20530-0001
Via Fax @ 202-307-1545
The undersigned is opposed to the proposed settlement in the
Microsoft antitrust trial because the settlement does not fully
redress the actions committed by Microsoft, nor substantially
inhibit their ability to commit similar actions in the future, or
most importantly, attempt to restore competition to this important
market.
Furthermore, there are concerns regarding the fact that none of
the provisions within the settlement effectively address Microsoft's
abuse of its monopoly position in the operating system market. Even
non-educated, non-technical citizens can recognize the absurdity and
inequity of the requirement that consumers pay for a Microsoft OS on
a new PC--whether it is wanted or not--and yet this most
basic issue has never been addressed.
Perhaps most appalling is that the proposed settlement does
nothing to address Microsoft's previous misdeeds. Software piracy or
violations of the DMCA result in million of dollars in fines and
potential incarceration, yet no penalties are stipulated in this
settlement? it is equally disheartening that there are no provisions
to address future abuses instead the settlement, from a technical
perspective, appears to bolster Microsoft's expanding control of the
Internet and other related areas, Letting the US government publicly
reward criminal behavior simply makes a mockery of the law.
Microsoft's monopolistic practices cause the public to bear
increased costs and deny them products and innovation that would
otherwise be created because of competition. Consequently it is
incomprehensible that obvious cost free measures, such as a
requirement for the inclusion of Linux and dual-booting on all OEM
PC's, is not even considered.
The finding that Microsoft was (and is) an abusive monopoly must
be followed by specific, well-defined measures to address past
practices and compensate those harmed by the abuses, In addition,
substantial penalties and measurable sanctions are required to
prevent future monopolistic abuses. Based on past history, it is
even more crucial that strong constraints be placed on Microsoft to
mitigate their proven propensity for illegal and unethical
activities. The proposed settlement is clearly inadequate to serve
its function and calls into question the United State's Judicial
System's ability to appropriately perform its purpose. As such, it
is respectfully requested that the entire matter be reconsidered in
a public courtroom.
MTC-00029680
Elsie Zeurcher
1556 SW Santa Fe Lake Road
Towanda, KS 67144
January 24, 2002
Ms. Renata Hesse
Anti-trust Division
Department of Justice
601 "D" Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
I understand that the Department of Justice is currently
conducting a comment period during which members of the American
public may express their opinions regarding the Microsoft anti-trust
settlement proposed by the Bush administration. I am grateful to
have this opportunity to voice my thoughts and would like to thank
you in advance for your consideration of my views on this matter.
I firmly believe that the court should approve the settlement
which I understand Microsoft has already agreed to accept. At this
time in our nation, saving resources for homeland defense and taking
steps to strengthen our economy should be at the top of the
government's priority list. If the court agrees to the Microsoft
settlement, thus ending this expensive and troublesome lawsuit, it
will be appropriately addressing both of those pressing needs by:
(1) freeing up resources for defense and (2) allowing one of our
nation's most productive companies, Microsoft, to continue to
generate health activity in the marketplace.
Please consider carefully the realities that face the United
States today and approve the Microsoft anti-trust settlement. Thank
you again for your consideration.
Best regards,
Elsie Zeurcher
MTC-00029681
Jim Morrill
2220 Casement Road
Manhattan, KS 66502-6628
January 21, 2002
Renata Hesse, Esq.
Trial Attorney, Anti-trust Division
Department of Justice
601 "D" Street NW, Ste. 1200
Washington, DC 20530
Dear Ms. Hesse:
I would like to thank the court for inviting the views and
opinions of individual United States citizens regarding the
Microsoft anti-trust lawsuit and proposed settlement, it seems only
right that those of us on the front lines, paying taxes and
supporting the economy, should have a voice in this matter.
Free trade is a cornerstone of American capitalism and I believe
that the court has been attempting to protect our free trade through
its pursuit of Microsoft. However, in spite of all good intentions,
the court's efforts appear to have damaged free trade and enterprise
instead of protecting it. As a result of the court's actions,
Microsoft, one of our nation's most productive business giants, has
been forced to pour untold resources into defendin9 itself against
an ever-changing, never-ending lawsuit that has yet to establish
that the company has harmed the marketplace in any way. In fact, as
a result of Microsoft's commitment to improving technology, average
American consumers now have access to affordable computer products
that were out of reach to them only a decade ago. In the interest of
free trade, the court should allow such a company to continue to
generate products and business without undue interference.
Additionally, as the court makes its decision regarding the
Microsoft settlement. I ask that it consider the amount of taxpayer
money it will save by ending this expensive litigation. Too man.,,,
hard-earned dollars have already been thrown at this dubious case.
Acceptance of the proposed settlement will stop the bleeding and
save American citizens further needless cost. I ask the court to
make the decision that will truly protect free trade and best
benefit the American public. Accept the settlement and end the
Microsoft anti-trust case quickly.
Respectfully,
Jim Morrill
MTC-00029682
Logan Overman
632 Tara Court ?? Wichita ?? KS ?? 67206
Renata Hesse
Trial Attorney
US Department of Justice
601 D Street, N-W Suite 1200
Washington, DC 20530
Dear Attorney Hesse:
As an avid consumer of new technology products I am writing to
express to you my support for the settlement of the Microsoft anti-
trust lawsuit. There are many arguments why the case against
Microsoft was an ill-founded decision. However, I feel the economic
reasons are the most compelling.
The whole premise of the government's case has been that
Microsoft was responsible for significant consumer harm. It is quite
apparent this is not the case. Microsoft is the leading choice among
consumers because they find its products to be of superior quality.
Yet the government has spent millions of dollars prosecuting a case
that the public does not support. The cost to the taxpayer has been
staggering
The damage this case has caused to our nation's financial well-
being goes beyond the wasting of public funds. This case and the
government's threat of break-up have served as a deterrent to
investment in the computer and communications industry. There are
many contributing factors to the major decline of the NASDAQ,
however, the threat of serious government intervention in our
nation's fastest growing industry only added to the problem.
In an effort to end this case, DOJ and Microsoft negotiators
have found enough common ground to reach a settlement. Based on my
knowledge of the agreement this settlement is a solid one. Microsoft
will be held responsible for portions of the complaint upheld in
court and an independent commission will monitor its compliance with
the provisions of the settlement.
The settlement of this case is a good indication that companies
like Microsoft will be free to compete and grow in our open market.
Both our economy and consumers will benefit.
Sincerely,
Logan Overman
[[Page 28708]]
MTC-00029683
Kristen Boulware
Renata Hesse, Antitrust Division
Public Comment
U.S. Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
Finally, Microsoft and the U.S. DOJ have agreed upon a
settlement of the marathon-style anti-trust suit against the
company. I think that having nine states sign on to the deal proves
its value.
From what I have read and heard about the proposed settlement
that is pending your approval, it goes a long way toward what the
DOJ wanted to accomplish, but does not completely tie Microsoft's
hands in a way that they cannot compete. To me this makes great
sense as a worthy compromise.
I am hopeful the judge will approve this settlement and allow
all the case's participants to go back to doing business as they
should.
Thank you.
Kristen Boulware
11780 West 118th Terrace
Overland Park, KS 66210
MTC-00029684
Ms. Renata Hesse
U.S. Department of Justice, Anti-trust
601 D Street Northwest, Suite 1200
Washington, DC 20530
Ms. Hesse:
I am writing to express my support for the Microsoft antitrust
settlement propsed by President Bush and his administration.
While I appreciate the Department of Justice's concerns
regarding the effects Microsoft creates in our marketplace, I
believe the facts all point to this conclusion: Microsoft is not a
threat to free trade. I believe the real threat in this matter lies
in the exorbitant cost of continuing to pursue Microsoft in court.
I ask the court to please approve the proposed Microsoft
settlement and put an end to this lawsuit.
404 Traders Ave
Fall River, KS 67047
MTC-00029685
Scalio, Inc.
Tel: (425)889-8553
Fax: (425)889-9303
6119 114th AVE NE
Kirkland, WA 98033
FAX COVER SHEET
Date:----/----/----Pages, including
cover page:--------
To:
Name:
Office Number:
Phone Number:
Fax Number:
From:
Name:
Office Number:
Phone Number:
Fax Number:
Note:
Ramon G. Pantin
From: "Ramon G. Pantin"
To:
Cc:
Sent: Sunday, January 27, 2002 11:59 PM
Attach: commenls-040.html
Subject: Microsoft Settlement
Dear Department of Justice representative,
Attached is an HTML document with my comments about the
settlement proposed. I have included my background and contact
information in that document.
Please feel free to contact me at:
rgp @ scalio.com
or at home at:
425-889-1043
if you have trouble with the attached documents.
Sincerily,
Ramon G. Pantin
Introduction
My name is Ramon G. Pantin, I have been in involved in
commercial Operating System development since 1989. I have worked on
the design and implementation of a large variety of Operating
Systems and system software (operating system components) including
chronologically:
. IBM's AIX 3. I, AIX 3.2, AIX 4.1 and AIX 5.x UNIX operating
systems for their RS/6000 product line (recently renamed eServer
pSeries) as a consultant.
. Tandem's NonStop UX UNIX operating system for fault tolerant
systems (as an employee of Tandem Computers).
. IBM's now defunct WorkPlace OS desktop operating system
(successor to their OS/2 product) ) (as a consultant and later as an
employee).
. Microsoft's Windows NT4.0 and Windows 2000 (employed by
Microsoft).
. ICCOS (a now defunct operating system) (employed at TagoSoft,
Inc.)
. FreeBSD UNIX operating system (at TagoSoft, Inc and consulting
for Shawn Systems, Inc).
. SUN's Network Filesystem V3 for Windows NT (as a consultant)
. SUN's PC/SKIP product for Windows NT (as a consultan0
. Impactdata/Megadrive/Data Direct Networks CDNA shared storage
SAN file system (as a consultant and later as an employee)
. At Scalio, Inc developping storage management software for
both Windows 2000 and UNIX systems.
. IBM's AIX 5.x UNIX operating systems for their RS/6000 product
line (recently renamed eServer pSeries) as a consultant to Veritas
Software making changes to AIX as part of an IBM/Veritas
relationship.
I have also taught operating systems design classes at
Universidad Simon Bolivar (Venezuela) in 1989 and professional
system software classes, both for UNIX and Windows NT. I consider
myself eminently well versed as a software enginner with 12 years of
hands on operating system design and development.
The issues herein are of great importance to me and the industry
that I am a participant of. I appreciate the opportunity to comment
about the proposed settlement.
Below is a long list of comments. Each comment's name is of the
form "Comment X.Y" where X is the major section of the
proposed settlement within which the commented terms are discussed,
and Y is simply a sequential number of the comments that I have
written and it is actually independent of the acutal comment
numbering within the proposed settlement itself. Each comment
includes the appropriate reference to text in question within the
proposed settlement document.
I am available for comment and clarification in any and all
issues hereing, preferrably thorugh email, please contact me at:
Ramon G. Pantin
rgp @ scalio.com or at:
Ramon G. Pantin
6119 114th AVE NE
Kirkland WA 98033
Sincerily,
Ramon Pantin
January 26th, 2002
Comment III.1
Section III.A reads:
"A. Microsoft shall not retaliate against an OEM by
altering Microsoft's commercial relations with that OEM, or by
withholding newly introduced forms of non-monetary Consideration
(including but not limited to new versions of existing forms of non-
monetary Consideration) from that OEM, because it is known to
Microsoft that the OEM is or is contemplating:" There are 3
problems with this section:
1. It allows Microsoft to withhold existing forms of non-
monetary Consideration, because it only prevents witholding newly
introduced forms;
2. Monetary considerations are explicitly excluded, they
shouldn't be excluded.
3. Microsoft knowledge is irrelevant and hard to establish, that
text only contributes to the ambiguity of this section. Section
III.A should be not be constrained or qualified in these ways. It
should be replaced with this text:
A. Microsoft shall not retaliate against an OEM by altering
Microsoft's commercial relations with that OEM, or by withholding
any forms of Consideration from that OEM, because the OEM is or is
contemplating:" Comment III.2
Section III.A.I reads:
"1. developing, distributing, promoting, using, selling,
or licensing any software that competes with Microsoft Platform
Software or any product or service that distributes or promotes any
Non-Microsoft Middleware;"
There are 2 problems in this section:
1. Microsoft in the past has retaliated against OEMs that market
products that compete against Microsoft products, not just Microsoft
Platform Software. For example, Microsoft retaliated against IBM
when IBM decided to pro-install its SmartSuite product (a product
that competes directly with Microsoft Office) on its PCs, see
Findings of Fact, paragraph 122 which reads: "... Then, on
July 20, 1995, just three days after IBM announced its intention to
pro. install SmartSuite on its PCs, a Microsoft executive informed
his counterpart at the IBM PC Company that Microsoft was terminating
further negotiations with IBM for a license to Windows 95. Microsoft
also refused to release to the PC Company the Windows 95
"golden master" code. The PC Company needed the code for
its product planning and development, and IBM executives knew that
Microsoft had released it to IBM's OEM competitors on July 17
...."
[[Page 28709]]
2. The words "any software that competes" allow for
retaliation against the development, distribution, promotion, use,
sell, or licensing of any technology that competes against Microsoft
technologies. Examples of such technologies, include but are not
limited to: technical standards, open or proprietary protocols,
services, hardware products, etc. Section III.A1 should be not be
constrained or qualified in these ways. The existing Section III.A.1
should be left as part of the text and a new paragraph should be
added to the list. Thus Section III.A.4 (a new paragraph) should be:
"4. developing, distributing, promoting, using, selling,
or licensing any technology or product that competes with any
Microsoft product, technology or service;" Comment III.3
Section III.A.2 reads:
"2. shipping a Personal Computer that (a) includes both a
Windows Operating System Product and a non-Microsoft Operating
System, or (b) will boot with more than one Operating System;
or" Microsoft currently forbids OEMs, or it imposes Market
Development Agreement penalities or it withholds Consideration from
OEMs when they offer for sell Personal Computers without a Microsoft
Operating System. Because of the earlier consent decree imposed on
Microsoft, instead of requiring that every Personal Computer include
a Microsoft Operatin System, Microsoft requires that for each model
of Personal Computer offered by the OEM that each Personal Computer
of that model be sold with a Microsoft Operating System. If this
isn't done, Market Development Agreement penalties or Considerations
are withheld from the OEM. Theoretically, the OEM is free to offer a
model of Personal Computers for which it expects to sell such a high
fraction of them without a Microsoft Operating System, that offering
them in that way doesn't cause harm or competitive disadvantage to
the OEM. In reality, node of the models of Personal Computers are
expected to sell in any large enough percentage without a Microsoft
Operating System, thus the OEM ends up paying for a Microsoft
Operating System for each Personal Computer for each model that it
offers, thus it is forced to always pay for a Microsoft Operating
System.
Microsoft, additionally requires that the end user of the
Personal Computer accept a license agreement, and the it indicates
that if the license agreement is not accepted, that the Microsoft
Operating System product should not be used and that the Personal
Computer manufacturer should be contacted for a refund.
Because of Microsoft per unit per model royalty imposition on
the OEM, the OEM has no incentive to provide such a refund to the
end user and these requests are largely ignored by the OEMs thus
resulting in end users that desire to purchase a Personal Computer
to pay for a software licesnse for a Microsoft Operating System,
even if they never use such a software. Given Microsoft's creativity
in constraining OEMs in their business decisions, a broad based term
should also be included. For example, Microsoft could
technologically constraint the GEM from supporting non-Microsoft
Operating Systems, for example by Microsoft imposing on the GEM
technological standards that must be used in the Personal Computer
design and because of intellectual property reasons the use of these
standards prevent non-Microsoft Operating Systems from functioning
on the Personal Computer (for example because Microsoft might have
patents on the technology).
Section III.A.2 should be augmented with these subclauses to
allow consumer to purchase Personal Computers without a Microsoft
Operating System:
"2. shipping a Personal Computer that (a) includes both a
Windows Operating System Product and a non-Microsoft Operating
System, or (b) will boot with more than one Operating System, or (c)
does not include any Operating System of any kind, or (d) includes a
Windows Operating System Product and provides for the removal of the
Windows Operating System Product during the startup of the Personal
Computer, as long as the Windows Operating System has not been used
by the consumer, and allows for a refund to be issued to the
comsumer for the price of the operating system, or (e) in any way
supports or provides non-Microsoft Operating Systems; or"
Comment III.4
Section III.A by virtue of enumerating the activities that the
GEM "is or is contemplating" allows Microsoft to
retaliate for any activities not explicitly enumerated in this list
(III.A.1, III.A.2, III.A.3, etc). A broad term should be added that
prevents Microsoft from any other cause for retaliation. Section
III.A.5 should be added (Section III.A.4 was proposed to be added
above in Comment III.2):
5. engaging in any lawful activity by any means by itself or in
cooperation with any party.
Comment III.5
Section III.A in the fith paragraph (the paragraph under
III.A.3) reads in its last two sentences: "Microsoft shall not
terminate a Covered OEM's license for a Windows Operating System
Product without having first given the Covered GEM written notice of
the reasons for the proposed termination and not less than thirty
days" opportunity to cure. Notwithstanding the foregoing,
Microsoft shall have no obligation to provide such a termination
notice and opportunity to cure to any Covered GEM that has received
two or more such notices during the term of its Windows Operating
System Product license."
There are three problems with these sentences:
The time period of thirty days for cure is extremely short and
would lead to unnecessary hardship on the OEM because of product
distribution considerations (channel, distribution, resellers) that
might require a constly product recall to be able to cure in thirty
days. A period of at least 90 days is more appropriate. It is
interesting to notice how terminating a Covered OEMs license and
thus putting the OEM immediately out of the Personal Computer
business is codified into this consent decree, when any restraint on
Microsoft's illegal monopolistic behaviour requires (so far) years
of litigation and continued complaints about how
"draconian" such measures are.
2. The non-obligation to provide a termination notice can be
used by Microsoft as a means of retaliation by not enforcing
contractual terms on some OEMs while enforcing them on others, thus
easily allowing for just two such notices to cure to be used as
retaliatory means. The number of notices should be a function of
time, for example 2 notices per year.
3. Microsoft should be required to enforce contractual terms in
a non-discriminatory way across all OEMs, it should not be allowed
to selectively enforce contractual terms because it would provide an
easy retaliatory tool against the OEMs. Additionally, Microsoft must
show that if it makes efforts to enforce certain terms, then it must
enforce all terms across all OEM with equal effort, dilligence and
strength.
4. The notion of termination notices, per se, is problematic,
because termination notices might not even correspond to actual OEM
behaviour but to misunderstanding between the parties or Microsoft's
desires for retaliation against the OEM. Any such termination notice
should be submitted to the Technical Committee for technical
consideration, the Microsoft Internal Compliance Officer, and to all
the Plaintiffs; together with detailed documentation of the non-
discriminatotry enforcement by Microsoft of these and any other
contractual terms across all Covered OEMs. This communication is
important because it ensures that the antitrues enforcement parties
are involved from the start when any such notice is given. Comment
III.6
Section III.A, last paragraph reads:
"Nothing in this provision shall prohibit Microsoft from
providing Consideration to any OEM with respect to any Microsoft
product or service where that Consideration is commensurate with the
absolute level or amount of that OEM's development, distribution,
promotion, or licensing of that Microsoft product or service."
These issues should be addressed:
1. Such Consideration should be offered to all Covered OEMs in a
non-discriminatory basis.
2. The Consideration should be objectively measured according to
established accounting practices.
3. The Technical Committee, the Microsoft Internal Compliance
Officer, and all Plaintiffs should be informed and provided a copy
of any and all such agreements and be allowed to requests additional
documentation and conduct interviews related to the agreement.
Comment III.7
Section III.B, first paragraph reads:
"B. Microsoft's provision of Windows Operating System
Products to Covered OEMs shall be pursuant to uniform license
agreements with uniform terms and conditions. Without limiting the
foregoing, Microsoft shall charge each Covered OEM the applicable
royalty for Windows Operating System Products as set forth on a
schedule, to be established by Microsoft and published on a web site
accessible to the Plaintiffs and all Covered OEMs, that provides for
uniform royalties for Windows Operating System Products, except
that:" Issues:
[[Page 28710]]
1. In the first sentence, where it reads "... with uniform
terms and conditions." it should read:" .... with
uniform terms and conditions and Considerations."
Considerations established outside or after the license agreement
has been entered should be communicated to the OEMs in a uniform
manner. All agreements and Considerations should be provided to the
Technical Committe, the Microsoft Internal Compliance Officer, and
all Plaintiffs and these parties must be allowed to requests
additional documentation and conduct interviews related to the
agreements and Considerations.
2. Microsoft in the past has discriminated against OEMs and
other Personal Computer manufacturers (for example Apple) by
threatening to not make Microsoft products available on those
manufacturers computers, for example Microsoft Office cancellation
for Apple's Macintosh systems. Additionally, Microsoft has used the
OEM prices of these non-Operating System products as a means to
discriminate against OEMs. The prices and the offering of any
Microsoft product to any Covered OEM for bundling with a Personal
Computer should be nondiscriminatory and subject to uniform license
agreements.
3. Volume discounts of groups of Microsoft Operating System
Products and Microsoft non-Operating System Products should not be
allowed, because it might lead to exclusion from the market of
products that competed against the Microsoft non-Operating System
Products. For example, group discounts for a bundle of Microsoft
Windows XP and Microsoft Office; or Microsoft Windows XP and
Microsoft Word (or Microsoft Excell, etc); or Microsoft Windows XP
and Microsoft Works; must not be allowed.
Comment III.8
Section III.C reads:
"C. Microsoft shall not restrict by agreement any OEM
licensee from exercising any of the following options or
alternatives:"
This should read:
C. Microsoft shall not restrict by agreement or any other means
any OEM licensee from exercising any of the following options or
alternatives:
For example, Microsoft could, through verbal or written
communication, or through the quality of service that it provides
the OEM restrict the OEM, or threaten the OEM from exercising the
alternatives. Microsoft has in the past retaliated against OEMs,
particularly IBM and Gateway, as is described in detail in the
Findings of Fact through means other than agreements. For example by
witholding IBM participation in marketting programs, or threatening
Gateway with sofware audits.
Comment III.9
Section III.C.1 and others enumerate:
"icons, shortcuts, or menu entries" this list should
be: icons, shortcuts, folders, appliactions, explorer hierarchies or
menu entries
Comment III.10
Section III.C.1 ends in "with respect to non-Microsoft and
Microsoft products." This should be changed to read:
"with respect to non-Microsoft and Microsoft products or
technologies that offer similar types of functionality." For
example, the technology might be provided by a network service and
not by a product installed in the Personal Computer, how the
technology is provided should not be a reason for allowing Microsoft
to retaliate or discriminate.
Comment III.11
In general, section III.C.1 and throughout the document, it is
assumed that the only way to allow applications or software
facilities to be used is through "icons, shortcuts, or menu
entries", when in reality, applications/middleware can also be
activated by associating it with particular types of data, and when
such types of data are accessed, the application associated with it
is activated. For example, when a file with a given extension is
accessed, or when a URL is accessed over the interact, the type of
the data is determined and the application associated with that type
of data is activated. It is vital that such associations be allowed
in a non-discriminatory basis between Microsoft and non-Microsoft
technologies. For example, when a Internet audio URL is accessed,
the media player associated with the data type is invoked to cause
the audio to be decoded and played. It is not unsusual for multiple
competing technologies, such as Microsoft Media Player, Real
Networks and Apple's Quicktime media players to be capable of
supporting the same data types, thus the preservation of the setting
chosen by the user is important. Discrimination in this area has
occurred in the past against both Apple's Quicktime and Real
Network's Real Player. The document should be updated throughout to
take into account this form of application activation through data
type and file name extension associations.
Comment III.12
Section III.C.2 reads:
"2. Distributing or promoting Non-Microsoft Middleware by
installing and displaying on the desktop shortcuts of any size or
shape so long as such shortcuts do not impair the functionality of
the user interface."
The term shortcuts should be replaced with icons, because many
types of items can be shown on the desktop and these are not limited
to shortcuts. For example, applications, files, folders, etc.
Comment III.13
Section III.C.3 reads:
"3. Launching automatically, at the conclusion of the
initial boot sequence or subsequent boot sequences, or upon
connections to or disconnections from the Interact, any Non-
Microsoft Middleware if a Microsoft Middleware Product that provides
similar functionality would otherwise be launched automatically at
that time, provided that any such Non-Microsoft Middleware displays
on the desktop no user interface or a user interface of similar size
and shape to the user interface displayed by the corresponding
Microsoft Middleware Product." Issues:
1. The qualification: "if a Microsoft Middleware Product
that provides similar functionality would otherwise be launched
automatically at that time" is simply a form of restraint of
trade. Microsoft usually doesn't lead in innovation, it follows,
copies and bundles other's innovations into its products. It is
unreasonable to require that Microsoft launch some software at a
particular time to allow others to launch their software at that
time. Usually some third party or OEM will developped these concepts
and only later (much later sometimes) Microsoft will copy the
concepts and include them in their versions of such functionality.
The qualification should be removed.
2. The second qualification is also very unresonable, here
Microsoft again thinks that it can dictate or retrain through its
actions (or lack thereof the innovations of others. The
qualification reads: "provided that any such Non-Microsoft
Middleware displays on the desktop no user interface or a user
interface of similar size and shape to the user interface displayed
by the corresponding Microsoft Middleware Product." Again, it
is ludicrous that competing ISVs or OEMs be reatrained to only mimic
Microsoft's actions when usually innovation happens the other way
around. This qualification should be removed. Why should microsoft
care about the size of the user interface? If the OEM creates a user
interface that is too small, or narrow, or large, it doesn't cause
any harm to Microsoft, only to the OEM in user dissatisfaction and
support costs (none of which are Microsoft's concern given that it
doesn't bare any of those costs, and given Microsoft's treatment of
Hewlett Packard with respect to startup sequnce shells, it has shown
that it doesn't care about those OEM costs).
3. The qualification "if a Microsoft Middleware Product
that provides similar functionality" also allows for Microsoft
restraint of other's innovations, the definition of Microsoft
Middleware Product is particularly weak and full of escape clauses.
The qualification should not be present at all.
4. The time qualification and enumeration of the circumstances
and times under which launching can occur "at the conclusion
of the initial boot sequence or subsequent boot sequences, or upon
connections to or disconnections from the Internet" should
also be removed. There are many reasons why lounching might be
desireable at other times.
5. Launching of should not be restricted to "Non-Microsoft
Middleware", any software should be allowed to be launched.
Section III.C.3 should read:
3. Launching automatically, at the conclusion of the initial
boot sequence or subsequent boot sequences, or upon connections to
or disconnections from the Interact, or at any other time, any Non-
Microsoft software is allowed without this being subject to any
restraint from Microsoft. Mechanisms (APIs, Protocols, Facilities,
etc) present in a Microsoft Operating System that aids launching of
Microsoft software at particular times should be documented and
allowed to be accessed by non-Microsoft software without restraint.
It should be noted that the original Section III.C.3 precludes
the implementation of IAP sign up sequences, OEM shells, end user
tutorials that are desired to be lounched at the initial and
subsequent boot sequences. For example the OEM might present an IAP
sign up sequence until such a time when the user as made such a
selection or when the
[[Page 28711]]
user as indicated that it doesn't want to asked again in subsequent
sign up sequences. The reason the Section III.C.3 precludes even the
implementation in the initial boot sequence is because Microsoft can
remove their own facilities from startup or from displaying a user
interface, thus forcing the OEM to remove their facilities. Freedom
of innovation and choice by the OEMs cannot be at the mercy of
Microsoft's actions. For example, Microsoft might move such
facilities to the second boot sequence and it might require that the
system reboot after an initial boot sequence process, the OEMs would
then not have the freedom to provide their facilities in the second
boot sequence.
Comment III.14
Section III.C.4 reads:
"4. Offering users the option of launching other Operating
Systems from the Basic Input/Output System or a non-Microsoft boot-
loader or similar program that launches prior to the start of the
Windows Operating System Product."
This section should be augmented in this way:
4. Offering users the option of (a) launching other Operating
Systems from the Basic Input/Output System; or (b) launching other
Operating Systems from a non-Microsoft boot-loader or similar
program that launches prior to the start of the Windows Operating
System Product.; or (c) choosing to make a non-Microsoft boot-loader
the default boot loader in the system; or (d) choosing to allow the
end user to interactively direct the Basic Input/Output System or a
non-Microsoft boot-loader or any other facility to remove a
Microsoft Windows Operating System and to provide the Personal
Computer owner to receive a refund for the cost of the Microsoft
Windows Operating System from the OEM; or (e) to select a default
Operating System that is a non-Microsoft Operating System, for
example by allowing the default Operating System to start without
user intervention after a timeout period; or (I3 any other form of
restraint that might cause an OEM to not preload non-Microsoft
Operating systems in theft Personal Computers (for example by having
the Microsoft Operating System corrupt the disk occupied used by
such non-Microsoft Operating Systems, or from denying supprt to OEMs
for such product configurations, etc)..
Given the nature of existing restraints by Microsoft in this
area, these additional clauses allow for less restraint by Microsoft
on the OEMs actions.
Comment III.15
Section III.D reads:
"D. Starting at the earlier of the release of Service Pack
1 for Windows XP or 12 months after the submission of this Final
Judgment to the Court, Microsoft shall disclose to ISVs, IHVs, IAPs,
ICPs, and OEMs, for the sole purpose of interoperating with a
Windows Operating System Product, via the Microsoft Developer
Network ("MSDN") or similar mechanisms, the APIs and
related Documentation that are used by Microsoft Middleware to
interoperate with a Windows Operating System Product. In the case of
a new major version of Microsoft Middleware, the disclosures
required by this Section III.D shall occur no later than the last
major beta test release of that Microsoft Middleware. In the case of
a new version of a Windows Operating System Product, the obligations
imposed by this Section III.D shall occur in a Timely Manner."
Issues:
1. The text "via the Microsoft Developer Network
("MSDN") or similar mechanisms" allows Microsoft
not to use the MSDN program which is broadly available and non-
discriminatory, and allows instead for Microsoft to extract other
agreements and conditions from the interested parties. The intent
should by "via the Microsoft Developer Network
("MSDN") or successor developer program (if the MSDN
program is discontinued or replaced by a new developer program, but
such a program should be equally broadly available and equally
nondiscriminatory as the MSDN program was on the earliest date the
proposed consent decree was filled with the Court by Microsoft and
the Plaintiffs)."
2. The text "APIs and related Documentation" should
be extended to include "APIs, related Documentation,
Protocols, File Formats, Data Formats, Certification/Validation
Component Signatures, and any other technological mechanism".
3. The text "that are used by Microsoft Middleware to
interoperate with a Windows Operating System Product ", given
the loose definition and the escape clauses that Microsoft can
invoke in that definition, and given that Microsoft also markets a
wide variety of non-Middleware software and hardware, the text
should be corrected to require full disclosure of the use by these
software and hardware products of Microsoft Operating System
facilities. The proposed text is shown below.
4. The requirement that disclosure only occur in the case of a
new major version of Microsoft Middleware allows Microsoft an easy
exit from their documentation requirements. Microsoft has stated in
fron of the District Court (Judge Jackson) that a sandwich would be
part of the Operating System if they so dictated, clearly Microsoft
cannot be trusted to name a release major or non-major, because to
Microsoft it would be whatever they desire at such a time.
Furthermore the mechanism of Major and first Minor point release
numbers is highly ambiguous and maleable, certain Microsoft products
don't even have a version number (Windows XP, Microsot .Net). In any
case, whether a product release is major or minor should not be an
excuse for non-diclosure, a small bug fix release wouldn't have many
changes on interface use, so its documentation requirements would be
proportional to the effort spent in the release development. If this
restriction is not removed, facilities would remain undocumented,
simply because Microsoft doesn't use them initially in their so
called major release but instead only uses them initially in a minor
release; or even more easily by making every release a minor
release. Microsoft has shown in the earlier Consent Decree entered
with the D.O.J. that it will take advantage in any ambiguity.
The new section should thus read:
D. Starting at the earlier of the release of Service Pack 1 for
Windows XP or 12 months after the submission of this Final Judgment
to the Court, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs,
and OEMs, for the sole purpose of interoperating with a Windows
Operating System Product, via the Microsoft Developer Network
("MSDN") or successor developer program (if the MSDN
program is discontinued or replaced by a new developer program, but
such a program should be equally broadly available and equally non-
discriminatory as the MSDN program was on the earliest date the
proposed consent decree was filled with the Court by Microsoft and
the Plaintiffs), the APIs, related Documentation, Protocols, File
Formats, Data Formats, Certification/Validation Component Signatures
(and Microsoft shall not restraint or deny such signature facilities
or enablements, and any other technological mechanism that are used
by Microsoft Middleware, Microsoft Application, Microsoft Hardware
Products, or by newly introduced Microsoft Operating System features
(that are similar to existing facilities available from third
parties in the market) to intemperate with a Windows Operating
System Product. In the case of a any new version of Microsoft
Middleware or Microsoft Operating Systems, or Microsoft Application,
the disclosures required by this Section III.D shall occur no later
than the last major beta test release of that Microsoft Middleware.
In the case of a new version of a Windows Operating System Product,
the obligations imposed by this Section III.D shall occur in a
Timely Manner.
Comment III.16
Section III.E should be augmented where it reads "on
reasonable and non-discriminatory tcrms" to read "on
reasonable, non-discriminatory and non-royalty bearing terms."
The imposition of per unit royalties as a condition to grant access
to any Communication Protocol would allow Microsoft to exclude
competitors from the market.
Comment III.17
Section III.E reads:
"E. Starting nine months after the submission of this
proposed Final Judgment to the Court, Microsoft shall make available
for use by third parties, for the sole purpose of interoperating
with a Windows Operating System Product, on reasonable and
nondiscriminatory terms (consistent with Section III.I), any
Communications Protocol that is, on or after the date this Final
Judgment is submitted to the Court, (i) implemented in a Windows
Operating System Product installed on a client computer, and (ii)
used to interoperate natively (i.e., without the addition of
software code to the client operating system product) with a
Microsoft server operating system product."
There are many issues with this section:
1. Communication Protocols can be used for communication between
two or more personal computers running a Windows Operating System
Product installed on client computers. For example a client computer
can share a disk drive so that its file are accessed to other client
computers, such functionality doesn't require a Microsoft server
operating system product. The ability to interoperate natively
should not be
[[Page 28712]]
restricted to the Communication Protocols used to interoperate
natively with a Microsoft server operating system product, for
example a competing non-server client operating system might require
to implement these protocols to be competitive. For example, both
Apple's MacOS X client operating system and client versions of the
GNU/Linux operating systems contain incomplete implementations of
the file sharing protocols used by Windows Operating System ).
Section III.E shall apply equally to both client and server
operating systems to allow them interoperate natively with Windows
Operating System Products installed on client computers.
2. To circumvent the provisions in Section III.E Microsoft could
do this in future (major or minor) releases of its Personal Computer
Operating System Products: (a) do not include software that
implements future revisions of a Communications Protocol with the
Windows Operating System Product installed on a client computer; and
(b) request from the Microsoft server operating system product the
software that the client requies at first boot, each boot, or at
under other circumstances. Thus Microsoft would have circumvented
the requirements stated in Section III.E because there would be
"addition of software code to the client operating system
product" (which Section III.E.ii requires that it be
"without the addition of software code to the client operating
system product"). By Microsoft implementing a new protocol
(which it would not have trouble documenting to 3rd parties) that
the client computer's Windows Operating System Product would use to
request these addional software codes from a Microsoft server
operating system product the circumvention would have been achieved.
Thus by removing the existing components that implement existing
Communications Protocols all kinds of Communications Protocols would
thus be allowed to remain undocument in future releases of a Windows
Operating System Product by Microsoft, thus denying the purpose of
allowing native interoperability between other operating systems and
Windows Operating System Products. Microsoft, through privave key
signin and public key signature validation, Microsoft would be able
to sign these software components to ensure their origins
(Microsoft) and that they have not ben tampered, thus allowing every
Communications Protocols to remain undocumented, including security
protocols, filesystem protocols, transaction management protocols,
etc. The intent of Section III.E is good because it is pro-
competitive, but the actual terms easily allow Microsoft to
circumvent that intent. Software is very maleable, terms used to
describe it, such as: "without the addition of software
code" are easily circumvented, for example by slicing the
software and requiting thatthere be "addition of software
code", this can be done easily and transparently (i.e. without
knowledge by end user).
3. The word "implemented" is also used to describe
the software, and can lead to arguments or circumvention from
Microsof with respect to meaning.
4. The description of what is being made available is ambiguous.
Instead of "Microsoft shall make available .... any
Communications Protocol", it should be stated clearly what is
being made available. A description of what should be made available
is shown in the proposed revision to Section III.E below.
Section III.E should be replaced with:
E. Starting nine months after the submission of this proposed
Final Judgment to the Court, Microsoft shall make available for use
by third parties, for the sole purpose of interoperating with a
Windows Operating System Product, on reasonable (without an up front
fee and royalty free) and non-discriminatory terms (consistent with
Section III.I), technical implementations for any Communications
Protocol that is, on or after the date this Final Judgment is
submitted to the Court, utilized by a Windows Operating System
Product nstalled on a client computer to interoperate with (i) a
Microsoft server operating system product, or (ii) a Windows
Operating System Product. The means through which any such
Communications Protocol shall be made available shall include:
(a) a non-fee based and non-royalty based patent license to any
and all patents required by an implementation of fully featured,
high performance, and interoperable client or server operating
system product components that implement the Communication Protocols
in question. The patent license can be limited to be for the sole
purpose of interoperating with Windows Operating System Products
installed on a client computers; and
(b) a non-fee based and non-royalty based license to implement
the Communications Protocol in client and server operating system
product components that are fully featured, high performance, and
interoperable with Windows Operating System Products installed on a
client computers. The protocol license can be limited to be for the
sole purpose of interoperating with Windows Operating System
Products installed on a client computers; and
(c) a technical discussion forum (mail list, newsgroup or web
site) through which Microsoft will provide in a nondiscriminatory
basis non-fee based technical support to ISVs that require support
related to the Communications Protocol. Microsoft shall make its
best efforts to provide such technical support. Microsoft shall
provide subject to the Communication Protocol license the
Communications Protocol specifications which shall be:
(d) the precise and complete set of specifications of the
Communication Protocols (and their predecessors), such that based on
it a competent third party software developper would be capable of
implementing fully featured, high performance, and interoperable
operating system product components that implement the Communication
Protocols in question (without the need to perform any reverse
engineering of any kind); or In the abscence of such a precise and
complete set of specifications as described in Section III.E.a
(above), or at Microsoft's choosing or by direction of the
Technicall Committee, Microsoft shall provide instead:
(e) any and all specifications that Microsoft has of the
Communication Protocols (and their predecessors); and the complete
source code and build procedures of all the relevant client side
components and implementations (for each Microsoft Windows Operating
System Product) of the Communications Protocol in a form that these
components can be compiled (i.e. translated from source code form
into binary form) and linked (translated from object form into a
binary executable form) by the third party to produce the exact same
binaries of the native components in the Windows Operating System
Product that implement the Communication Protocols. The license
under which these component's source codes and build procedures
would be provided to the third party would be only for reference and
use only within the third parties premises for the sole purpose of
implementing fully featured, high performance, and interoperable
operating system product components that implement the
Communications Protocol in question. No redistribution rights of any
kind (in binary or source form) are required to be given to the
third party.
Additionally:
(f) Microsoft shall continuously and proactively provide updates
to the third party such that the third party can continue to
implement fully featured, high performance, and interoperable
operating system product components that implement the Communication
Protocols in question as the corresponding Microsoft Windows
Operating System Products implement new patents, versions or
features of the Communications Protocol. These updates should be
provided irrespective of how major or minor is the Microsoft Windows
Operating System Product update that makes use of the Communications
Protocol changes or patents. Microsoft shall provide these through
addendums:
(i) to the licenses described in Sections III.E.a and III.E.b to
cover new patents or protocol revisions or versions as appropriate;
and
(ii) the specifications and implementations described or
provided in Sections III.E.d and III.E.e as appropriate
Comment III.18
Section III.F.1.a reads:
"a. developing, using, distributing, promoting or
supporting any software that competes with Microsoft Platform
Software or any software that runs on any software that competes
with Microsoft Platform Software, or" Microsoft has shown that
it retaliates against OEMs when they support now-Microsoft software
in general, not just Microsoft Platform Software, for example the
retaliation against IBM because of IBM's intent to bundle SmartSuite
with their Personal Computers as can be seen in the Findings of
Fact.
Section III.F.1.a should be expanded to read:
a. developing, using, distributing, promoting or supporting any
software that competes with Microsoft Platform Software, Microsoft
Operating Systems, Microsoft Application Software, Microsoft
Hardware or any other Microsoft supported technologies or any
software that runs on any software
[[Page 28713]]
that competes with Microsoft Platform Software, Microsoft Operatin
Systems, Microsoft Application Software, Microsoft Hardware or any
other Microsoft supported technologies; or
Comment III.19
Section III.F.2 reads:
"2. Microsoft shall not enter into any agreement relating
to a Windows Operating System Product that conditions the grant of
any Consideration on an ISV's refraining from developing, using,
distributing, or promoting any software that competes with Microsoft
Platform Software or any software that runs on any software that
competes with Microsoft Platform Software, except that Microsoft may
enter into agreements that place limitations on an ISV's
development, use, distribution or promotion of any such software if
those limitations are reasonably necessary to and of reasonable
scope and duration in relation to a bona fide contractual obligation
of the ISV to use, distribute or promote any Microsoft software or
to develop software for, or in conjunction with, Microsoft."
Issues:
1. Again, Microsoft retaliates against OEMs (IBM) to product
Microsoft products other than its Operating Systems.
2. Allowing Microsoft to enter into agreements that "place
any limitations on ISV's development, use, distribution or promotion
of any such software" is an open ended means under which
Microsoft can cause ISV's to act in manners that Microsoft desires.
For example, Microsoft might extend the MSDN agreements with limited
sublicensing of Microsoft patent pools and extract in exchange
agreements from all 1SVs in the market to limit their development,
use, distribution or promotion of any other software. The litigation
to ensure that those limitations are not "reasonably necessary
to and of reasonable scope" would probably take another 4
years of litigation. The Plaintiffs must remember that one of
Microsoft's options at any time is to relly on the ambiguities of
these terms and use them to realize their means, given that it has
been shown that Microsoft has monopoly power int he x86 compatible
Personal Computer market its retaliatory means must be reduced as
much as possible.
Section III.F.2 should read:
2. Microsoft shall not enter into any agreement relating to a
Windows Operating System Product, Microsoft Application Software,
Microsoft Hardware or any other Microsoft supported technologies,
that conditions the grant of any Consideration on an ISV's
refraining from developing, using, distributing, or promoting any
software that competes with Microsoft Platform Software, Microsoft
Operatin Systems, Microsoft Application Software, Microsoft Hardware
or any other Microsoft supported technologies or any software that
runs on any software that competes with Microsoft Platform Software.
Microsoft may not enter into any agreements that place limitations
on an ISV's development, use, distribution or promotion of any such
software for any reason.
Microsoft has more than enough resources to all the software
development that it requires, if it has to felly on outside parties
to do software development, it must do so without placing
limitations.
Comment III.20
Section III.G.1 reads:
"G. Microsoft shall not enter into any agreement with:
1. any IAP, ICP, ISV, IHV or OEM that grants Consideration on
the condition that such entity distributes, promotes, uses, or
supports, exclusively or in a fixed percentage, any Microsoft
Platform Software, except that Microsoft may enter into agreements
in which such an entity agrees to distribute, promote, use or
support Microsoft Platform Software in a fixed percentage whenever
Microsoft in good faith obtains a representation that it is
commercially practicable for the entity to provide equal or greater
distribution, promotion, use or support for software that competes
with Microsoft Platform Software, or"
These are the issues:
1. The text: "except that Microsoft may enter into
agreements in which such an entity agrees to distribute, promote,
use or support Microsoft Platform Software in a fixed percentage
whenever Microsoft in good faith obtains a representation that it is
commercially practicable for the entity to provide equal or greater
distribution, promotion, use or support for software that competes
with Microsoft Platform Software" allows Microsoft to extract
agreements from these parties under which at least, by assuring
itself of a 50% distribution, promotion or usage share it guarantees
that no competitors technology can be bradly available on a large
fraction of Personal Computers so that it can become a platform for
cross-platform software. For example by ensuring that 50% of new
Personal Computers don't include such software, Microsoft can ensure
that such software doesn't obtain critical mass as a platform.
2. These kinds of allowances, given Microsoft's behavior, only
serve to codify Microsoft's right to extinguish competition. It
codifies the right and means through which Microsoft can cut other
parties "air supply".
3. By restricting these terms to "Microsoft Platform
Software" it allows Microsoft to enter other kinds of
agreements in which the means to kill innovation and drive others
off the market is by developping non-Platform Software, for example
by developping Applications, giving them for free and forcing these
parties to distribute them at 50% usage share. The whole exception
should be removed and Section III.G.1 should read: G. Microsoft
shall not enter into any agreement with:
1. any IAP, ICP, ISV, IHV or OEM that grants Consideration on
the condition that such entity distributes, promotes, uses, or
supports, exclusively or in a fixed percentage, any Microsoft
Platform Software, Microsoft Operatin Systems, Microsoft Application
Software, Microsoft Hardware or any other Microsoft supported
technologies, or Furthermore, the agreement that Microsoft might
enter might require that the OEM doesn't distribute certain non-
Microsoft Sofware without actually requiring the distribution of
Microsoft technologies. Thus a new clause should be added, Section
III.G.3:
3. any IAP, ICP, ISV, IHV or OEM that grants Consideration on
the condition that such entity refrains in any way or percentage
from distributing, promoting, using, or supporting, any non-
Microsoft software or technologies
Comment III.21
Section III.G.2 reads:
"G. Microsoft shall not enter into any agreement with:
2. any LAP or ICP that grants placement on the desktop or
elsewhere in any Windows Operating System Product to that IAP or ICP
on the condition that the IAP or ICP refrain from distributing,
promoting or using any software that competes with Microsoft
Middleware." Again the restriction is too narrow with respect
to Microsoft's other means of distributing software, it should read:
2. any LAP or ICP that grants placement on the desktop or
elsewhere in any Windows Operating System Product to that IAP or ICP
on the condition that the IAP or ICP refrain from distributing,
promoting or using any software that competes with Microsoft
Middleware, Microsoft Platform Software, Microsoft Operatin Systems,
Microsoft Application Software, Microsoft Hardware or any other
Microsoft supported technologies
Comment III.22
Section III.G contains this, it is the second to last paragraph
in the section: "Nothing in this section shall prohibit
Microsoft from entering into (a) any bona fide joint venture or (b)
any joint development or joint services arrangement with any ISV,
IHV, IAP, ICP, or OEM for a new product, technology or service, or
any material value-add to an existing product, technology or
service, in which both Microsoft and the ISV, IHV, IAP, ICP, or OEM
contribute significant developer or other resources, that prohibits
such entity from competing with the object of the joint venture or
other arrangement for a reasonable period of time." Microsoft
should be allowed to enter into these arrangements, but it should be
allowed to require it to "prohibits such entity from competing
with the object of the joint venture or other arrangement for a
reasonable period of time.". Again, "reasonable period
of time" is ambiguous and open ended, and non-compete clauses
have no pro-competive role other than exclusionary when included in
agreements by a Monopolist such as Microsoft. Joint development or
joint services agreements should not be restricted in this manner.
If an actual separate entity is formed, a joint venture that
includes the incorporation or foundation of a separate independent
legal entity, the entity in question could have non-competition
restrictions placed on it, but not the shareholder companies
themselves (i.e. Microsoft and the other party).
Comment III.23
Section III.G, last paragraph, reads:
This Section does not apply to any agreements in which Microsoft
licenses intellectual property in from a third party. This
statement, is very ambiguous and unqualified. The meaning of
"Microsoft licenses intellectual property in from a third
party" could easily mean that Microsoft products that include
any third party intellectual propery are exempt from the
[[Page 28714]]
section. Most Microsoft products contain third party software,
certainly its operating systems do (for example the Vcritas/Seagate
backup software and the Veritas Volume Manager included in both
Windows XP and Windows 2000; the BSD software included in Windows
2000 and Windows XP; the Mosaic sofware included in all version of
Internet Explorer; the Java software included in Windows 2000 and
Windows XP; the printing drivers and other device drivers from IHVs
included in Windows 2000 and Windows XP; the amount of software
licensed into these products is very large; etc). Additionally,
there can also be other forms of intellectual licenses that apply to
these and other products (for example licenses to use patents of
third parties). If the clause is intended to mean something
different from my interpretation, please explain what it is intended
to mean, and what terms in that sentence ensures that only that
meaning is allowed.
This sentence should be removed completely from this section.
Alternatively, a sentence that says:
Where terms in this section would cause a third party who has
licensed software or any other form of intellectual property to
Microsoft to have its license agreement violated then the specific
terms in this section that would cause such a license breach do not
apply. Unless the third party, at its own discrtion, chooses to
allow the specific violations under an agreement amendment.
Violation of the license agreement means violation to the detriment
of the interest of the third party and not violation to the
detriment of Microsoft's interests. Additionally, Microsoft should
proactively inform the Microsoft Internal Compliance Officer, the
Technical Committee, and the Plaintiffs about the circumstances in
question and provide, as priviledged communication and without
violating the interests of the third party, all information required
for their enforcement activities.
Comment III.24
Section III.H.2 (the first such section, there are two such
sections in Section III.H) reads:
"2. Allow end users (via a mechanism readily available
from the desktop or Start menu), OEMs (via standard OEM
preinstallation kits), and Non-Microsoft Middleware Products (via a
mechanism which may, at Microsoft's option, require confirmation
from the end user) to designate a Non-Microsoft Middleware Product
to be invoked in place of that Microsoft Middleware Product (or vice
versa) in any case where the Windows Operating System Product would
otherwise launch the Microsoft Middleware Product in a separate Top-
Level Window and display either (i) all of the user interface
elements or (ii) the Trademark of the Microsoft Middleware
Product."
These are the issues:
The text "require confirmation from the end user"
should include statements that ensure that Microsoft will not act in
a discriminatory or derrogatory manner in those confirmations. For
example, Microsoft should not be allowed to include as part of that
confirmation process: documentation, help, verbal communitation or
any other means discriminatory or derrogatory statements. Examples
of such statemetns are: "By choosing this option, Microsoft
voids the warranty of the product or disclaims its obligation to
provide support. Microsoft has not tested this third party option,
use at your own risk. Use of this option might cause data loss,
corruption, etc." Microsoft has included messages in their
products purposedly to cause third parties to not use non-Microsoft
technology. The Windows 3.0 betas included messages similar to these
when Windows realized that it was running on top of Digital
Research's DR-DOS Operating System (instead of running on top of
Microsoft's MS-DOS).
2. These statements: "launch the Microsoft Middleware
Product in a separate Top-Level Window and display either (i) all of
the user interface elements or (ii) the Trademark of the Microsoft
Middleware Product." allow for Microsoft to easily subvert the
intent by not Trademarking the Microsoft Middleware (while allowing
compound Trademarks suchs as "Windows (R) Stuff'), by only
showing all but one (1) of the user interface elements. The
restriction to a separate Top-Level Window means that by providing
it in a subwindow of an existing window on in a visually separate
top level window that is controlled by a Microsoft non-separate or
independent process, these escape clauses, again provide Microsoft
with a a myriad ways to escape the intent of the clause.
Additionally because of the software maleability the restriction to
only Microsot1 Middleware Products should not apply.
Section III.H.2 (the first such section, there are two such
sections in Section III.H) should read:
2. Allow end users (via a mechanism readily available from the
desktop or Start menu), OEMs (via standard OEM preinstallation
kits), and Non-Microsoft software and technologies (via a mechanism
which may, at Microsoft's option, require confirmation from the end
user in a non-discriminatory and non-derrogatory manner) to
designate a Non-Microsoft software or technologies to be invoked in
place of any Microsoft Middleware, Microsoft Application or any
Microsoft Operating System feature that existed in the market as a
third party product prior to Microsoft's incorpration of such a
feature into its Operating System (or vice versa) in any case where
the Windows Operating System Product would otherwise launch the
Microsoft Middleware Product, Microsoft Applications or any such
Microsoft Operating System.
Comment III.25
Section III.H.3 allows for "(b) seek such confirmation
from the end user for an automatic (as opposed to user-initiated)
alteration of the OEM's configuration until 14 days after the
initial boot up of a new Personal Computer". Such confirmation
must be sought through non-discriminatory and non-derrogatory means
(as outlined in Comment III.23). Additionally such confirmation from
the end user must allow the user to reject the continued request for
this confirmation by providing an easily visible checkbox that
indicates: "would you like to be asked this question again in
the future?" if the user doesn't want this question to be
asked in the future it selects the checkbox and the question is
never asked again (and the current settings remain unchanged).
Comment III.26
Section III.H.3.2 (the second such section, there are two such
sections in Section III.H) reads:
"2. that designated Non-Microsoft Middleware Product fails
to implement a reasonable technical requirement (e.g., a requirement
to be able to host a particular ActiveX control) that is necessary
for valid technical reasons to supply the end user with
functionality consistent with a Windows Operating System Product,
provided that the technical reasons are described in a reasonably
prompt manner to any ISV that requests them."
Issues:
1. The "designated Non-Microsoft Middleware Product"
term should be "designated Non-Microsoft software or
technology".
2. Requirements to host a paricular ActiveX control must require
that Microsoft proactively documents the interfaces of the
particular Active) control, and doesn't prevent through signature or
any other mechanism such hosting by the Non-Micorosft software or
technology.
3. The "provided that the technical reasons are described
in a reasonably prompt manner to any ISV that requests them"
text shold read "Microsoft must pro-actively and broadly
(through the MSDN program and web sites) describe the technical
reasons reasonable manner." Any such "valid technical
reasons" must be communicated to the Technical Committee, the
Microsoft Internal Compliance Officer and the Plaintiffs.
Section III.H.3.2 (the second such section, there are two such
sections in Section III.H) should read:
"2. that designated Non-Microsoft software or technology
fails to implement a reasonable technical requirement (e.g., a
requirement to be able to host a particular ActiveX control) that is
necessary for valid technical reasons to supply the end user with
functionality consistent with a Windows Operating System Product,
provided that the technical reasons and detailed and complete
technical documentation and mechanisms (component signatures) are
described in a reasonably prompt manner to all ISVs through the MSDN
program or its successor. Addionally the valid technical reasons and
any other information relevant to the reasons must be communicated
to the Technical Committee, the Microsoft Internal Compliance
Officer, the Plaintiffs and the ISVs in question."
Comment III.27
The last paragraph of Section III.H.3 reads:
"Microsoft's obligations under this Section III.H as to
any new Windows Operating System Product shall be determined based
on the Microsoft Middleware Products which exist seven months prior
to the last beta test version (i.e., the one immediately preceding
the first release candidate) of that Windows Operating System
Product." Issues:
1. Again this is tied to Microsoft Middleware Prodcuts, it
should be replaced by the broader term.
[[Page 28715]]
2. When a technology "exists" can lead to ambiguity
given that Microsoft might dictate that technology doesn't exist
until it determines (at its sole discretion) that it exists. This
ambiguity is not required.
The last paragraph of Section III.H.3 should be removed
completely. Microsoft can introduce new Microsoft Middleware,
Microsoft Applications, Microsoft Technologies, Microsoft Hardware
at any arbitrary point in time after the release of an Operating
System product. In so far as those Microsoft technologies alter
user's preferences and default system settings, saving and restoring
those settings sould be supported through an Operating System
mechanism and user interface that allows for these settings to be
manipulated.
Comment III.28
The first paragraphs of Section III.I reads:
"I. Microsoft shall offer to license to ISVs, IHVs, IAPs,
ICPs, and OEMs any intellectual property rights owned or licensable
by Microsoft that are required to exercise any of the options or
alternatives expressly provided to them under this Final Judgment,
provided that" The text "shall offer to license"
requires that licensing be offered, it doesn't require that it
actually enter into such license agreements. The text should instead
read:
I. Microsoft shall offer to license, and shall make its best
effort to actually license, to ISVs, IHVs, IAPs, ICPs, and OEMs any
intellectual property rights owned or licensable by Microsoft that
are required to exercise any of the options or alternatives
expressly provided to them under this Final Judgment, provided that
Comment III.29
Section III.I.1 reads:
"1. all terms, including royalties or other payment of
monetary consideration, are reasonable and non-
discriminatory;" Allowing for per unit royalties or
prohibitive up front licensing fees might prevent Microsoft
competitors from actually being able to participate competitibly in
the relevant product markets. This Section III.I.1 should read
instead: "1. all terms, are reasonable and non-discriminatory.
Royalties or other payments of monetary consideration are explicitly
forbidden from the temps when the intellectual property is to be
used only for interoperation with a Microsoft Operating System
product." For example such a license would not require
royalties from a server Operating System to interoperate with a
Microsoft Operating System for Personal Computers, but if the server
Operating System makes use of the licensed intellectual property to
interoperate with non-Microsoft Operating Systems for Personal
Computers, then a royalty might be required by Microsoft.
Comment III.30
Section III.I.2 reads:
"2. the scope of any such license (and the intellectual
property rights licensed thereunder) need be no broader than is
necessary to ensure that an ISV, IHV, IAP, ICP or OEM is able to
exercise the options or alternatives expressly provided under this
Final Judgment (e.g., an ISV's, IHV's, IAP's, ICP's and OEM's option
to promote Non-Microsoft Middleware shall not confer any rights to
any Microsoft intellectual property rights infringed by that Non-
Microsoft Middleware);" XXX
Comment III.31
Section III.I.3 reads:
"an ISV's, IHV's, IAP's, ICP's, or OEM's rights may be
conditioned on its not assigning, transferring or sublicensing its
rights under any license granted under this provision;" Not
allowing the transferring or assignment of these parties rights
under certain circumstances, for example under an acquisition, is
inherently a form of discrimination. Given that the licenses are to
be offered in a non-discriminatory fashion, it is important that
such licenses once offered be available in the future and that the
licensing not be restricted to a given period of time. If subsequent
versions of technology become available, and new licenses are
developped for that technology, the older licenses to the earlier
technology should continue to be offered for the earlier verisions
of the technology.
Comment III.32
The paragraphs immediately after Section III.I.5 reads:
"Beyond the express terms of any license granted by Microsoft
pursuant to this section, this Final Judgment does not, directly or
by implication, estoppel or otherwise, confer any rights, licenses,
covenants or immunities with regard to any Microsoft intellectual
property to anyone."
Comment III.33
Section III.J.2.b reads:
"that the licensee:
(b) has a reasonable business need for the API, Documentation or
Communications Protocol for a planned or shipping product,"
Microsoft shall not unreasonably dispute the licensee's
assertions with respect to III.J.2.b, any individual member of the
Technical Committee through direct communication with the
prospective licensee can make a positive determination about the
III.J.2.b requirement and inform Microsoft about its determination
without any further Microsoft argument, dispute or delay about the
prospective licensee meeting the III.J.2.b requirement (Court
intervention shall not be required).
Section III.J.2.b should read:
(b) has a reasonable business need (as promptly and in a non-
discriminating manner determined by Microsoft or any one individual
member of the Technical Committee), for the API, Documentation or
Communications Protocol for a planned or shipping product
Comment III.33
Section III.J.2.b reads:
"that the licensee:
(c) meets reasonable, objective standards established by
Microsoft for certifying the authenticity and viability of its
business" It should instead read: (c) meets reasonable,
objective and non-discriminatory standards (proposed by Microsoft
and promptly approved by the Technical Committe in consultation with
the Plaintiffs) for certifying the authenticity and viability of its
business, the actual determination of the actual authenticity and
viability of the business can be made by Microsoft or any one member
of the Technical Committee after taking into consideration legal
consultation from the Technical Committee's legal staff
Comment III.34
Section J.2.d reads:
"that the licensee:
(d) agrees to submit, at its own expense, any computer program
using such APIs, Documentation or Communication Protocols to third-
party verification, approved by Microsoft, to test for and ensure
verification and compliance with Microsoft specifications for use of
the API or interface, which specifications shall be related to
proper operation and integrity of the systems and mechanisms
identified in this paragraph."
The issues are:
1. Should be at Microsoft's expense, not the licensee's.
2. Verification should hot be performed by "third-party
verification, approved by Microsoft" if such verification is
required by Microsoft it should be done under staff hired by the
Technical Committee and at Microsoft's expense and not through
unknown for profit relationships and agreements between a third
party and Microsoft. The intent of this section is for "proper
operation and integrity of the systems and mechanisms",
Microsoft should be satisfied with the Technical Committee staff
performing these duties unless its goals are other than those
expressed herein.
3. The text "to test for and ensure verification and
compliance with Microsoft specifications for use of the API or
interface, which specifications shall be related to proper operation
and integrity of the systems and mechanisms identified in this
paragraph" refers to to a "Microsoft specifications for
use of the API or interface", these specifications shall be
made available to the licensee
Section J.2.d should read:
(d) agrees to submit, at Microsoft's expense, any computer
program using such APIs, Documentation or Communication Protocols to
the Technical Committe for verification, to test for and ensure
verification and compliance with Microsoft specifications (which
Microsoft shall make available to the licensee) for use of the API
or interface, which specifications shall be related to proper
operation and integrity of the systems and mechanisms identified in
this paragraph.
Comment IV.1 Section IV.A.2.a reads:
"a. Access during normal office hours to inspect any and
all source code, books, ledgers, accounts, correspondence, memoranda
and other documents and records in the possession, custody, or
control of Microsoft, which may have counsel present, regarding any
matters contained in this Final Judgment."
This should be expanded to include electronic forms of
communication in electronic form, not printed form, because it is
extremely hard to sift through information, such as source code, in
non-electronic form.
Section IV.A.2.a should read:
a. Access during normal office hours to inspect any and all
source code, source code control systems, bug or defect databases,
design documents, build procedures, binary codes, books, ledgers,
electronic ledgers, electronic databases, accounts, correspondence,
memoranda, newsgroups, discussions forums, web sites and other
[[Page 28716]]
documents and records in the possession, custody, or control of
Microsoft, which may have counsel present, regarding any matters
contained in this Final Judgment. Access to electronic forms of
information shall be provided in electronic form and not in only in
printed form.
Comment IV.2
Section IV.B.2 describes "The TC members shall be experts
in software design and programming." section IV.B.2.c reads:
"c. shall perform any other work for Microsoft or any
competitor of Microsoft for two years after the expiration of the
term of his or her service on the TC."
Given that Microsoft competes in almost every software market
conceivable, it is a strecth to request two years of non-compete
agreement from the TC member. Two such years of non-compete could be
provided only if Microsoft provides two such years of salary to the
TC member with a yearly inflationary bonus adjustment per year.
Comment IV.3
Section IV.B.8.iii reads:
"(iii) obtain reasonable access to any systems or
equipment to which Microsoft personnel have access;"
This should reads:
(iii) obtain reasonable access to any systems, services or
equipment to which Microsoft personnel have access; services should
include but not be limited to: authentication, file sharing,
discussion forums, newsgroups, chat channels, source code control
systems, bug/defect database systems, design management systems,
document repositories, web sites, etc.
Comment IV.4
Section IV.D.4.d reads:
"d. No work product, findings or recommendations by the TC
may be admitted in any enforcement proceeding before the Court for
any purpose, and no member of the TC shall testify by deposition, in
court or before any other tribunal regarding any matter related to
this Final Judgment."
This is one of the most egregious terms of the settlement. Given
that the Technical Committee has hardly any actual enforcement
duties, other than monitoring, and the Technical Committee actually
being an impartial participant in the actual history of Microsoft's
interaction with third parties and Microsoft's possible violations
of settlement terms, it is astonishing that this term mandates that
the actual work product of the Technical Committee not be admissible
as evidence of the settlement enforment activities.
Microsoft deifnitely over-reached by requesting this, this shows
Microsoft's true intentions (another 5 years without actual
enforcement plus maybe another 5 of further litigation), Microsoft
should be forced to accept instead the contrary of this term.
It is an interesting legal question if any documents related to
presummed antitrust violations are made the work product of the
Technical Committee, then by IV.D.4.d and those documents being
unadmissible, then what other documents could be used to initiate
Court proceedings by the plaintiffs without any such documents being
alleged by Microsoft as being derived from the TC's unadmissible
work. How could the plaintiffs promptly produce equivalent analysis
without it being under this gag order?
Section IV.D.4.d must read:
"d. All work product, findings or recommendations by the
TC must be admitted in any enforcement proceeding before the Court
for any purpose, and any member of the TC is herein explicitly
allowed to testify by deposition, in court or before any other
tribunal regarding any matter related to this Final Judgment."
If the Plaintiffs are not willing to mandate this rewritten
IV.D.4.d they are engaging in blatant dereliction of duty of the
antitrust enforcement offices and duties that they purport to serve.
Comment IV.5
Section IV.D.4.e reads:
"e. The TC may preserve the anonymity of any third party
complainant where it deems it appropriate to do so upon the request
of the Plaintiffs or the third party, or in its discretion."
It should read instead:
"e. The TC must preserve the anonymity of any third party
complainant upon the request of the Plaintiffs or the third party.
Where the TC deems it appropriate to do so, and it has not ben
requested, by the Plaintiffs or the third party, the TC in its own
discretion it may preserve the anonymity of any third party
complainant."
Comment V.1
Section V.A reads:
"A. Unless this Court grants an extension, this Final
Judgment will expire on the fifth anniversary of the date it is
entered by the Court."
The Final Judgement should last longer than five years. The
actual initial antritrust violations by Microsoft occured more than
five years ago and we are stiI1 without any form of remedy. The
legal system works very slowly. By entering this Final Judgement,
and Microsoft continuing its anticompetitive practices, it would
probably take more than five years to resolve those further
complaints. Given that the orignal D.O.J. vs Microsoft settlement
that related to per computer unit licensing was ambiguous enough
that it ended up being mostly ignored and full antritrust
proceedings were required, it wouldn't surprise me if this agreement
which is even more ambiguous and has many more loopholes means at
Microsoft's disposal to circumvent its intent would not result in
many more years of litigation without any real behaviour change on
Microsoft's part.
Mandating an expiration only after Microsoft no longer has
monopoly power in the market of Operating Systems for Personal
Computers for Intel x86 or x86 compatible systems is more
appropriate. Court proceedings or the under the parties agreement
and Court supervision would be required for the settlement to
expire, Otherwise a period longer than 5 years, at least 12 years
should be mandated.
It must be observed how durable has Microsoft's monopoly been
and that it was initially cemented through antitrust violations for
which a Final Judgement with no teeth got the industry into its
current state: 1.
Since the mid 80s it faced no competition. Through illegal
competitive behaviour, it foreclose the market to then Digital
Research's DR-DOS product (an atlernative to Microsoft's
MSDOS). Microsoft has recently settled a separate antitrus suit by
the current owner of the DRDOS assets (Caldera). These original
violations animated the first consent decreed between D.O.J. and
Microsoft 1995. That consent decree was determined to be ambiguous
by the appellate Court in its allowance of integration, and a full
antitrust lititgation ensued.
2. Even though Microsoft's technology significantly lagged
behind the technical abilities of the systems (for example it took
Microsoft 10 years to produce a quasi 32 bit operating system after
x86 Intel 32 bit capable operating systems became available in the
market) no other competitors could enter the market because
Microsoft moved from per-unit licenses to persystem licenses for
each model of system that the OEM manufactured (and this continued
to exclude other vendors from the market). 3. The one significant
threat that Microsoft has faced to its personal computer operating
system monopoly has been the advent of the Internet with open
standards and as a means for delivering applications from server
computers (either through Java or directly as web applications) or
through middleware based applications that could perform on
Microsoft Operating System based personal computers or personal
computers running other operating systems. This one threat has been
completely erradicated from the market. Microsoft will continue to
exclude Java as a viable Interact based application delivery
mechanisms, because this Final Judgement doesn't mandata the
allowance of interoperability of Sun's Java with Microsoft's
Internet Explorer (the Top Level Window definition is purposedly
design to make this impossible). Dereliction of duty now from the
Plaintiffs would mean that even under the most blatant violations of
antritrust laws and astonishing findings of fact, that Microsoft
would escape with a Final Judgement that is too short and very weak
from many perspectives. 12 years of enforcement seem the minimal
time for market conditions to actually have another opportunity to
arise and for actual market change to actually occur.
Comment V.2
Section V.B reads:
"B. In any enforcement proceeding in which the Court has
found that Microsoft has engaged in a pattern of willful and
systematic violations, the Plaintiffs may apply to the Court for a
one-time extension of this Final Judgment of up to two years,
together with such other relief as the Court may deem
appropriate."
The Plaintiffs in any enforcement proceeding shall not be
limited to only one extension of two years. If the Plaintiffs cannot
request as a remedy to future Microsoft's violations of this
settlement, then it is not clear if the Court can actually mandate a
remedy that is not being requested. Additionally, limiting the
length of the actual extension at this time and as part of this
settlement seems beyond belief given that any enforcement will
require the Court participation because there is no actual real
enforcement (other than monitoring by the Technical Committee with
its work
[[Page 28717]]
product later bein unadmissible as court evidence and without the TC
members being allowed as witnesses).
Section V.B should read:
B. In any enforcement proceeding in which the Court has found
that Microsoft has engaged in a pattern of willful and systematic
violations, the Plaintiffs may apply to the Court for an extension
of this Final Judgment for up to ten years, together with such other
relief as the Court may deem appropriate, which is hereby agreed by
the parties that it is acceptable for it to be of any length as the
Court deems appropriate.
Comment VI.1
Definition VI.A reads;
"A. "Application Programming Interfaces
(APIs)" means the interfaces, including any associated
callback interfaces, that Microsoft Middleware running on a Windows
Operating System Product uses to call upon that Windows Operating
System Product in order to obtain any services from that Windows
Operating System Product."
Issues are:
API refers to the interfaces that are used not only by Microsoft
Middleware uses, but any other software uses. APIs are mostly used
by regular applications, narrowing the definition of APIs to what
Microsoft Middleware uses is a contorted way to allow even more
freedoms of circumvention to Microsoft. For example for Microsoft to
perform anti-competitive practices through undocumented interfaces
that its applications use, but that Microsoft's Middleware doesn't
use, thus excluding those APIs (by definition!) from being covered
by this settlement. Amazingly, this definition proposed to define
API to mean something other than Application Programmin Interface,
do you see the word application? It is not Middleware Programming
Interface! Simply amazing!
Definition VI.A should be replaced by the definition in the
Final Judgement entered by Judge Jackson (definition 7.b):
A. "Application Programming Interfaces (APIs)" means
the interfaces, service provider interfaces, and protocols that
enable a hardware device or an application, Middleware, or server
Operating System to obtain services from (or provide services in
response to requests from) Platform Software in a Personal Computer
and to use, benefit from, and rely on the resources, facilities, and
capabilities of such Platform Software.
If another definition is adopted, it should be explained why it
is different from the one proposed.
Comment VI.2
Definition VI.B reads:
"B. "Communications Protocol" means the set of
rules for information exchange to accomplish predefined tasks
between a Windows Operating System Product and a server operating
system product connected via a network, including, but not limited
to, a local area network, a wide area network or the Internet. These
rules govern the format, semantics, timing, sequencing, and error
control of messages exchanged over a network."
Issues:
1. Given that Communication Protocols relevant to this
settlement (given the proposed changes in other sections) also exist
between two personal computers, the definition should reflect that.
2. The set of tasks between the parties in a protocol doesn't
have to be predefined, there are protocols under which the parties
actually sent pieces of arbitrary code to each other to perform
actions that are arbitrary.
Definition VI.B should read:
"B. "Communications Protocol" means the set of
rules for information exchange to accomplish tasks between a Windows
Operating System Product and another operating system connected via
a network, including, but not limited to, a local area network, a
wide area network or the Internet. These rules govern the format,
semantics, timing, sequencing, and error control of messages
exchanged over a network."
Comment VI.3
Definition VI.J reads:
"J. "Microsoft Middleware" means software code
that
1. Microsoft distributes separately from a Windows Operating
System Product to update that Windows Operating System Product; 2.
is Trademarked;
3. provides the same or substantially similar functionality as a
Microsoft Middleware Product; and
4. includes at least the software code that controls most or all
of the user interface elements of that Microsoft Middleware.
Software code described as part of, and distributed separately
to update, a Microsoft Middleware Product shall not be deemed
Microsoft Middleware unless identified as a new major version of
that Microsoft Middleware Product. A major version shall be
identified by a whole number or by a number with just a single digit
to the right of the decimal point."
This is a very astonishing definition of Middleware, nowhere
does it talk about software that provides APIs to other software
components, which is core to any definition of Middleware. The
definition of Non-Microsoft Middleware (VI.M) does seem appropriate
to what Middleware is. Definition 7.q in Judge Jackson's Final
Judgement should be seen for a reasonable defintion of Middleware:
"'Middleware" means software that operates,
directly or through other software, between an Operating System and
another type of software (such as an application, a server Operating
System, or a database management system) by offering services via
APIs or Communications Interfaces to such other software, and could,
if ported to or interoperable with multiple Operating Systems,
enable software products written for that Middleware to be run on
multiple Operating System Products. Examples of Middleware within
the meaning of this Final Judgment include Internet browsers, e-mail
client software, multimedia viewing software, Office, and the Java
Virtual Machine. Examples of software that are not Middleware within
the meaning of this Final Judgment are disk compression and memory
management."
These notions in the VI.J "Microsoft Middleware"
definition are astonishing:
"2. is Trademarked;" other than to provide Microsoft
another escape clause, this term adds absolutely no value. With this
term as part of the definition, Microsoft can rename some component,
not use an earlier trademark name for it, and voila! it is no longer
Microsoft Middleware.
The notion of what Microsoft Middleware is certainly cannot be
tied to the version number given to it! Something is what it is
whatever the name used to refer to it. Something as arbitrary as a
version number and as easily maleable as a version number certainly
cannot be criteria to be used to determine what it is. Contract
writting 101 should certainly tech any lawyers about this. It is
interesting to pose these questions to the Plaintiffs:
What is the major version number of Office XP? What is the
version number of Internet Explorer. NET? What is the version number
of Outlook Express. NET? What is the version number of Windows XP,
Windows CE, Windows ME, Winodows 95 OSR2? Widonws 95? Microsoft
certainly can change interfaces, protocols, APIs, etc in a major,
minor, service pack, hot fix, or any other packaging of its
software. The names or version numbers of such software should not
be used to determine what is contained by them.
Both of these (VI.J.2 and VI.J last paragrpah) should be removed
from the definition. The term VI.J.4 seems to be there only for the
purpose of allowing Microsoft to slice and recombine its software in
such a way as to ensure that the user interface component be the one
called the "Microsoft Middleware" and not the components
that acutally perfrom the traditional Middleware functionality (see
Jacksons definition above) of providing APIs to other software. It
is very intereseting that Middleware is mostly not about user
interfaces but about providing interfaces to other applications,
applications that felly on the Middleware as a platform. Most
Midleware doesn't have a user interface, if it has one it is
incidental.
The term VI.J.4 should be removed.
After these adjustments, Defintion VI.J should just be:
J. "Microsoft Middleware" means software code that
1. Microsoft distributes separately from a Windows Operating
System Product to update that Windows Operating System Product; and
2. provides the same or substantially similar functionality as a
Microsoft Middleware Product; and
Comment VI.4
Definition VI.K reads:
"K. "Microsoft Middleware Product" means
1. the functionality provided by Interact Explorer, Microsoft's
Java Virtual Machine, Windows Media Player, Windows Messenger,
Outlook Express andtheir successors in a Windows Operating System
Product, and
2. for any functionality that is first licensed, distributed or
sold by Microsoft after the entry of this Final Judgment and that is
part of any Windows Operating System Product
a. Internet browsers, email client software, networked audio/
video client software, instant messaging software or
[[Page 28718]]
b. functionality provided by Microsoft software that
i. is, or in the year preceding the commercial release of any
new Windows Operating System Product was, distributed separately by
Microsoft (or by an entity acquired by Microsoft) from a Windows
Operating System Product;
ii. is similar to the functionality provided by a Non-Microsoft
Middleware Product: and iii. is Trademarked.
Functionality that Microsoft describes or markets as being part
of a Microsoft Middleware Product (such as a service pack, upgrade,
or bug fix for Internet Explorer), or that is a version of a
Microsoft Middleware Product (such as Internet Explorer 5.5), shall
be considered to be part of that Microsoft Middleware
Product."
The first issue with this definition is, what is the connection
between VL.K.2 and the presumably subordinate VI.K.2.a and VI.K.2.b?
The sentence under VI.K.2 seems incomplete, it should end in
something like:
"* * * and that is part of any Windows Operating
System Product, and is either:" Other issues are:
1. Throughout the trial Microsoft and depositions (but not
before litigation was brought into action) would not budge on its
pretense incomprehension of what an Internet Browser is. They would
only talk about browsing technologies but would react stupified to
the notion of Integer Browsers, particularly their own, when they
were referred to as "the browser product." It is amusing
and without any sign of legal thouroughness that the Plaintiffs have
come to agree with Microsoft to a definition that uses the term
"Internet browser" without actually providing a
definition for such a term anywhere in the proposed Final Judgement.
Not even what a Internet Browser is being agreed amongst the parties
in the dereliction of duty that this document embodies.
2. Given that this section includes other disputed terms such as
Internet Explorer, it sould seem to be important to include precise
definitions about what these actual terms mean. Maybe when the
Plaintiffs try to do this together with Microsoft they will realize
that only contorted definitions such as the ones for API, Microsoft
Middleware, Microsoft Middleware Product, etc. are arrived at.
3. Again software can be or stop from being a Microsoft
Middleware Product depending on whether it is trademarked or not
(which to no ones surprise is another contorted and unnatural
definition by itself).
4. VI.K.2.b.i refers to "distributed separately by
Microsoft from a Windows Operating System Product", that term
should be precisely defined to mean what it seems to mean, because
Microsoft having argued in court that a sandwich is part of Windows
if they soley dictate so, then they surely would say that any code
"is distributed as part of a Windows Operating System"
even if the code is sent to the end user m a CD-ROM inside a
sandwich not included in the Windows box, or more complexily and
seriously, if it is sent to the user's system through a the Windows
update process.
5. VI.K.2 seems to require that the functionality be "part
of any Windows Operating System Product" but immediately and
sub-ordinated to that clause it also says VI.K.2.b.i
"distributed separately by Microsoft from a Windows Operating
System Product" which seems to contradict the pre-requisite
governing condition (it has to be both part of and not part of?.),
that would be by necessity the empty set, because something cannot
be both part of something and not part of something; thus redering
the whole contorted VI.K definition sense-less.
06. The final paragraph on VI.K states that:
"Functionality that Microsoft describes or markets as
being part of a Microsoft Middleware Product (such as a service
pack, upgrade, or bug fix for Internet Explorer), or that is a
version of a Microsoft Middleware Product (such as Internet Explorer
5.5), shall be considered to be part of that Microsoft Middleware
Product."
as some form of saving grace for the grotesquely constructed
prior definition. Obviously, since the litigation started, Microsoft
has described everything as part of Windows, so one should not wait
standing for Microsoft to ever again market anything in their
anticompetitive campaigns as not being part of Windows.
Definition VI.K should be replaced by:
"K. "Microsoft Middleware Product" means
1. the functionality provided by Internet Explorer, Microsoft's
Java Virtual Machine, Windows Media Player, Windows Messenger,
Outlook Express and their successors in a Windows Operating System
Product, and
2. any functionality that is first licensed, distributed or sold
by Microsoft before, on, or after the entry of this Final Judgment
and that is later made part of any Windows Operating System Product,
this shold include but not be limited to: Internet browsers, email
client software, networked audio/video client software, instant
messaging software; or
3. functionality provided by Microsoft software that
i. is, or at any time preceding the commercial release of any
new Windows Operating System Product was, distributed separately by
Microsoft (or by an entity acquired by Microsoft) from a Windows
Operating System Product; or
ii. is similar to the functionality provided by a Non-Microsoft
Middleware Product Functionality that Microsoft describes or markets
as being part of a Microsoft Middleware Product (such as a service
pack. upgrade, or bug fix for Interact Explorer), or that is a
version of a Microsoft Middleware Product (such as Internet Explorer
5.5), shall be considered to be part of that Microsoft Middleware
Product."
Additionally, reasonable definitions of what these mean should
be included
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.