O P E N L A W : T H E M I C R O S O F T C A S E
UNITED STATES Home Syllabus Discussion Trial Archive MICROSOFT

From a seminar with
Larry Lessig
Jonathan Zittrain

An Openlaw Site

The Process
On Nov. 6, 2001, the Justice Department and 9 States Agreed to settlement. The remaining 9 states and District of Columbia continue to fight for a more severe remedy. Judge Kollar-Kotelly has put the case on two tracks:

Next steps toward settlement (Track 1):
After a March 6, 2002, Tunney Act Hearing, District Judge Kollar-Kotelly must determine whether entry of the final judgment is "in the public interest." See Prof. Einer Elhauge's "Soft on Microsoft and Dan Kegel's "On the Remedy Phase" site for analysis and critiques of the settlement.

Non-settling states (Track 2):
From March 11 through June 19, 2002, the non-settling states and Microsoft presented witnesses and argument. Transcripts and other materials are available from Microsoft's site and the National Association of Attorneys General.

Non-Setting States
Massachusetts and West Virginia have announced their intention to appeal the Nov. 1 judgment.

District Court Orders in U.S. v. Microsoft

Key Trial Documents

MS-DOJ Consent Decree, July 15, 1994

DOJ: Complaint, May 18, 1998
MS: Answer, July 28, 1998
Trial: Transcripts, Oct. 19 - June 23, 1999
DOJ: Proposed Findings of Fact, Sept. 10, 1999
MS: Proposed Findings of Fact, Sept. 10, 1999
Judge Jackson's Findings of Fact, Nov. 5, 1999
DOJ: Proposed Conclusions of Law, Dec. 6, 1999
MS: Proposed Conclusions of Law, Jan 17, 2000
Judge Jackson's Conclusions of Law, April 3, 2000
Remedy Phase
Memorandum and Order, (PDF), June 7, 2000
Final Judgment, (PDF), June 7, 2000
MS: Appeal Brief, November 27, 2000
DOJ: Response Brief, January 12, 2001
MS: Reply Brief, January 29, 2001
Oral Argument: Transcripts February 26-27, 2001

Opinion, (PDF), June 28, 2001

Proposed Settlement, Nov. 6, 2001

full document archive & trial archive

Judge Kollar-Kotelly Approves DOJ Settlement; Gives Non-Settling States the Same Terms, November 1, 2002

On Friday, November 1, 2002, United States District Court Judge Colleen Kollar-Kotelly issued Opinions in the Microsoft cases, approving with minor modifications the proposed settlement between Microsoft and the Federal Government and nine states, and issuing roughly the same judgment to the remaining nine states. The court provided this summary of its rulings.

Judge Denies Microsoft Motion to Dismiss Litigating States' Case, June 12, 2002

Non-Settling States and Microsoft Begin Remedies Proceedings, Witnesses, March 18, 2002

Government and Microsoft File Second Revised Proposed Final Judgment, February 27, 2002

U.S. Response to Public Comments, Feb. 27, 2002
Stipulation and Second Revised Proposed Final Judgment (redline), Feb. 27, 2002
U.S. Brief Supporting Settlement, Feb. 27, 2002
Microsoft Brief Supporting Settlement, Feb. 27, 2002
The full docket of papers and exhibits filed Feb. 27, 2002
Justice Department index of public comments submitted and Full linked index of comments

Court Rejects Non-Settling States' Motion to Strike Microsoft Witnesses, Updates Schedule, Feb. 27, 2002

Court Grants Media Access to Depositions, Feb. 24, 2002

Court Denies Advisory Opinion on Alternative Comment Publication Method, Feb. 20, 2002

Public Comments on Justice Department's Proposed Settlement, January 28, 2002

Under the Tunney Act, the Government is required to accept and respond to public comment, and to justify its proposed settlement as "in the public interest." Numerous individuals and organizations took the invitation, among them: News Reports:
Nobel Laureates Oppose Microsoft Settlement
Microsoft antitrust debate heats up - Tech News - CNET.com
Top economist critical of Microsoft settlement (1/28/2002)
Public sounds off on Microsoft antitrust settlement (1/28/2002)
'The People' Weigh In on MS Case

Netscape Files Antitrust Complaint Against Microsoft, January 22, 2002

Complaint (PDF) or HTML
News: 1/22 Reuters and Associated Press reports.
News: 1/23 AOL Sues Microsoft Over Tactics On Browser, Washington Post
News: 1/23 An AOL Unit Sues Microsoft, Saying Tactics Were Illegal, New York Times
Analysis: 1/23 In AOL's Suit Against Microsoft, the Key Word Is Access, New York Times

Court Rejects Proposed Settlement of Private Class Actions, January 11, 2002

Opinion and Order denying preliminary approval, January 11, 2002
District Judge J. Frederick Motz denied preliminary approval to Microsoft's proposal to settle numerous private class action lawsuits by creating a foundation that would donate computers and software (much of it Microsoft software) to impoverished schools, finding the proposal raised significant competitive concerns of its own. Some objectors had argued that the settlement would have amounted to "court-approved predatory pricing."
The MDL plaintiffs and Microsoft have filed a motion for preliminary approval of a proposed class settlement agreement into which they have entered. I have concluded, as a procedural matter, that I cannot presently determine the adequacy of the proposed settlement because the record has not been sufficiently developed on the question of the underlying value of the class claims. I have also concluded, as a substantive matter, that the record as it now exists demonstrates that the charitable foundation contemplated by the agreement is not sufficiently funded both to fulfill the eleemosynary purposes justifying a cy pres remedy and to assure that effectuation of the agreement would not have anti-competitive effects. Therefore, I will deny the motion for preliminary approval.
Reuters and Associated Press reports

Court Rejects Microsoft's Request for More Time on States' Challenge, January 7, 2002

Microsoft filed a brief and voluminous exhibits requesting a four-month extension of time to challenge the dissenting states on remedy proposals. The court ordered the states to respond. The states characterized the motion as yet another of Microsoft's delay tactics.

States' Response, Dec. 31, 2001
Microsoft's Reply, Dec. 31, 2001
Hearing scheduled January 7, 2002

Microsoft Responds to Dissenting States' Proposal, December 12, 2001

Microsoft rejected the states' proposed additions to its settlement with the Federal Government and other states.
Senate hearings at which experts were to have testified about the settlement were canceled mid-way through, but not before some Senators had expressed doubts about the proposed settlment's efficacy.

News: 12/13/01 Skepticism in Senate Panel Over Accord With Microsoft, NYT
News: 12/13/01 Microsoft, Hill Weigh In on Settlement, Washington Post

Dissenting States Propose Harsher Remedy, December 7, 2001

The nine states and District of Columbia that rejected Microsoft's settlement with the Justice Department have filed their own proposed final judgment with harsher sanctions against Microsoft. The states, California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah, West Virginia and the District of Columbia, would require the company to offer a stripped-down version of Windows at lower cost.

Plaintiff Litigating States' Remedial Proposals, December 7, 2001
Proposed Final Judgment, December 7, 2001

News: 12/7/01 States to Seek Tougher Curbs on Microsoft; Apple, Sun May Benefit From New Proposal Wall Street Journal
News: 12/7/01 States get tough in Microsoft case, CNet News.com

Microsoft offers Settlement with Private Plaintiffs, November 19, 2001

News: 11/25/01 Judge to Weigh Private Microsoft Antitrust Deal

Justice Department Files Competitive Impact Statement, November 15, 2001

As required by the Tunney Act, the government filed its competitive impact statement and requested public comment on its settlement with Microsoft.

News: 11/15/01 Microsoft Makes Offer to Holdouts, Washington Post

Justice Department and Nine States Settle with Microsoft, November 6, 2001

Op-Ed: 11/9/01 It's Still a Safe World for Microsoft, Lawrence Lessig, New York Times
News Analysis: 11/9/01 A Tenacious Microsoft Emerges From Suit With Its Software Monopoly Largely Intact, WSJ
News: 11/7/01 Microsoft Faces Two-Front Court Fight, AP

Justice Department and Microsoft to Present Settlment Proposal to Judge, November 2, 2001

Proposed Settlement, November 2, 2001
Justice Department Press Release, November 2, 2001

The Justice Department and Microsoft filed a proposed final judgment with District Judge Colleen Kollar-Kotelly Friday. The settlment proposes a five-year consent decree forcing Microsoft to disclose middleware programming interfaces (APIs), permit computer manufacturers to substitute non-Microsoft middleware products, and license software to OEMs on uniform, non-exclusive terms. The states have not yet endorsed the proposal, and could continue to pursue the suit or challenge the settlment under the Tunney Act.

News: 11/03/01 Antitrust Deal Is Called Big Victory for Microsoft, NYT
News: 11/02/01 Associated Press
News: 11/02/01 Reuters
News: 10/31/01 Sources Say Microsoft, Justice Department Near Settlement, AP
News: 10/31/01 Justice Department and Microsoft Agree on Most of Settlement Pact, NYT

Additional news links, November 2001

Court Names New Mediator, October 12, 2001

At the parties' recommendation, Judge Kollar-Kotelly named Boston University School of Law Professor Eric D. Green to mediate among Microsoft, the Justice Department, and the plaintiff states. The last mediation attempt, under Seventh Circuit Judge Richard Posner, ended in failure after four months.
News: 10/13/01 New Mediator Named in Microsoft Case

Supreme Court Denies Review, October 9, 2001

The Supreme Court denied Microsoft's request for a grant of certiorari, rejecting the company's argument that Judge Jackson's extrajudicial conduct had tainted the entire trial.
News: 10/09/01 Supreme Court denies MSFT appeal
News: 10/09/01 US high court rejects Microsoft antitrust appeal

U.S. and Microsoft file Joint Status Report, Sept. 20, 2001

The report was "joint" only in name, as the parties found little to agree on. Judge Colleen Kollar-Kotelly ordered the parties to discuss settlement, "meeting seven days a week and around the clock." If the parties have not reached agreement by October 12, Judge Kollar-Kotelly will appoint a mutually-agreed mediator.
Scheduling Order, September 28, 2001
Order, September 28, 2001

Microsoft Files Reply Brief in Support of Certiorari, Sept. 11, 2001

Government Drops Request for Breakup and Tying Claim, September 6, 2001

From the Justice Department Press Release: The Department of Justice's Antitrust Division today advised Microsoft that it will not seek a break-up of the company in remand proceedings before the U.S. District Court. It also informed the company that it does not intend to pursue further proceedings on the tying count of the original complaint. The Department said it is taking these steps in an effort to obtain prompt, effective and certain relief for consumers.
Collected News Reports, Sept. 7, 2001

Justice Department Asks Supreme Court Not to Take Case, August 31, 2001

United States Brief Opposing Certiorari (PDF)

New District Judge Assigned to Microsoft Case

On mandate from the D.C. Circuit, District Judge Colleen Kollar-Kotelly will hear the Microsoft case and determine the proper remedy for Microsoft's abuse of monopoly power.
New Judge Named in Microsoft Case, AP, August 24, 2001

Appeals Court Denies Stay of Mandate, Will Return Case to District Court August 24 (Order, 8/17/01)

Order Denying Stay of Mandate, 8/17/01
Microsoft's Reply Brief, 8/14/01
Appellees' Response to Microsoft's Motion for Stay of the Mandate Pending Petition for Writ of Certiorari, 8/10/01

Microsoft Appeals to Supreme Court (8/7/01)

Petition for Certiorari, 8/7/01
Motion for Stay of Mandate pending appeal, 8/7/01
Question Presented:
The district judge engaged in secret discussions with select reporters about the merits of this case beginning no later than September 1999 and continuing over the succeeding eight months. (A119-20) During that period, the district judge entered his findings of fact, followed by his conclusions of law, and then a remedial decree. (A120) The court of appeals held that (i) the district judge?s course of conduct flagrantly violated 28 U.S.C. 455(a) and the Code of Conduct for United States Judges (A118-19) and (ii) the district judge would have been immediately disqualified had he not concealed his misconduct by requiring the reporters to "embargo" their stories until after entry of judgment (A128). The court nevertheless disqualified the district judge "retroactive only to the imposition of the remedy" (A136), some eight months after the earliest known violation.

The question presented for review is:
Whether the court of appeals erred in not disqualifying the district judge as of the date of his earliest known violation of 28 U.S.C. 455(a) and the Code for Conduct of United States Judges, thus requiring that his findings of fact and conclusions of law be vacated.

News: Microsoft Appeals to Supreme Court, AP 8/7/01

Appeals Court Denies Rehearing and Immediate Mandate

Order (8/2/2001)

Kodak Joins Chorus of Windows XP Critics, (8/1/01)
Kodak charges Microsoft with blocking Kodak camera software in its new OS.

Court Order that Government respond (7/19/01)
Microsoft's Opposition to Plaintiffs' Motion for Immediate Issuance of the Mandate, (7/20/01)

Government Accepts Appellate Ruling, July 13, 2001

The Justice Department and 18 states agreed not to appeal the D.C. Circuit's ruling, as they moved for rapid appointment of a district judge to impose a remedy. New Mexico settled with Microsoft and dropped out of the suit.
New York Times, July 14, 2001

Appeals Court Vacates Microsoft Breakup, June 28, 2001

In a unanimous opinion (PDF), the D.C. Circuit Court of Appeals vacated the judgment of District Judge Thomas Penfield Jackson.

The Court's per curiam opinion vacated the trial court's final judgment on remedy and remanded to a different trial judge, sternly rebuking Judge Jackson for ex parte cotacts during and after the trial. The Court affirmed in part and reversed in part the judgment of monopoly maintenance in the operating system market, reversed on attempted monopolization of the browser market, and remanded on unlawful tying of the browser to the operating system.

Opinion, June 28, 2001 HTML or PDF

Analysis of the decision: Who are the real winners and losers?
New York Times wire reports
CNN Report
CNet News.com

News links and analysis of the decision, June 29, 2001

Competitors Charge Microsoft with New Anticompetitive Conduct in Windows XP

ProComp issues a second whitepaper: Passport to Monopoly, claiming Microsoft plans to leverage its desktop monopoly to dominate the emerging market for Web services, June 21, 2001.
Microsoft to XP users: Passport Required, CNet News.com, June 21, 2001

Group Says Microsoft's XP Raises Antitrust Anew , April 26, 2001
ProComp's Whitepaper argues that Microsoft is tying its Media Player 8 to Windows XP in much the same way as it tied the browser to Windows 95.

Earlier news from the case archived here.

[Key Earlier Documents]

Break it up (June 7, 2000):

  • Memorandum and Order, (PDF), June 7, 2000
  • Final Judgment, (PDF), June 7, 2000
    Holding that "Microsoft's profession of surprise is not credible," Judge Thomas Penfield Jackson adopted the Government plaintiffs' revised proposed final judgment, ordering Microsoft broken into an Operating Systems Business and an Applications Business. Jackson sharply criticized Microsoft's recent tactics and "reluctantly" concluded that structural remedies were necessary: "Microsoft as it is presently organized and led is unwilling to accept the notion that it broke the law or accede to an order amending its conduct."

  • Jackson's Conclusions of Law, April 3, 2000

  • Amicus Briefs Filed Feb. 1, 2000:
  • Amicus Brief on Technological Tying (PDF) or (HTML), Lawrence Lessig, 02/01/00
  • Amicus Brief for Microsoft, (HTML), Wilmer, Cutler & Pickering, for the Association for Competitive Technology, 02/01/00
  • Amicus Brief for Department of Justice, Software and Information Industry Association, 02/01/0
  • Amicus Brief for Plaintiff States, Robert Bork, 02/01/00

  • Microsoft's Proposed Conclusions of Law Jan. 18, 2000
    local HTML or Microsoft site; Word Document; Text.
    Microsoft summary and Response to States' Proposed Conclusions of Law.

  • Plaintiffs' Joint Proposed Conclusions of Law Dec. 6, 1999

  • Judge Thomas Penfield Jackson's Findings of Fact Nov. 5, 1999
    GPO site; local copies: findings, index, PDF, WordPerfect, or Word format.
    33. Microsoft enjoys so much power in the market for Intel-compatible PC operating systems that if it wished to exercise this power solely in terms of price, it could charge a price for Windows substantially above that which could be charged in a competitive market. Moreover, it could do so for a significant period of time without losing an unacceptable amount of business to competitors. In other words, Microsoft enjoys monopoly power in the relevant market.
    Additional documents: Both parties' proposed findings of fact [Plaintiffs, Microsoft] and lawyers' closing arguments [a.m., p.m.] before Judge Thomas Penfield Jackson on September 21.

    All trial transcripts are available in the Trial section; filed legal documents are in the Archive. Commentary and timelines are linked from the Reference Materials section of the Archive.

    Thinking about remedy? How about Jonathan Zittrain's Un-Microsoft Un-Remedy: Law Can Prevent the Problem That It Can't Patch Later.

    Though class is over, this page will continue to be updated on a semi-regular basis.
    Class summaries of the testimony are collected on a page in our password-protected directory.

    Microsoft and the Windows logo are trademarks of the Microsoft Corporation. The United States flag is not currently protected by an anti-desecration amendment, so it may safely be shown in conjunction with aforementioned logo. It is our understanding that all use of trademarks on this website is permissible fair use or parody. Please view this website in the appropriate spirit. Now, bundled with Aieee!

    What's a browser, who's concerned? From the Gates video archive: "What is it about the word 'concerned' that you don't understand?"
    What does Microsoft think of Linux?: The Halloween Documents

    Last modified 10/2002 by Wendy Seltzer.

    The Berkman Center for Internet & Society