UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
|UNITED STATES OF AMERICA,
|Civil Action No. 98-1232 (TPJ)
|STATE OF NEW YORK, et al.,
|Civil Action No. 98-1233 (TPJ)
|ELIOT SPITZER, attorney
|general of the State of
|New York, in his official
|capacity, et al.,
Plaintiff, United States of America, having filed its complaint herein
on May 18, 1998;
Plaintiff States, having filed their complaint herein on the same day;
Defendant Microsoft Corporation ("Microsoft") having appeared and filed
its answer to such complaints;
The Court having jurisdiction of the parties hereto and of the subject
matter hereof and having conducted a trial thereon and entered Findings
of Fact on November 5, 1999, and Conclusions of Law on April 3, 2000;
The Court having entered judgment in accordance with the Findings of
Fact and the Conclusions of Law on April 3, 2000, that Microsoft has violated
§§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, as
well as the following state law provisions: Cal Bus. & Prof. Code §§
16720, 16726, 16727, 17200; Conn. Gen. Stat. §§ 35-26, 35-27,
35-29; D.C. Code §§ 28-4502, 28-4503; Fla. Stat. chs. 501.204(1),
542.18, 542.19; 740 Ill. Comp. Stat. ch. 10/3; Iowa Code §§ 553.4,
553.5; Kan. Stat. §§ 50-101 et seq.; Ky. Rev. Stat. §§
367.170, 367.175; La. Rev. Stat. §§ 51:122, 51:123, 51:1405;
Md. Com. Law II Code Ann. § 11-204; Mass. Gen. Laws ch. 93A, §
2; Mich. Comp. Laws §§ 445.772, 445.773; Minn. Stat. § 325D.52;
N.M. Stat. §§ 57-1-1, 57-1-2; N.Y. Gen. Bus. Law § 340;
N.C. Gen. Stat. §§ 75-1.1, 75-2.1; Ohio Rev. Code §§
1331.01, 1331.02; Utah Code § 76-10-914; W.Va. Code §§ 47-18-3,
47-18-4; Wis. Stat. § 133.03(1)-(2); and
Upon the record at trial and all prior and subsequent proceedings herein,
it is this _____ day of June, 2000, hereby:
ORDERED, ADJUDGED, AND DECREED as follows:
a. Not later than four months after entry of this
Final Judgment, Microsoft shall submit to the Court and the Plaintiffs
a proposed plan of divestiture. The Plaintiffs shall submit any objections
to the proposed plan of divestiture to the Court within 60 days of receipt
of the plan, and Microsoft shall submit its response within 30 days of
receipt of the plaintiffs' objections.
b. Following approval of a final plan of divestiture
by the Court (the "Plan")(1) (and the expiration
of the stay pending appeal set forth in section
6.a), Microsoft shall implement such Plan.
c. The Plan shall provide for the completion, within
12 months of the expiration of the stay pending appeal set forth in section
6.a., of the following steps:
d. Until Implementation of the Plan, Microsoft shall:
i. The separation of the Operating Systems Business
from the Applications Business, and the transfer of the assets of one of
them (the "Separated Business") to a separate entity along with (a) all
personnel, systems, and other tangible and intangible assets (including
Intellectual Property) used to develop, produce, distribute, market, promote,
sell, license and support the products and services of the Separated Business,
and (b) such other assets as are necessary to operate the Separated Business
as an independent and economically viable entity.
ii. Intellectual Property that is used both in a product
developed, distributed, or sold by the Applications Business and in a product
developed, distributed, or sold by the Operating Systems Business as of
April 27, 2000, shall be assigned to the Applications Business, and the
Operating Systems Business shall be granted a perpetual, royalty-free license
to license and distribute such Intellectual Property in its products, and,
except with respect to such Intellectual Property related to the Internet
browser, to develop, license and distribute modified or derivative versions
of such Intellectual Property, provided that the Operating Systems Business
does not grant rights to such versions to the Applications Business. In
the case of such Intellectual Property that is related to the Internet
browser, the license shall not grant the Operating Systems Business any
right to develop, license, or distribute modified or derivative versions
of the Internet browser.
iii. The transfer of ownership of the Separated Business
by means of a distribution of stock of the Separated Business to Non-Covered
Shareholders of Microsoft, or by other disposition that does not result
in a Covered Shareholder owning stock in both the Separated Business and
the Remaining Business.
i. preserve, maintain, and operate the Operating
Systems Business and the Applications Business as ongoing, economically
viable businesses, with management, sales, products, and operations of
each business held as separate, distinct and apart from one another as
they were on April 27, 2000, except to provide the accounting, management,
and information services or other necessary support functions provided
by Microsoft prior to the entry of this Final Judgment;
ii. use all reasonable efforts to maintain and increase
the sales and revenues of both the products produced or sold by the Operating
Systems Business and those produced or sold by the Applications Business
prior to the Implementation of the Plan and to support research and development
and business development efforts of both the Operating Systems Business
and the Applications Business;
2. Provisions Implementing Divestiture
iii. take no action that undermines, frustrates,
interferes with, or makes more difficult the divestiture required by this
Final Judgment without the prior approval of the Court; and
iv. file a report with the Court 90 days after entry
of this Final Judgment on the steps Microsoft has taken to comply with
the requirements of this section 1.d.
a. After Implementation of the Plan, and throughout
the term of this Final Judgment, neither the Operating Systems Business
nor the Applications Business, nor any member of their respective Boards
of Directors, shall acquire any securities or assets of the other Business;
no Covered Shareholder holding securities of either the Operating Systems
Business or the Applications Business shall acquire any securities or assets
of or shall be an officer, director, or employee of the other Business;
and no person who is an officer, director, or employee of the Operating
Systems Business or the Applications Business shall be an officer, director,
or employee of the other Business.
b. After Implementation of the Plan and throughout the
term of this Final Judgment, the Operating Systems Business and the Applications
Business shall be prohibited from:
i. merging or otherwise recombining, or entering
into any joint venture with one another;
ii. entering into any Agreement with one another under
which one of the Businesses develops, sells, licenses for sale or distribution,
or distributes products or services (other than the technologies referred
to in the following sentence) developed, sold, licensed, or distributed
by the other Business;
iii. providing to the other any APIs, Technical Information,
Communications Interfaces, or technical information that is not simultaneously
published, disclosed, or made readily available to ISVs, IHVs, and OEMs;
iv. licensing, selling or otherwise providing to the
other Business any product or service on terms more favorable than those
available to any similarly situated third party.
Section 2.b.ii shall not prohibit the Operating Systems Business and the
Applications Business from licensing technologies (other than Middleware
Products) to each other for use in each others' products or services provided
that such technology (i) is not and has not been separately sold, licensed,
or offered as a product, and (ii) is licensed on terms that are otherwise
consistent with this Final Judgment.
c. Three months after Implementation of the Plan
and once every three months thereafter throughout the term of this Final
Judgment, the Operating Systems Business and the Applications Business
shall file with the Plaintiffs a copy of each Agreement (and a memorandum
describing each oral Agreement) entered into between them.
3. Provisions In Effect Until Full Implementation of
the Plan of Divestiture . The provisions in this section 3 shall remain
in effect until the earlier of three years after the Implementation of
the Plan or the expiration of the term of this Final Judgment.
d. Throughout the term of this Final Judgment, Microsoft,
the Operating Systems Business and the Applications Business shall be prohibited
from taking adverse action against any person or entity in whole or in
part because such person or entity provided evidence in this case.
e. The obligations and restrictions set forth in sections
3 and 4 herein shall, after the Implementation of the Plan, apply only
to the Operating Systems Business.
a. OEM Relations.
i. Ban on Adverse Actions for Supporting Competing
Products. Microsoft shall not take or threaten any action adversely affecting
any OEM (including but not limited to giving or withholding any consideration
such as licensing terms; discounts; technical, marketing, and sales support;
enabling programs; product information; technical information; information
about future plans; developer tools or developer support; hardware certification;
and permission to display trademarks or logos) based directly or indirectly,
in whole or in part, on any actual or contemplated action by that OEM:
ii. Uniform Terms for Windows Operating System Products
Licensed to Covered OEMs. Microsoft shall license Windows Operating System
Products to Covered OEMs pursuant to uniform license agreements with uniform
terms and conditions and shall not employ market development allowances
or discounts in connection with Windows Operating System Products. 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
plaintiffs and all Covered OEMs , that provides for uniform royalties for
Windows Operating System Products, except that -
(1) to use, distribute, promote, license, develop,
produce or sell any product or service that competes with any Microsoft
product or service; or
(2) to exercise any of the options or alternatives provided
under this Final Judgment.
(1) the schedule may specify different royalties
for different language versions, and
(2) the schedule may specify reasonable volume discounts
based upon actual volume of total shipments of Windows Operating System
Without limiting the foregoing, Microsoft shall afford Covered OEMs equal
access to licensing terms; discounts; technical, marketing, and sales support;
product information; technical information; information about future plans;
developer tools or developer support; hardware certification; and permission
to display trademarks or logos. The foregoing requirement insofar as it
relates to access to technical information and information about future
plans shall not apply to any bona fide joint development effort by Microsoft
and a Covered OEM with respect to confidential matters within the scope
of that effort. Microsoft shall not terminate a Covered OEM's license for
a Windows Operating System Product without having first given the Covered
OEM written notice of the reason for the proposed termination and not less
than thirty days' opportunity to cure. Microsoft shall not enforce any
provision in any Agreement with a Covered OEM that is inconsistent with
this Final Judgment.
iii. OEM Flexibility in Product Configuration. Microsoft
shall not restrict (by contract or otherwise, including but not limited
to granting or withholding consideration) an OEM from modifying the boot
sequence, startup folder, internet connection wizard, desktop, preferences,
favorites, start page, first screen, or other aspect of a Windows Operating
System Product to -
b. Disclosure of APIs, Communications Interfaces and
Technical Information. Microsoft shall disclose to ISVs, IHVs, and
OEMs in a Timely Manner, in whatever media Microsoft disseminates
such information to its own personnel, all APIs, Technical Information
and Communications Interfaces that Microsoft employs to enable -
(1) include a registration sequence to obtain subscription
or other information from the user;
(2) display icons of or otherwise feature other products
or services, regardless of the size or shape of such icons or features,
or to remove the icons, folders, start menu entries, or favorites of Microsoft
products or services;
(3) display any user interfaces, provided that an icon
is also displayed that allows the user to access the Windows user interface;
(4) launch automatically any non-Microsoft Middleware,
Operating System or application, offer its own Internet access provider
or other start-up sequence, or offer an option to make non-Microsoft Middleware
the Default Middleware and to remove the means of End-User Access for Microsoft's
i. Microsoft applications to interoperate with Microsoft
Platform Software installed on the same Personal Computer, or
ii. a Microsoft Middleware Product to interoperate with
Windows Operating System software (or Middleware distributed with such
Operating System) installed on the same Personal Computer, or
iii. any Microsoft software installed on one computer
(including but not limited to server Operating Systems and operating systems
for handheld devices) to interoperate with a Windows Operating System (or
Middleware distributed with such Operating System) installed on a Personal
To facilitate compliance, and monitoring of compliance, with the foregoing,
Microsoft shall create a secure facility where qualified representatives
of OEMs, ISVs, and IHVs shall be permitted to study, interrogate and interact
with relevant and necessary portions of the source code and any related
documentation of Microsoft Platform Software for the sole purpose of enabling
their products to interoperate effectively with Microsoft Platform Software
(including exercising any of the options in section 3.a.iii).
c. Knowing Interference with Performance. Microsoft
shall not take any action that it knows will interfere with or degrade
the performance of any non-Microsoft Middleware when interoperating with
any Windows Operating System Product without notifying the supplier of
such non-Microsoft Middleware in writing that Microsoft intends to take
such action, Microsoft's reasons for taking the action, and any ways known
to Microsoft for the supplier to avoid or reduce interference with, or
the degrading of, the performance of the supplier's Middleware.
d. Developer Relations. Microsoft shall not take or threaten
any action affecting any ISV or IHV (including but not limited to giving
or withholding any consideration such as licensing terms; discounts; technical,
marketing, and sales support; enabling programs; product information; technical
information; information about future plans; developer tools or developer
support; hardware certification; and permission to display trademarks or
logos) based directly or indirectly, in whole or in part, on any actual
or contemplated action by that ISV or IHV to -
e. Ban on Exclusive Dealing. Microsoft shall not enter
into or enforce any Agreement in which a third party agrees, or is offered
or granted consideration,
i. use, distribute, promote or support any Microsoft
product or service, or
ii. develop, use, distribute, promote or support software
that runs on non-Microsoft Middleware or a non-Microsoft Operating System
or that competes with any Microsoft product or service, or
iii. exercise any of the options or alternatives provided
under this Final Judgment.
4. Internal Antitrust Compliance. This section shall
remain in effect throughout the term of this Final Judgment, provided that,
consistent with section 2.e, this section shall not apply to the Applications
Business after the Implementation of the Plan.
i. restrict its development, production, distribution,
promotion or use of, or payment for, any non-Microsoft Platform Software,
f. Ban on Contractual Tying. Microsoft shall not condition
the granting of a Windows Operating System Product license, or the terms
or administration of such license, on an OEM or other licensee agreeing
to license, promote, or distribute any other Microsoft software product
that Microsoft distributes separately from the Windows Operating System
Product in the retail channel or through Internet access providers, Internet
content providers, ISVs or OEMs, whether or not for a separate or positive
ii. distribute, promote or use any Microsoft Platform
iii. degrade the performance of any non-Microsoft Platform
iv. in the case of an agreement with an Internet access
provider or Internet content provider, distribute, promote or use Microsoft
software in exchange for placement with respect to any aspect of a Windows
Operating System Product.
g. Restriction on Binding Middleware Products to Operating
System Products. Microsoft shall not, in any Operating System Product distributed
six or more months after the effective date of this Final Judgment, Bind
any Middleware Product to a Windows Operating System unless:
h. Agreements Limiting Competition. Microsoft shall not
offer, agree to provide, or provide any consideration to any actual or
potential Platform Software competitor in exchange for such competitor's
agreeing to refrain or refraining in whole or in part from developing,
licensing, promoting or distributing any Operating System Product or Middleware
Product competitive with any Windows Operating System Product or Middleware
i. Microsoft also offers an otherwise identical version
of that Operating System Product in which all means of End-User Access
to that Middleware Product can readily be removed (a) by OEMs as part of
standard OEM preinstallation kits and (b) by end users using add-remove
utilities readily accessible in the initial boot process and from the Windows
ii. when an OEM removes End-User Access to a Middleware
Product from any Personal Computer on which Windows is preinstalled, the
royalty paid by that OEM for that copy of Windows is reduced in an amount
not less than the product of the otherwise applicable royalty and the ratio
of the number of amount in bytes of binary code of (a) the Middleware Product
as distributed separately from a Windows Operating System Product to (b)
the applicable version of Windows.
i. Continued Licensing of Predecessor Version. Microsoft
shall, when it makes a major Windows Operating System Product release (such
as Windows 95, OSR 2.0, OSR 2.5, Windows 98, Windows 2000 Professional,
Windows "Millennium," "Whistler," "Blackcomb," and successors to these),
continue for three years after said release to license on the same terms
and conditions the previous Windows Operating System Product to any OEM
that desires such a license. The net royalty rate for the previous Windows
Operating System Product shall be no more than the average royalty paid
by the OEM for such Product prior to the release. The OEM shall be free
to market Personal Computers in which it preinstalls such an Operating
System Product in the same manner in which it markets Personal Computers
preinstalled with other Windows Operating System Products.
a. Within 90 days after the effective date of this
Final Judgment, Microsoft shall establish a Compliance Committee of its
corporate Board of Directors, consisting of not fewer than three members
of the Board of Directors who are not present or former employees of Microsoft.
b. The Compliance Committee shall hire a Chief Compliance
Officer, who shall report directly to the Compliance Committee and to the
Chief Executive Officer of Microsoft.
c. The Chief Compliance Officer shall be responsible
for development and supervision of Microsoft's internal programs to ensure
compliance with the antitrust laws and this Final Judgment.
d. Microsoft shall give the Chief Compliance Officer
sufficient authority and resources to discharge the responsibilities listed
e. The Chief Compliance Officer shall:
i. within 90 days after entry of this Final Judgment,
cause to be delivered to each Microsoft officer, director, and Manager,
and each platform software developer and employee involved in relations
with OEMs, ISVs, or IHVs, a copy of this Final Judgment together with additional
informational materials describing the conduct prohibited and required
by this Final Judgment;
ii. distribute in a timely manner a copy of this Final
Judgment and such additional informational materials to any person who
succeeds to a position of officer, director, or Manager, or platform software
developer or employee involved in relations with OEMs, ISVs or IHVs;
iii. obtain from each officer, director, and Manager,
and each platform software developer and employee involved in relations
with OEMs, ISVs or IHVs, within 90 days of entry of this Final Judgment,
and for each person thereafter succeeding to such a position within 5 days
of such succession, a written certification that he or she:
(1) has read, understands, and agrees to abide by
the terms of this Final Judgment; and
iv. maintain a record of persons to whom this Final Judgment
has been distributed and from whom, pursuant to Section 4.e.iii, such certifications
have been obtained;
(2) has been advised and understands that his or her
failure to comply with this Final Judgment may result in conviction for
criminal contempt of court;
v. establish and maintain a means by which employees
can report potential violations of this Final Judgment or the antitrust
laws on a confidential basis; and
vi. report immediately to Plaintiffs and the Court any
violation of this Final Judgment.
f. The Chief Compliance Officer may be removed only
by the Chief Executive Officer with the concurrence of the Compliance Committee.
5. Compliance Inspection. This section shall remain in
effect throughout the term of this Final Judgment.
g. Microsoft shall, with the supervision of the Chief
Compliance Officer, maintain for a period of at least four years the e-mail
of all Microsoft officers, directors and managers engaged in software development,
marketing, sales and developer relations related to Platform Software.
a. For purposes of determining or securing implementation
of or compliance with this Final Judgment, including the provisions requiring
a plan of divestiture, or determining whether this Final Judgment should
be modified or vacated, and subject to any legally recognized privilege,
from time to time:
i. Duly authorized representatives of a Plaintiff,
upon the written request of the Assistant Attorney General in charge of
the Antitrust Division of the United States Department of Justice, or the
Attorney General of a Plaintiff State, as the case may be, and on reasonable
notice to Microsoft made to its principal office, shall be permitted:
(1) Access during office hours to inspect and copy or, at Plaintiffs'
option, demand Microsoft provide copies of all books, ledgers, accounts,
correspondence, memoranda, source code, and other records and documents
in the possession or under the control of Microsoft (which may have counsel
present), relating to the matters contained in this Final Judgment; and
(2) Subject to the reasonable convenience of Microsoft and
without restraint or interference from it, to interview, either informally
or on the record, its officers, employees, and agents, who may have their
individual counsel present, regarding any such matters.
6. Effective Date, Term, Retention of Jurisdiction, Modification.
ii. Upon the written request of the Assistant Attorney
General in charge of the Antitrust Division of the United States Department
of Justice, or the Attorney General of a Plaintiff State, as the case may
be, made to Microsoft at its principal offices, Microsoft shall submit
such written reports, under oath if requested, as may be requested with
respect to any matter contained in this Final Judgment.
iii. No information or documents obtained by the means
provided in this section shall be divulged by a representative of a Plaintiff
to any person other than a duly authorized representative of a Plaintiff,
except in the course of legal proceedings to which the Plaintiff is a party
(including grand jury proceedings), or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
iv. If at the time information or documents are furnished
by Microsoft to a Plaintiff, Microsoft represents and identifies in writing
the material in any such information or documents to which a claim of protection
may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure,
and Microsoft marks each pertinent page of such material, "Subject to claim
of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,"
then 10 calendar days notice shall be given by a Plaintiff to Microsoft
prior to divulging such material in any legal proceeding (other than a
grand jury proceeding) to which Microsoft is not a party.
a. This Final Judgment shall take effect 90 days
after the date on which it is entered; provided, however that sections
1.b and 2 (except 2.d) shall be stayed pending completion of any appeals
from this Final Judgment.
b. Except as provided in section 2.e, the provisions
of this Final Judgment apply to Microsoft as defined in section 7.o of
this Final Judgment.
c. This Final Judgment shall expire at the end of ten
years from the date on which it takes effect.
d. The Court may act sua sponte to issue
orders or directions for the construction or carrying out of this Final
Judgment, for the enforcement of compliance therewith, and for the punishment
of any violation thereof.
e. Jurisdiction is retained by this Court for the purpose
of enabling any of the parties to this Final Judgment to apply to this
Court at any time for such further orders or directions as may be necessary
or appropriate for the construction or carrying out of this Final Judgment,
for the modification of any of the provisions hereof, for the enforcement
of compliance herewith, and for the punishment of any violation hereof.
f. In accordance with the Court's Conclusions of Law,
the plaintiff States shall submit a motion for costs and fees, with supporting
documents as necessary, no later than 45 days after the entry of this Final
a. "Agreement" means any agreement, arrangement,
alliance, understanding or joint venture, whether written or oral.
b. "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.
c. "Applications Business" means all businesses carried
on by Microsoft Corporation on the effective date of this Final Judgment
except the Operating Systems Business. Applications Business includes but
is not limited to the development, licensing, promotion, and support of
client and server applications and Middleware (e.g., Office, BackOffice,
Internet Information Server, SQL Server, etc.), Internet Explorer, Mobile
Explorer and other web browsers, Streaming Audio and Video client and server
software, transaction server software, SNA server software, indexing server
software, XML servers and parsers, Microsoft Management Server, Java virtual
machines, Frontpage Express (and other web authoring tools), Outlook Express
(and other e-mail clients), Media player, voice recognition software, Net
Meeting (and other collaboration software), developer tools, hardware,
MSN, MSNBC, Slate, Expedia, and all investments owned by Microsoft in partners
or joint venturers, or in ISVs, IHVs, OEMs or other distributors, developers,
and promoters of Microsoft products, or in other information technology
or communications businesses.
d. "Bind" means to include a product in an Operating
System Product in such a way that either an OEM or an end user cannot readily
remove or uninstall the product.
e. "Business" means the Operating Systems Business or
the Applications Business.
f. "Communications Interfaces" means the interfaces and
protocols that enable software installed on other computers (including
servers and handheld devices) to interoperate with the Microsoft Platform
Software on a Personal Computer.
g. "Covered OEM" means one of the 20 OEMs with the highest
volume of licenses of Windows Operating System Products from Microsoft
in the calendar year preceding the effective date of the Final Judgment.
At the beginning of each year, starting on January 1, 2002, Microsoft shall
redetermine the Covered OEMs for the new calendar year, based on sales
volume during the preceding calendar year.
h. "Covered Shareholder" means a shareholder of Microsoft
on the date of entry of this Final Judgment who is a present or former
employee, officer or director of Microsoft and who owns directly or beneficially
more than 5 percent of the voting stock of the firm.
i. "Default Middleware" means Middleware configured to
launch automatically (that is, by "default") to provide particular functionality
when other Middleware has not been selected for this purpose. For example,
a default browser is Middleware configured to launch automatically to display
Web pages transmitted over the Internet or an intranet that bear the .htm
extension, when other software has not been selected for this purpose.
j. "End-User Access" means the invocation of Middleware
directly or indirectly by an end user of a Personal Computer or the ability
of such an end user to invoke Middleware. "End-User Access" includes invocation
of Middleware by end users which is compelled by the design of the Operating
k. "IHV" means an independent hardware vendor that develops
hardware to be included in or used with a Personal Computer.
l. "Implementation of the Plan" means full completion
of all of the steps described in section 1.c.
m. "Intellectual Property" means copyrights, patents,
trademarks and trade secrets used by Microsoft or licensed by Microsoft
to third parties.
n. "ISV" means any entity other than Microsoft (or any
subsidiary, division, or other operating unit of any such other entity)
that is engaged in the development and licensing (or other marketing) of
software products intended to interoperate with Microsoft Platform Software.
o. "Manager" means a Microsoft employee who is responsible
for the direct or indirect supervision of more than 100 other employees.
p. "Microsoft" means Microsoft Corporation, the Separated
Business, the Remaining Business, their successors and assigns (including
any transferee or assignee of any ownership rights to, control of, or ability
to license the patents referred to in this Final Judgment), their subsidiaries,
affiliates, directors, officers, managers, agents, and employees, and all
other persons in active concert or participation with any of them who shall
have received actual notice of this Final Judgment by personal service
q. "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.
r. "Middleware Product" means
s. "Non-Covered Shareholder" means a shareholder of Microsoft
on the record date for the transaction that effects the transfer of ownership
of the Separated Business under Section 1.c.iii who is not a Covered Shareholder
on the date of entry of this Final Judgment.
i. Internet browsers, e-mail client software, multimedia
viewing software, instant messaging software, and voice recognition software,
ii. software distributed by Microsoft that -
(1) is, or has in the applicable preceding year been,
distributed separately from an Operating System Product in the retail channel
or through Internet access providers, Internet content providers, ISVs
or OEMs, and
(2) provides functionality similar to that provided by
Middleware offered by a competitor to Microsoft.
t. "OEM" means the manufacturer or assembler of a personal
u. "Operating System" means the software that controls
the allocation and usage of hardware resources (such as memory, central
processing unit time, disk space, and peripheral devices) of a computer,
providing a "platform" by exposing APIs that applications use to "call
upon" the Operating System's underlying software routines in order to perform
v. "Operating System Product" means an Operating System
and additional software shipped with the Operating System, whether or not
such additional software is marketed for a positive price. An Operating
System Product includes Operating System Product upgrades that may be distributed
separately from the Operating System Product.
w. "Operating Systems Business" means the development,
licensing, promotion, and support of Operating System Products for computing
devices including but not limited to (i) Personal Computers, (ii) other
computers based on Intel x86 or competitive microprocessors, such as servers,
(iii) handheld devices such as personal digital assistants and cellular
telephones, and (iv) television set-top boxes.
x. "Personal Computer" means any computer configured
so that its primary purpose is to be used by one person at a time,
that uses a video display and keyboard (whether or not the video display
and keyboard are actually included), and that contains an Intel x86, successor,
or competitive microprocessor, and computers that are commercial substitutes
for such computers.
y. "Plaintiff" means the United States or any of the
plaintiff States in this action.
z. "Plan" means the final plan of divestiture approved
by the Court.
aa. "Platform Software" means an Operating System or
Middleware or a combination of an Operating System and Middleware.
bb. "Remaining Business" means whichever of the Operating
Systems Business and the Applications Businesses is not transferred to
a separate entity pursuant to the Plan.
cc. "Separated Business" means whichever of the Operating
Systems Business and the Applications Businesses is transferred to a separate
entity pursuant to the Plan.
dd. "Technical Information" means all information
regarding the identification and means of using APIs and Communications
Interfaces that competent software developers require to make their products
running on any computer interoperate effectively with Microsoft Platform
Software running on a Personal Computer. Technical information includes
but is not limited to reference implementations, communications protocols,
file formats, data formats, syntaxes and grammars, data structure definitions
and layouts, error codes, memory allocation and deallocation conventions,
threading and synchronization conventions, functional specifications and
descriptions, algorithms for data translation or reformatting (including
compression/decompression algorithms and encryption/decryption algorithms),
registry settings, and field contents.
ee. "Timely Manner": disclosure of APIs, Technical Information
and Communications Interfaces in a timely manner means, at a minimum, publication
on a web site accessible by ISVs, IHVs, and OEMs at the earliest of the
time that such APIs, Technical Information, or Communications Interfaces
are (1) disclosed to Microsoft's applications developers, (2) used by Microsoft's
own Platform Software developers in software released by Microsoft in alpha,
beta, release candidate, final or other form, (3) disclosed to any third
party, or (4) within 90 days of a final release of a Windows Operating
System Product, no less than 5 days after a material change is made between
the most recent beta or release candidate version and the final release.
ff. "Windows Operating System Product" means software
code (including source code and binary code, and any other form in which
Microsoft distributes its Windows Operating Systems for Personal Computers)
of Windows 95, Windows 98, Windows 2000 Professional, and their successors,
including the Windows Operating Systems for Personal Computers codenamed
"Millennium," "Whistler," and "Blackcomb," and their successors.
Thomas Penfield Jackson
U.S. District Judge
1. Definitions of capitalized terms are set forth
in section 7, below.