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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.
The question presented for review is:
Kodak Joins Chorus of Windows XP Critics, (8/1/01)
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.
News links and analysis of the decision, June 29, 2001
Group Says Microsoft's XP Raises Antitrust Anew , April 26, 2001
News: 2/26/01 Microsoft: Didn't Stifle Competition, AP
News: 2/26/01 High-Stakes Appeal Could Be Last Court Date for Microsoft New York Times
News Coverage: Wired News, New York Times, Wall Street Journal, Industry Standard, Washington Post
Seminar for Judges in Microsoft Case Opposed, Washington Post, October 26, 2000
Court Grants Microsoft Request, 9/26/00, AP
Microsoft's Reply Brief to the Supreme Court of the United States, August 22, 2000
News: (8/3/00) EU Takes Another Shot at Microsoft, Industry Standard
ORDERED, that the joint motion by plaintiffs for certification pursuant to 15 U.S.C. s29(b) is granted, and this Court herby certifies that immediate consideration by the Supreme Court of the appeal taken herein is of general public importance in the administration of justice; and it is
FURTHER ORDERED, that the Final Judgment of June 7, 2000, is stayed in its entirety until the appeal therefrom is heard and decided, unless the stay is earlier vacated by an appellate court.
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."
Divestiture provisions will be stayed pending appeal, while conduct limitations will take effect in 90 days. Microsoft filed for a stay of the judgment and reiterated its intention to appeal, as it had been vowing to do even before Jackson's ruling. The Justice Department will ask that the appeal be sent directly to the Supreme Court, a request that must be certified by Jackson under the Expediting Act. It is unclear whether the Court would accept the case without first hearing an appellate ruling.
The Government filed its final proposal Monday morning, with minor changes from the previous version; Microsoft criticized its provisions Tuesday. Last week, Microsoft called the Government proposal "defective" after Goverment plaintiffs first refiled their proposal for bilateral division. At the plaintiffs' request, Jackson ordered the Government to respond to the comments.
News (4/26/00): Government Refiles Microsoft Plan for Two-Way Split, Reuters Hearing: May 24, 2000
News: Judge Sees "No Further Process"
At the close of today's remedy hearing, Judge Jackson ordered the government to file a new remedy proposal by Friday. Microsoft will have until Tuesday to prepare its response. Jackson is expected to rule shortly thereafter. Jackson rejected Microsoft's motion to dismiss the government's breakup proposal, and spoke favorably of an amicus brief filed last week by two industry associations recommending a three-way breakup. He appeared skeptical of the government's proposal that Microsoft work out the details of its own breakup and cautioned that "a bisection will in effect create two separate monopolies."
News (5/18/00): Microsoft Arguments Against Breakup Called Inconsistent, Washington Post
Microsoft offered its own proposed final judgment, along with applications for summary rejection of the Government's proposal and additional time to prepare its response. Microsoft proposed to limit the terms it could add to OEM license agreements, permitting OEMs to add icons to the default desktop, offer their own Internet service signup in the boot process, remove the Internet Explorer icon from the desktop, and configure alternate web browsers as the default browser. Microsoft would also be forbidden from denying any independent software vendor access to technical information it made available to others, and required to continue licensing old operating systems at their existing royalties for three years upon introduction of a subsequent version.
Rethinking Antitrust Policies for the New Economy, speech by Joel Klein, Assistant Attorney General, Antitrust Division, May 9, 2000
The Government has filed its proposed remedy with the District Court, asking Judge Jackson to break Microsoft into two separate companies, an "Operating Systems Business" and an "Applications Business." The Justice Department and a majority of the 19 state plaintiffs signed on to the proposal. Microsoft, predictably, has called the ruling 'extreme' and will file its own proposal by May 10.
News (4/26/00): Government Refiles Microsoft Plan for Two-Way Split, Reuters Hearing: May 24, 2000
News: Judge Sees "No Further Process"
At the close of today's remedy hearing, Judge Jackson ordered the government to file a new remedy proposal by Friday. Microsoft will have until Tuesday to prepare its response. Jackson is expected to rule shortly thereafter. Jackson rejected Microsoft's motion to dismiss the government's breakup proposal, and spoke favorably of an amicus brief filed last week by two industry associations recommending a three-way breakup. He appeared skeptical of the government's proposal that Microsoft work out the details of its own breakup and cautioned that "a bisection will in effect create two separate monopolies."
News (5/18/00): Microsoft Arguments Against Breakup Called Inconsistent, Washington Post
Microsoft offered its own proposed final judgment, along with applications for summary rejection of the Government's proposal and additional time to prepare its response. Microsoft proposed to limit the terms it could add to OEM license agreements, permitting OEMs to add icons to the default desktop, offer their own Internet service signup in the boot process, remove the Internet Explorer icon from the desktop, and configure alternate web browsers as the default browser. Microsoft would also be forbidden from denying any independent software vendor access to technical information it made available to others, and required to continue licensing old operating systems at their existing royalties for three years upon introduction of a subsequent version.
Rethinking Antitrust Policies for the New Economy, speech by Joel Klein, Assistant Attorney General, Antitrust Division, May 9, 2000
The Government has filed its proposed remedy with the District Court, asking Judge Jackson to break Microsoft into two separate companies, an "Operating Systems Business" and an "Applications Business." The Justice Department and a majority of the 19 state plaintiffs signed on to the proposal. Microsoft, predictably, has called the ruling 'extreme' and will file its own proposal by May 10.
Judge Thomas Penfield Jackson issued his conclusions of law at 5:00p.m. Monday, holding that Microsoft violated Section 2 of the Sherman Antitrust Act by using anticompetitive means to maintain its operating system monopoly and by attempting to monopolize the Web browser market; and tied the Internet Explorer browser to Windows in violation of Section 1. Jackson rejected the Government's claim that Microsoft had engaged in unlawful exclusive dealing. He granted and denied the same claims of the 19 plaintiff states.
The parties will return to court May 24 for remedy hearings, and Microsoft has already announced plans to appeal after the remedy phase and final decree. Jackson has encouraged the parties to use the Expediting Act to take appeals directly to the Supreme Court. He indicated in a conference Tuesday that he wants to conclude the remedy phase within 60 days.
The findings of fact may be used as prima facie evidence of harm by plaintiffs in private class action suits, under the Clayton Act.
Microsoft and the government plaintiffs were unable to reach a settlement despite additional discussions with mediator Judge Richard Posner last week.
News: (4/11/00): Microsoft Hires a Bush Adviser to Lobby Bush, then Reed Regrets Contract, New York Times
News: (4/6/00): Microsoft Case Put on Fast Track, Baltimore Sun
News: (4/4/00): Microsoft Judge Wants Case Resolved in 60 Days, Reuters News (4/3/00): Judge Finds Microsoft Guilty of Antitrust Law Violations, New York Times News (4/2/00): Judge Posner's Statement on Failure of Mediation
News (3/29/00): Judge in Microsoft Case Delays a Ruling
as Mediation Intensifies, New York Times
News (3/27/00): Judge's Ruling on Microsoft After Tuesday-Sources, Reuters
News (3/26/00): Antitrust Talks Stall, The Industry Standard
News (3/25/00): Officials Say Microsoft Bid to Settle Suit
Is Inadequate, New York Times
News (3/24/00): Judge's Warning Prompts New Microsoft Offer--Sources, Reuters
News (3/23/00): Hope for Microsoft Settlement Renewed, Washington Post
Early reports:
The last hearings in this phase of the trial took place Tuesday before Judge Jackson. The oral arguments were the parties' last chance to influence Judge Thomas Penfield Jackson before he writes his conclusions of law.
The legal conclusions will be the second half of Jackson's verdict. His November Findings of Fact found Microsoft to be a monopoly in the market for Intel-compatible PC operating systems and detailed Microsoft's responses to browser and "middleware" threats. The next ruling will determine whether that conduct violated antitrust laws. Settlement talks with Judge Posner continue, as both sides fight to keep leaks and rumors down. The Industry Standard reports that Gates and Ballmer will personally participate in settlement discussions with Judge Posner.
News (2/9/00): European Union Commission Investigating Windows 2000
Amicus Briefs Filed Feb. 1, 2000:
News (2/1/00): Amicus Briefs Filed Today
News (1/25/00): Plaintiff States Still Split on Remedy Questions -- Not All Endorse Breakup
News: (1/12/00) Sources Tell USA Today of Government Proposal for Microsoft Breakup
News: (12/21/99)
Jackson Overrules Microsoft Objection to Lessig's Friend of the Court Brief
News (12/6): Parties meet again with Judge Posner;
and Government to file proposed conclusions of law this afternoon.
New York Times coverage of the findings (free registration required)
Earlier:
Both parties submitted proposed findings of fact [Plaintiffs, Microsoft] and lawyers made their closing arguments [a.m., p.m.] before Judge Thomas Penfield Jackson on September 21. They now prepare for the inevitable appeals. Microsoft lobbies government to cut the Antitrust Division's budget, the Washington Post reports.
Earlier deposition transcripts released:
ZDnet posts deposition transcripts.
Last modified 9/17/01 by Wendy Seltzer.
Case News:
Justice Department and Nine States Settle with Microsoft, November 6, 2001
Justice Department and Microsoft to Present Settlment Proposal to Judge, November 2, 2001
Proposed Settlement, November 2, 2001
Justice Department Press Release, November 2, 2001Court 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.
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.
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.
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.
Justice Department Asks Supreme Court Not to Take Case, August 31, 2001
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.
Appeals Court Denies Stay of Mandate, Will Return Case to District Court August 24 (Order, 8/17/01)
Microsoft Appeals to Supreme Court (8/7/01)
Question Presented:
News: Microsoft Appeals to Supreme Court, AP 8/7/01
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.
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.Appeals Court Denies Rehearing and Immediate Mandate
Kodak charges Microsoft with blocking Kodak camera software in its new OS.
Microsoft Asks for Partial Rehearing
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.
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. Opinion, June 28, 2001 HTML or PDF
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
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.In the Court of Appeals for the District of Columbia Circuit
Oral Arguments (transcripts now online)
News: 2/27/01 Microsoft Breakup in Doubt, Washington Post
(audio linked from C-SPAN, requires free RealPlayer software)
News: 2/27/01 Microsoft Judge Ripped in Court, Wired News
News: 2/27/01 Court Scrutinizes Jackson, Industry Standard
News: 2/27/01 Questions in Microsoft Appeal Focus on U.S. Judge's Actions, New York Times
News: 2/27/01 Judges Scrutinize Microsoft Ruling, New York Times
News: 2/27/01 Microsoft could win, legal experts say CNet News.com
News: 2/27/01 U.S. Case Against Microsoft Gets Rough Appeals Ride, Reuters
News: 2/26/01 Court Questions Logic in Microsoft Case, Reuters
News: 2/26/01 Oral Arguments Begin in Appeal of Microsoft Antitrust Case, New York Times
D.C. Circuit Will Webcast Oral Argument
Live audio streams of the arguments were offered at ABC News and www.c-span.org.
Oral Argument Scheduled February 26-27 Before Full Court
D.C. Circuit Will Webcast Oral Argument
Live audio streams of the arguments will be offered at ABC News and www.c-span.org
Microsoft Files Final Appeal Brief
Justice Department and States Respond to Microsoft's Appeal
Microsoft Files Opening Appellate Brief
Microsoft Foes Must Submit Single Amicus Brief
Order Granting Motions to Participate as Amicus, November 3, 2000
Appeals Court Cancels Technical Review Session After Both Sides Object
Court of Appeals Notice cancelling review session "upon consideration of the parties' responses." October 26, 2000
Justice Department Response, October 25, 2000
Microsoft Response, October 25, 2000
Court of Appeals Notice scheduling review session on the "fundamentals of automation" with Michael H. Hites, October 18, 2000
Microsoft Court Cancels Computer Primer, Washington Post, October 27, 2000
Appeal Briefing Schedule Set
By order filed October 11, 2000, the court established its briefing and argument schedule.
Microsoft, Government Debate Appellate Briefing Schedule
Appellant Microsoft Corporation’s Motion for an Order Governing Further Proceedings, October 2, 2000
Response of United States of America and the Plaintiff States, October 3, 2000
Microsoft's Reply, October 5, 2000
Supreme Court Denies Expedited Review, Sends Case to Appeals Court
Allowing the D.C. Circuit to review Thomas Penfield Jackson's ruling before passing its own judgment on the case, the Supreme Court Tuesday denied the Government's request for expedited review, 8-1. Justice Breyer dissented, saying "[S]peed in reaching a final decision may help create legal certainty." Justice Rehnquist explained his refusal to recuse himself, saying his son's legal work for Microsoft would not create an appearance of impropriety.
Supreme Court Sends Microsoft Case to Lower Court, 9/26/00, Reuters
United States and Amici Urge Supreme Court to Hear Case
Brief for the United States in Response to Microsoft's Jurisdictional Statement, August 15, 2000 (PDF)
Brief of SIIA and CCIA as Amici Curiae Supporting Supreme Court Jurisdiction, August 15, 2000 (PDF)
News: (8/2/00) Microsoft Moves to Dismiss Bulk of Class Action Suits, Reuters
News: (7/26/00) Microsoft Asks High Court to Pass Case to Lower Court, Industry StandardMicrosoft Asks Supreme Court to Decline Jurisdiction
Microsoft's Jurisdictional Statement Filed with Supreme Court, July 26, 2000
Microsoft high court briefings set , June 22, 2000
Microsoft and the Department of Justice agreed to a briefing schedule before the Supreme Court. Microsoft will file a jurisdictional statement July 26, the government will respond by August 15, and Microsoft may reply by August 22. The Supreme Court will then decide whether to accept the case or send it to the Court of Appeals.
Jackson Certifies Case to Supreme Court, Stays Final Judgment, June 20, 2000
Upon consideration of the joint motion of the plaintiffs for certification pursuant to 15 U.S.C. s29(b), and the opposition of defendant Microsoft Corporation thereto, it is, this 20th day of June, 2000,
Jackson Orders Microsoft Split in Two, June 7, 2000
Defendant Microsoft Corporation’s Reply to Plaintiffs’ Response to Microsoft’s Comments on Their Revised Proposed Final Judgment, June 6, 2000
News (6/6/00): Microsoft Expects to Win Breakup Appeal, ReutersPlaintiffs' Summary Response to Microsoft's Comments on Revised Proposed Final Judgment, June 5, 2000
Jackson Orders Additional Submissions, June 1, 2000
[complete text of Scheduling Order 9]
In accordance with the proceedings of the telephonic conference of June 1, 2000, it is, this 1st day of June, 2000,
ORDERED, that the plaintiffs shall file their response to Microsoft's specific comments as to the form of their revised proposed final judgment by the morning of June 5, 2000; and it is
FURTHER ORDERED, that defendant Microsoft shall have the opportunity to file a response to plaintiffs' reply, if it so chooses, by the morning of June 7, 2000; and it is
FURTHER ORDERED, that all filings aforesaid shall be on the public record.Microsoft's Comments on Plaintiffs' Revised Proposed Final Judgment, May 31, 2000
Plaintiffs' Revised Proposed Final Judgment, May 26, 2000
News (4/25/00): Reports say Justice to stick with split, CBS MarketWatch
News (4/25/00): Government Expected to Stick with Two-Way Split, CNet News
Transcripts now available: morning, afternoon
News: Feds Must Rework Microsoft Plan
News: Microsoft Judge Praises 3-Way Split Proposal
News: Microsoft Sees Setback As Court Mulls Its FateMicrosoft Files Further Reply, Arguing Government Rejected Breakup in 1995
Government Rejects Microsoft Counter-Proposal, May 17, 2000
News (5/22/00): Ready For Round Two, The Industry Standard
Amicus Brief: Computer and Communications Industry Association and Software and Information Industry Association May 19, 2000
Jackson praised this brief in Wednesday's hearing. Amici recommend that Internet Explorer technologies be separated as a third company or open-sourced. They document the failure of the 1995 consent decree in recommending immediate structural remedies.
News (5/18/00): Microsoft proposal derided as "neither serious nor sensible", CNet News
Microsoft Responds to Government Remedy Proposal, May 10, 2000
Microsoft's Proposed Final Judgment (5/10/00)
News (4/10/00): Microsoft Proposes Own Remedies, Wired News
Justice and Plaintiff States Propose Breaking Microsoft in Two
Plaintiffs' Proposed Final Judgment (PDF), April 28, 2000
Defendant Microsoft Corporation’s Reply to Plaintiffs’ Response to Microsoft’s Comments on Their Revised Proposed Final Judgment, June 6, 2000
News (6/6/00): Microsoft Expects to Win Breakup Appeal, ReutersPlaintiffs' Summary Response to Microsoft's Comments on Revised Proposed Final Judgment, June 5, 2000
Jackson Orders Additional Submissions, June 1, 2000
[complete text of Scheduling Order 9]
In accordance with the proceedings of the telephonic conference of June 1, 2000, it is, this 1st day of June, 2000,
ORDERED, that the plaintiffs shall file their response to Microsoft's specific comments as to the form of their revised proposed final judgment by the morning of June 5, 2000; and it is
FURTHER ORDERED, that defendant Microsoft shall have the opportunity to file a response to plaintiffs' reply, if it so chooses, by the morning of June 7, 2000; and it is
FURTHER ORDERED, that all filings aforesaid shall be on the public record.Microsoft's Comments on Plaintiffs' Revised Proposed Final Judgment, May 31, 2000
Plaintiffs' Revised Proposed Final Judgment, May 26, 2000
News (4/25/00): Reports say Justice to stick with split, CBS MarketWatch
News (4/25/00): Government Expected to Stick with Two-Way Split, CNet News
Transcripts now available: morning, afternoon
News: Feds Must Rework Microsoft Plan
News: Microsoft Judge Praises 3-Way Split Proposal
News: Microsoft Sees Setback As Court Mulls Its FateMicrosoft Files Further Reply, Arguing Government Rejected Breakup in 1995
Government Rejects Microsoft Counter-Proposal, May 17, 2000
News (5/22/00): Ready For Round Two, The Industry Standard
Amicus Brief: Computer and Communications Industry Association and Software and Information Industry Association May 19, 2000
Jackson praised this brief in Wednesday's hearing. Amici recommend that Internet Explorer technologies be separated as a third company or open-sourced. They document the failure of the 1995 consent decree in recommending immediate structural remedies.
News (5/18/00): Microsoft proposal derided as "neither serious nor sensible", CNet News
Microsoft Responds to Government Remedy Proposal, May 10, 2000
Microsoft's Proposed Final Judgment (5/10/00)
News (4/10/00): Microsoft Proposes Own Remedies, Wired News
Justice and Plaintiff States Propose Breaking Microsoft in Two
Plaintiffs' Proposed Final Judgment (PDF), April 28, 2000
Jackson Rules Against Microsoft
Conclusions of Law (GPO site) April 3, 2000
News: (4/4/00): Expedited Appeal Proposed by Judge in Microsoft Case, New York Times
News (4/3/00): Judge's Conclusion: MS Guilty, Wired News
News (4/3/00):Microsoft Competitors Hail Ruling, CNet
News (4/2/00): Microsoft and U.S. Unable to Reach Antitrust Accord New York Times
News (4/2/00): Court Ruling Due in Microsoft Case After Talks Fail Reuters
News (3/25/00): Govt Said Unmoved by Microsoft Offer, AP
News (3/25/00): Microsoft Is Said to Offer Plan to Restrain Business
Practices, New York Times
News (3/24/00): Microsoft Offers Antitrust Deal, AP
News (3/24/00): USA Today Expects Microsoft Settlement Offer Friday, Reuters
News (3/23/00): Microsoft, DOJ may be closer to settling antitrust suit, CNetOral Arguments on Conclusions of Law, Feb. 22, 2000
Morning and Afternoon Transcripts.
Microsoft Surreply to Plaintiffs' Proposed Conclusions of Law, Feb. 1, 2000
News (1/27/00): Conservative Think Tank Recommends Microsoft Breakup
Plaintiffs Respond to Microsoft Proposed Conclusions of Law, Jan. 25, 2000
News (1/25/00): Microsoft Java Injunction Reinstated, Based in Contract, not Copyright
Microsoft Submits Proposed Conclusions of Law Jan. 18, 2000
Washington Post (1/13/00): DOJ Reportedly Plans to Demand Microsoft Breakup
The Justice Department plans to demand a breakup of Microsoft into three separate companies, according to a report by the Washington Post. Details on the proposed remedy for Microsoft's monopoly remain unclear, but the consensus among news sources appears to be that the government prefers division of the company to the opening of source code or conduct limitations that would require monitoring. Microsoft is expected to reject the proposal, which could end ongoing settlement negotiations or prompt modification of the plan.
According to unnamed sources, the government prosecutors have reached consensus on a proposal to break Microsoft into an operating system company and an applications company, leaving unclear where Microsoft's other business areas such as Internet content would go. Microsoft is expected to reject the proposal.
USA Today report, CNN.com report on USA Today report
MSNBC: Justice Department says report "doesn't accurately represent our views"
Judge Jackson overruled Microsoft's objection to his request that Berkman Prof. Larry Lessig write an amicus brief in the case. Prof. Lessig's brief will focus on the issue of technological tying. Each side may also submit one amicus brief. Microsoft's objection cited this page, and the course for which it was posted, as evidence of Prof. Lessig's "interest" in the case.
News (or non-news, 12/14/99): Justice Department Says Rumors of Imminent Settlement Unfounded
Plaintiffs Submit Joint Proposed Conclusions of Law Dec. 6, 1999
News (12/3): Justice Department retains Greenhill & Co. LLC for advice on the financial aspects of remedies under consideration.
News (11/30): Parties met with Judge Posner for about two hours, and said they were under orders not to discuss the proceedings.
Adding to Microsoft's incentives to settle are a rash of class action lawsuits against the company. Under section 16 of the Sherman Antitrust Act, a final judgment against a defendant in an antitrust action by the United States is "prima facie evidence against such defendant" in any other antitrust proceeding involving the same issues. In other words, if Microsoft does not settle and the findings are made part of a final judgment, private parties can use them as proof of consumer harm.
Jackson appoints Judge Posner as mediator for the parties' negotiations, Nov. 19, 1999
In an order Friday [PDF or
WordPerfect], Jackson appointed Judge Richard Posner to act in a private capacity in voluntary settlement talks. Posner is chief judge of the Seventh Circuit Court of Appeals and teaches at the University of Chicago Law School. Jackson also issued a scheduling order [PDF or
WordPerfect] in which he asked Berkman Professor Lawrence Lessig to write an amicus brief.
Judge Thomas Penfield Jackson Releases Findings of Fact Nov. 5, 1999
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.
San Jose Mercury News coverage
Washington Post coverage
Microsoft press conference: 56k audio/video, 28k audio/video, or 14.4 audio and Freedom to Innovate site.
Justice Department press conference: RealVideo