[Congressional Record Volume 144, Number 84 (Wednesday, June 24, 1998)]
[Senate]
[Page S6991]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            MICROSOFT WINS APPEALS COURT DECISION, DOJ LOSES

  Mr. GORTON. Mr. President, yesterday a three judge United States 
Appeals Court panel overturned the preliminary injunction issued 
against Microsoft last December by U.S. District Court Judge Thomas 
Penfield Jackson. This ruling by the Appeals Court is a major victory 
for Microsoft and its supporters. In fact, in my opinion, it is so 
significant as to make the Department of Justice's current case against 
Microsoft even more dubious than it was at the time of filing.
  The basic question before the panel was whether or not Microsoft 
violated antitrust law and a 1995 consent decree by integrating its web 
browser, Internet Explorer, into its Windows 95 operating system. The 
panel ruled that Microsoft's actions did not violate the consent decree 
and that Microsoft should indeed be allowed to integrate new and 
improved features into Windows because such integration benefits 
consumers.
  The Department of Justice has just suffered a major defeat.
  The ruling comes only a few weeks after the Antitrust Division of the 
Department of Justice filed a new case against Microsoft alleging 
anticompetitive behavior. The central point of the new case is 
Microsoft's integration of the Internet Explorer into Windows 98.
  In the new case, the Department of Justice wants Microsoft either to 
remove Internet Explorer from Windows 98 or add a competing browser 
from rival Netscape into that Windows 98 program. Department of Justice 
lawyers claim that Internet Explorer is a separate product and that its 
integration into Windows 98 is a violation of antitrust law. 
Interestingly enough, there are other browser manufacturers, smaller 
than Netscape, who don't seem to have Department of Justice's ear or 
sponsorship.
  But in the opinion issued yesterday by the Appeals Court panel, the 
judges ruled that Microsoft's product integration meets the court's 
requirement that product innovation bring benefits to consumers. The 
panel calls Microsoft's software design ``genuine integration'' and 
rules that the inclusion of Internet Explorer in Window's 95 is not a 
violation of the consent decree.
  Further, the panel wrote that, ``Antitrust scholars have long 
recognized the undesirability of having courts oversee product design, 
and any dampening of technological innovation would be at cross-
purposes with antitrust law.''
  It is quite clear from this ruling that the U.S. Appeals Court for 
the District of Columbia believes that Microsoft is not violating the 
law by integrating Internet Explorer into its operating system 
software. That integration is beneficial to consumers and any attempt 
to stifle such innovations is harmful to consumers.
  I see very little difference between the new case and the case just 
rejected by the Appeals Court. It is time for the Department of Justice 
to pick up its marbles and go home, Mr. President.

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