[Congressional Record Volume 144, Number 86 (Friday, June 26, 1998)]
[Senate]
[Pages S7231-S7235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                JUDICIARY COMMITTEE'S MICROSOFT INQUIRY

  Mr. HATCH. Mr. President, I rise this morning to speak for just a few 
moments on the Senate Judiciary Committee's progress with respect to 
our Microsoft inquiry and, more specifically, to share my perspectives 
on how Microsoft has conducted itself before the committee; to discuss 
some important developments from this past week; and to discuss the 
committee's upcoming plans with respect to the Microsoft issue.
  This week has been a significant one. Just yesterday, Windows 98 was 
rolled out to consumers. I might note that, contrary to Microsoft's 
emphatic protests last month that a federal lawsuit would have 
catastrophic consequences for the PC industry, the Justice Department 
did file suit, and, lo and behold, the sky has not fallen on either 
Microsoft or the computer industry. Meanwhile, the Department of 
Justice encountered a set back in its original consent decree case. 
And, something which got less attention in the midst of these other 
developments, the Software Publisher's Association, the 1,200 member 
software industry association of which Microsoft is a member, released 
a report describing how, if allowed to proceed with its tried and true 
market practices, Microsoft will extend its current desktop monopoly to 
control the market for network servers--a technology which provides the 
foundation for the Internet and corporate intranets. So this is 
important. Microsoft is attempting to extend its current monopoly of 90 
percent of the underlying operating system to control all the market 
for network services, both the Internet and corporate intranets.
  So, for those who have looked seriously at the Microsoft issue, I 
believe it is clear that the issue is about much more than just the 
browser. In fact, I have never thought that the browser issue was the 
most important issue at all, although it is important if you look at 
all of the ramifications of the browser problems.
  It is about whether one company will be able to exploit its current 
monopoly in order to control access to, and commerce on, the Internet; 
whether one company will control the increasingly networked world in 
which we are coming to conduct our businesses and in which we are 
coming to lead our lives.
  Indeed, the reach of Microsoft's monopoly power is on the verge of 
extending well beyond markets which we have traditionally thought of as 
software or technology markets, and the effects of this expansion will 
be felt not just by the software companies who have traditionally 
competed with Microsoft, but by a broad swath of U.S. consumers. As The 
New York Times yesterday observed,

       Right now Microsoft is expanding into myriad Internet 
     businesses, including news, entertainment information, 
     banking, financial transactions, travel bookings and other 
     services. Since consumers have no choice but to buy the 
     Windows operating system when they buy personal computers, 
     Microsoft is in a position to give such a big advantage to 
     its own software that any other software maker would not be 
     able to compete.

  I agree with the Times's conclusion. They went on to say: ``It is not 
healthy for the courts to grant Microsoft a permanent chokehold over 
the entire expanding world of the Internet.'' I ask unanimous consent 
that this New York Times editorial be printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                [From the New York Times, June 25, 1998]

                      A Mistaken Microsoft Ruling

       One month after the Justice Department filed its sweeping 
     antitrust suit against Microsoft, a Federal appeals court has 
     issued a deeply flawed ruling that may weaken the 
     Government's case. The three-judge panel seemed to adopt 
     Microsoft's arrogant claim that it has the right to 
     incorporate its browser, or any other software, into its 
     Windows operating system as long as doing so offers certain 
     advantages to consumers. But if the thinking behind this 
     decision prevails, it could permit Microsoft to use its 
     monopoly power to crush competitors throughout the Internet. 
     The Justice Department thus needs to mount a vigorous 
     counterattack invoking the full force of antitrust laws.
       The Justice Department can argue that the appeals court 
     ruling need not determine

[[Page S7232]]

     the outcome of its larger antitrust case against Microsoft. 
     That is because it was based on a narrow case brought by the 
     Justice Department last year, when it charged that Microsoft 
     violated a 1995 consent decree affecting the marketing of 
     Windows 95. In that decree, Microsoft agreed not to condition 
     its sale of Windows to computer makers on the sale of other 
     software, but could improve Windows by integrating other 
     functions into it.
       In December a Federal district judge ordered Microsoft to 
     split off its browser, the software used to navigate the 
     World Wide Web, from Windows 95. Now the appeals court has 
     said the browser can be included, because with it Windows 
     became a new and improved integrated product.
       The problem with the appeals court's reasoning is that 
     virtually any new form of software can be integrated into the 
     basic Windows system, arguably improving it. Right now, 
     Microsoft is expanding into myriad Internet businesses, 
     including news, entertainment information, banking, financial 
     transactions, travel bookings and other services. Since 
     consumers have no choice but to buy the Windows operating 
     system when they buy personal computers, Microsoft is in a 
     position to give such a big advantage to its own software 
     that any other software maker would not be able to compete.
       Because the court of appeals ruling was based on the 
     meaning of the 1995 consent decree, the Justice Department 
     has a chance to reverse its thinking in its larger case 
     against Microsoft, which is to come to trial in September. In 
     that case, the judge will be asked to look beyond the consent 
     decree to the broad principles of antitrust law, and to look 
     as well at Microsoft's predatory practices. The department 
     has assembled impressive evidence that Microsoft deliberately 
     used its monopoly in Windows to crush its rival Netscape, 
     which was selling a browser that many consumers preferred to 
     the one made by Microsoft.
       The appeals court's decision referred to the general 
     ``undesirability of having courts oversee product design.'' 
     Judge Patricia Wald, in her dissent, correctly warned that 
     the decision ``would seem to permit'' Microsoft to 
     incorporate ``any now-separate software product into its 
     operating system by identifying some minimal synergy'' as a 
     result. It is not healthy for the courts to grant Microsoft a 
     permanent chokehold over the entire expanding world of the 
     Internet.

  Mr. HATCH. I believe this is one of the more important policy issues 
of our day, one which will have far reaching ramifications for years to 
come, and that it would be remiss for lawmakers and law enforcers not 
to be paying close attention to these issues. So, when we return from 
the July recess, I plan to hold further hearings on competition in the 
digital age. In particular, I plan for the committee to examine market 
practices and developments in the so-called ``enterprise'' or back 
office software market, and more generally to examine practices and 
developments affecting access to, and transactions on the Internet. 
Specific hearing dates and witness lists will be released when 
finalized.
  While I will reserve comments regarding Microsoft's tactics in these 
markets until after we learn more about this issue next month, I do 
have a few comments regarding Microsoft's tactics in Washington over 
the last several months. In a nutshell, I would offer my view that 
Microsoft has, regrettably, seen fit to deploy a massive pr campaign 
grounded in spin control and misdirection, as opposed to engaging the 
American public, on the basis of the facts and the merits surrounding 
all of these issues.
  For starters, I find it rather surprising that any one company would, 
rather than seeking to prevail on the merits, instead have the hubris 
to try and use the appropriations process to ``go on the offensive'' 
and seek to restrain a federal law enforcement agency that has an 
obligation to enforce the laws, as was recently reported. I trust that 
my colleagues in this Chamber would have little difficulty in seeing 
this as anything but an effort to interfere with an ongoing law 
enforcement action. I can certainly appreciate my colleagues wanting to 
go to bat for their constituent, but I would find it surprising and 
disturbing were they or any other Senators swayed to permit this body 
to seriously consider such an effort to interfere with the 
appropriations system hope and cut out funds for the Justice Department 
division on antitrust. I hope that they don't continue in those efforts 
if those reports are true.
  More fundamentally, though, I am troubled that Microsoft has seen fit 
to engage in a game of hide the ball, as opposed to putting their best 
case forward on the facts and on the merits. This issue has nothing to 
do with the government trying to design software. It is about trying to 
preserve competition and innovation--the hallmark of a free market--in 
an area that is absolutely critical to the future of our economy and I 
guess you have to pay the world. It is critical to our economy, as 
well. It is about getting to the bottom of the true facts here so as to 
understand how best to accomplish this fundamental objective. Frankly, 
if the facts truly aren't so bad, I would expect Microsoft to be happy 
to explain them.
  One of the issues I have been concerned with since last fall, for 
example, happens to be the restrictive contracts Microsoft has imposed 
on various Internet firms seeking placement on the ubiquitous Windows 
desktop. Rather than admit that they have indeed imposed such terms, 
and explain to us why we should not find them objectionable, Microsoft 
has consistently sought to avoid the existence and implications of 
these contract terms. When pressed on the issue, Microsoft announced on 
the eve of our March hearing that it would no longer enforce these 
restrictive covenants or these restrictive contract provisions, instead 
of explaining why these provisions were legal. But, when the Justice 
Department filed its suit nearly three months later, we learn not only 
that these restrictive and exclusionary provisions existed, but that 
Microsoft in fact continues to enforce them with respect to the biggest 
Internet firms such as AOL and Compuserve, notwithstanding Microsoft's 
prior representations to the Committee that these very provisions had 
been removed from its contracts ``on a worldwide basis.''
  These are just a few examples where Microsoft has been less than one 
hundred percent candid and forthright. There are others. Committee 
staff has prepared a brief report outlining some of the areas where I 
believe Microsoft could and should have been more forthright with the 
Committee.
  As the Committee continues its inquiry, I plan to give Microsoft a 
fair opportunity to be heard on these issues. But I think they should 
be heard on the record, rather than through carefully orchestrated, 
multi-million dollar pr campaigns that are more concerned with blurring 
the true facts than explaining them. So I hope that, when given the 
opportunity to be heard on the record, Microsoft chooses to be somewhat 
more candid with the American people than it has been so far.
  I ask unanimous consent that a report prepared by the majority staff 
of the Senate Judiciary Committee, dated June 26, 1998, be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[A Report Prepared by Majority Staff, Senate Judiciary Committee, June 
                               26, 1998]

  Microsoft Statements to the United States Senate Judiciary Committee


                              introduction

       Throughout the course of the Senate Judiciary Committee's 
     ongoing inquiry into competition in the software industry, 
     Microsoft has continually sought to steer the Committee away 
     from important but potentially damaging areas of inquiry. At 
     times, Microsoft has relied on factually misleading or 
     inaccurate statements to accomplish this objective. A 
     sampling of such statements, and a brief assessment of their 
     accuracy, are provided in the following report.


        i. exclusionary licenses with internet service providers

       At the Committee's November 4, 1997 hearing, Senator Hatch 
     raised concerns about the exclusive nature of Microsoft's 
     licenses with Internet Service Providers (ISPs) that appeared 
     to have the effect of limiting ISP's freedom to promote and 
     distribute competing browsers. Senator Hatch specifically 
     cited a number of provisions in Microsoft's license with 
     Earthlink.
       In response, Microsoft Senior Vice President William Neukom 
     wrote Senator Hatch, stating that: ``The implication at the 
     hearing that Microsoft's agreement with Earthlink was somehow 
     directed at locking out competing software is plainly refuted 
     by the facts.
       ``. . . the ISP is free at all times to distribute and 
     promote any browser software to any customers not referred by 
     Microsoft.'' \1\

     \1\ Footnotes at end of report.

       In addition, Microsoft Chairman Bill Gates testified at the 
     Committee's March 3 hearing that Microsoft's ISP agreements 
     ``are not exclusive.'' \2\ and reiterated Mr. Neukom's 
     suggestion that those restrictions Microsoft did impose on 
     ISPs only applied to customers referred to the ISP by 
     Microsoft.\3\
       When pressed by Committee staff to square these assertions 
     with the plain language of the Earthlink license, Microsoft 
     officials stated that staff was overlooking the fact that the 
     Committee's version of the contract

[[Page S7233]]

     contained redactions. The redactions referred to, however, 
     turned out to be largely irrelevant and Microsoft's 
     assertions cannot be squared with the unredacted language of 
     the contracts.
       First, Microsoft's restriction on an ISP's freedom to 
     promote competing browsers plainly is not limited, as Messrs. 
     Neukom and Gates suggested, to customers referred to the ISP 
     by Microsoft. Microsoft's contracts include blanket 
     prohibitions, not limited to customers referred by Microsoft, 
     stating that the ISP ``shall not advertise or otherwise 
     promote any non-MS browser more than 10 to 20% of total 
     impressions,'' and that the ISP ``shall not display any logo 
     for, or maintain a link to, a non-MS web browser on [ISPs] 
     home page for the ISP Service, on the Start Page, or on any 
     [ISP] home page for any other Internet access service offered 
     by [the ISP].'' \4\ (Emphasis added). Messrs. Gates and 
     Neukom's assertion that ``the ISP is free at all times to . . 
     . promote any browser software to any customers not referred 
     by Microsoft'' is simply false.
       Second, and more importantly, Microsoft required its ISP 
     licensees, in order to avoid being removed from the Windows 
     ISP referral, to ensure that a high percentage (between 75% 
     and 85%) of total browser shipments were Internet 
     Explorer.\5\ Independent of other restrictions in Microsoft's 
     ISP contracts, an ISP which is obliged to guarantee that 85% 
     of the browsers it distributes are Microsoft browsers clearly 
     is not, as Mr. Neukom stated, ``free at all times to 
     distribute . . . any browser software to any customers not 
     referred by Microsoft.''
       In sum, it is inconceivable how licensing provisions that 
     prevents ISPs from promoting competing browsers, and actually 
     require that ISPs ensure that 75-85% of its browser shipments 
     are Microsoft's, are not ``exclusive'' and directed precisely 
     at ``locking out competing software.'' Indeed, this 
     conclusion is only buttressed by the fact that, as a top 
     strategic priority aimed at ``Winning the Internet platform 
     battle,'' Microsoft executives directed its sales force to 
     sign ``[e]xclusive licensing of Internet Explorer to top 5 
     [Internet] Access providers.'' \6\


          II. Withdrawal of Exclusive ISP Licensing Provisions

       When the Committee persisted in questioning how these ISP 
     contract provisions were anything other than exclusionary and 
     designed to ``lock out competing software,'' Microsoft, 
     instead of providing any plausible, substantive response, 
     stated that it had agreed to remove these provisions from its 
     contracts. On the eve of the Committee's March 3 hearing, 
     Microsoft provided the Committee with a letter stating that 
     the contract provisions at issue had been deleted from its 
     ISP agreements ``on a worldwide basis.'' \7\ When questioned 
     on the subject by Senator Hatch at the Match 3 hearing, Mr. 
     Gates states that ``we agreed to waive'' the ISP contract 
     provisions that had raised concerns.\8\ The clear implication 
     of Microsoft's letter to the Committee, and Mr. Gates's 
     testimony, was that Microsoft would no longer prevent firms 
     that provide Internet access from promoting or distributing 
     alternative browsers as a condition of gaining placement on 
     the Windows desktop.
       Notwithstanding Mr. Gates's testimony, and Microsoft's 
     assertion to the Committee that it had removed these 
     restrictive contract terms ``on a worldwide basis,'' 
     Microsoft had apparently continued to enforce the most 
     restrictive of its contract terms with the largest Internet 
     access firms, including AOL, CompuServe and Prodigy.\9\ In 
     fact, the firms still restricted from distributing and/or 
     promoting non-Microsoft browsers represent over 53% of North 
     American Internet users.\10\ Given the fact that more than 
     half of U.S. consumers accessing the Internet are still 
     subject to Microsoft's restrictive and exclusionary contract 
     terms, Microsoft's failure to, at a minimum, qualify or 
     clarify its officially asserted waiver of these provisions 
     can be considered nothing other than a sleight of hand.


                    III. ability to switch browsers

       In his testimony before the Judiciary Committee, Mr. Gates 
     sought to limit the relevance of any restrictions it might 
     impose on ISPs by suggesting that, regardless of what browser 
     was bundled by an ISP, the ISP's customers ``could always go 
     out and switch their browser. There is no product that is 
     easier to switch in the world today than a browser. It takes 
     about five seconds to go up and click and go get the Netscape 
     browser or the Microsoft browser or any other browser that is 
     out there on the Internet.\11\
       In reality, it is simply not possible to switch browsers in 
     five seconds. To execute the procedure referred to by Mr. 
     Gates, a user would have to launch Internet Explorer, find 
     that Netscape homepage, find an option for downloading, 
     Netscape Navigator, and executive the download. Using a 
     typical 28.8 K modem, it took the Committee systems 
     administrator over two hours merely to complete the download 
     process. The reality is that all but the most sophisticated 
     Internet users are likely to forego the time and effort 
     necessary to download a browser off the Internet when they 
     can instead use the browser which comes bundled with their 
     Internet service of PC. Thus, Mr. Gates's attempt to minimize 
     the exclusionary impact of its ISP contracts is misleading at 
     best.


        IV exclusive licensing provisions with content providers

       Microsoft has also imposed restrictions on the ability of 
     firms providing Internet content (``content providers'' or 
     ``ICPs'') to promote, distribute, or render payment of non-
     Microsoft browsers. Here again, Mr. Gates has been less than 
     candid about these resctictions. At the Judiciary Committee's 
     March 3 hearing, for example, Mr. Gates testified: ``At far 
     as Internet content providers go, let me be very clear about 
     that. There is nothing that restricts anybody who has content 
     relationships with use from developing sites that exploit any 
     browser out there in the marketplace. Those people are free 
     to do as they choose in terms of developing sites, and they 
     have lot of ways they can promote the other sites that they 
     do.\12\
       This statement, however, glossed over the very significant 
     fact that, while Microsoft might not have been able to 
     explicitly prohibit a content provider from developing 
     content that can be retrieved with using nonMicrosoft 
     browsers, it did manage to split its leverage over content 
     providers, to get them to agree, as a condition for obtaining 
     placement on the Windows desktop, to various restrictions 
     designated at ``locking out'' competing browser platforms. 
     For example, the Justice Department learned that, contrary to 
     Mr. Gates's testimony, Mirosoft's contracts with the largest 
     and most popular ICPs in fact do require those ICPs 
     to promote their Microsoft channel exclusively, and do 
     restrict the ICPs' abilities to deal with ``Other 
     Browsers.'' As the Justice Department's brief explains:
       ICPs are not allowed to compensate in any manner a producer 
     of an ``Other Browser''--including by distributing its 
     browser--for the distribution, marketing, or promotion of the 
     ICP's content, effectively precluding payment for a channel 
     on Netscape's competing Netcaster product;
       Even if an ``Other Browser'' (namely Netscape) 
     distributes--without compensation--an ICP's content through 
     Netcaster, the ICP is still prohibited by its Microsoft 
     contract from promoting or advertising the existence of its 
     Netcaster channel and from licensing its logos to Netscape in 
     order for Netscape to promote and highlight the existence of 
     that content for Netcaster;
       ICPs are not allowed to promote any ``Other Browser'' 
     products;
       Microsoft restricts the distribution of ``Other Browsers'' 
     by requiring that the ICP ``distribute Internet Explorer and 
     no Other Browser as an integral part'' of an ICP Channel 
     Client for the Win32, Win16 or Macintosh platforms; and
       ICPs must create channel content exclusively viewable with 
     Internet Explorer, and optimize many of their websites to 
     take advantage of Internet Explorer--specific extensions to 
     web standards (such as HTML) and Windows-specific technology 
     (such as Active X).\13\
       Thus, Mr. Gates's testimony that Microsoft does not 
     restrict content providers' ability to develop for, or 
     promote, competing browsers, is flatly contradicted by the 
     evidence unearthed by the Justice Department. Moreover, when 
     pressed on this issue at the Committee's March 3 hearing, Mr. 
     Gates went to great lengths to avoid conceding that Microsoft 
     imposed such restrictions, even when posed with direct 
     questions and asked to give a ``yes-no'' answer. For example, 
     when Senator Hatch repeatedly questioned whether Microsoft 
     prevented any of its content partners from advertising or 
     promoting Netscape, Mr. Gates persisted in giving non-
     responsive answers and avoiding the simple ``yes'' or ``no'' 
     answer that was requested. Only after Senator Hatch, visibly 
     frustrated, repeated the question for a fifth time, did Mr. 
     Gates finally concede albeit in a grossly incomplete fashion, 
     that Microsoft did in fact impose restrictions on Internet 
     Content Providers. The colloquy was as follows:
       Q: Mr. Gates, you have been somewhat hard to nail down on a 
     very specific question, and I would appreciate just a yes or 
     no, if you can. Do you put any limitation on content 
     providers that limit them . . . for advertising or promoting 
     Netscape? Yes or no, if you can.
       A: Every Internet content provider that has a business 
     relationship with Microsoft is free to develop content that 
     uses competitors' platforms and standards.
       Q: But my question is do you put any limitations on content 
     providers that limit them . . . for doing any advertising or 
     promoting of Netscape?
       A: Well, understand, there are more people in the Netscape 
     channel guide than there are on the Microsoft channel guide.
       Q: How about Microsoft: Do they put limitations or 
     restrictions on people from advertising and promoting 
     Netscape?
       A: I am not aware of any limitation that prevents them from 
     doing content that promotes Netscape.
       Q: Do you use your exclusive arrangement with the 
     companies--do you use that as leverage to stop them from 
     advertising or promoting Netscape?
       A: I don't--we don't-- . . .
       Q: Does Microsoft then limit--place any limit on any 
     content providers that limits them . . . for advertising or 
     promoting Netscape or any other competitor?
       A: I said earlier that on the pages that you link to 
     through the channel guide--that on those pages you don't 
     promote the competitive product, but that is a unique URL. 
     You are free to promote their content in quite a variety of 
     ways, but not off the specific page that we link to.\14\
       Mr. Gates's steadfast refusal to answer Senator Hatch's 
     question prevented the

[[Page S7234]]

     Members of the Committee from discovering what would be 
     revealed in the Justice Department suit nearly three months 
     later--a broad range of exclusionary restrictions that 
     Microsoft imposes on content providers. Indeed, contrary to 
     Mr. Gates's testimony, it appears that Microsoft does, in 
     fact, restrict content providers from promoting content 
     developed for competing browsers, and from promoting or 
     distributing other browsers. These practices all are, to use 
     Mr. Neukom's own words, clearly designed at ``locking out 
     competing [browser] software.''


V. Strategic Motivation Behind ``Integration'' of Windows and Internet 
                                Explorer

       An issue central to understanding the ``browser wars'' and 
     the nature of competition in the software industry generally 
     is whether Microsoft's decision to link its browser to 
     Windows was a response to consumer demand and preferences, or 
     an effort to lock competing browsers out of the market. A 
     December 20, 1996 email by Microsoft Senior Vice President 
     Jim Allchin appears to shed light on this question. It reads 
     as follows: ``Ensuring that we leverage Windows. I don't 
     understand how IE is going to win. The current path is simply 
     to copy everything that Netscape does packaging and product 
     wise . . . My conclusion is that we must leverage Windows 
     more, Treating IE as just an add-on to Windows . . . [is] 
     losing our biggest advantage--Windows market share . . . We 
     should first think about an integrated solution. That is our 
     strength? \15\
       In follow-up questions to the Committee's March 3 hearing, 
     Senator Hatch inquired whether Mr. Allchin was ``urging that 
     Internet Explorer be integrated into Windows as a strategic 
     marketing measure intended to compete with Netscape Navigator 
     by ensuring that all Windows users would automatically 
     receive Internet Explorer as well.'' In his written response, 
     Mr. Gates claimed that this interpretation was inaccurate, 
     stating that ``Mr. Allchin's e-mail had nothing to do with 
     the distribution of Internet Explorer. . . .''\16\
       Mr. Gates' assertion is puzzling at best. Mr. Allchin's 
     questioning ``how IE is going to win'' and criticism of 
     Microsoft's current plan ``simply to copy everything that 
     Netscape does packaging and product wise'' certainly appears 
     to be concerned with nothing other than ``the distribution of 
     Internet Explorer.'' Indeed, Mr. Allchin's view that 
     Microsoft should tie Internet Explorer to Windows in order to 
     gain an advantage over Netscape is abundantly clear in an E-
     mail he wrote only two weeks after the above-quoted E-mail. 
     In this second E-mail, Allchin wrote: ``You see browser share 
     as job 1 . . . I do not feel we are going to win on our 
     current path. We are not leveraging Windows from a marketing 
     perspective. . . . We do not use our strength--which is that 
     we have an installed base of Windows and we have a strong OEM 
     shipment channel for Windows. Pitting browser against browser 
     is hard since Netscape has 80% marketshare and we have 20% . 
     . . I am convinced we have to use Windows--this is the one 
     thing they don't have. . . . (emphasis added) \17\
       Indeed, Allchin's view was echoed by other Microsoft 
     employees.
       Christian Wildfeuer, for example wrote as follows: ``It 
     seems clear that it will be very hard to increase browser 
     market share on the merits of IE 4 alone. It will be more 
     important to leverage the OS asset to make people use IE 
     instead of Navigator.\18\
       It is, in short, difficult to accept Mr. Gates' summary 
     assertion that ``Mr. Allchin's e-mail had nothing to do with 
     the distribution of Internet Explorer.''


                        VI. The Windows Monopoly

       Notwithstanding the fact that Microsoft has a 90% plus 
     market share in the market for personal computer operating 
     systems, Mr. Gates denies that Microsoft enjoys a monopoly in 
     this market. In an effort to support his position, Mr. Gates 
     has repeatedly made reference to the fact that prices in the 
     computer industry have been falling. For example, in his oral 
     testimony before the Judiciary Committee, Mr. Gates stated 
     that: ``Another sign of a healthy, competitive industry is 
     lower prices. The statistics show that the cost of computing 
     has decreased ten-millionfold since 1971.''
       (Mr. Gates repeated this statistic in a recent Economist 
     piece, where he also stated that the price of Windows has 
     remained ``relatively stable.'')\20\ And, in his written 
     testimony, Mr. Gates proudly declared that ``Prices for 
     personal computers continue to fall, even as PC's become more 
     powerful and offer greater features than ever before . . . 
     Microsoft has been an active participant in providing the 
     incredible price/performance gains that distinguished the 
     computer industry.\21\
       What Mr. Gates fails to mention, however, is that the price 
     of Windows has steadily increased since its introduction to 
     the marketplace. According to one news report, the price 
     Microsoft charges OEMs for a PC operating system has risen 
     from $12-$15 per copy of DOS, to $35 for Windows 3.x, to 
     approximately $60-$70 for Windows 95.\22\ Four OEMs have 
     reported that Microsoft will further raise the price of 
     Windows 98 \23\ and it is expected that Windows NT 5.0 (which 
     eventually will replace Windows) will cost OEMs approximately 
     $130 per copy.\24\ Thus, while the cost of computing has 
     ``decreased ten-millionfold,'' the price of a Microsoft 
     operating system has increased roughly ten-fold--from $12 to 
     $130. This market departure from an overwhelming industry 
     trend of decreasing prices is a classic sign of monopoly 
     power.
       While it is, of course, true that new features and 
     functionality have been added to Microsoft's operating 
     systems over this period, the same clearly can be said of 
     other computing components and computing generally. Whereas a 
     single transistor cost $5-$6 in 1959, today $6 will buy a 16 
     megabit DRAM chip with sixteen million transistors.\25\ And, 
     while Intel's first Pentium chip, with 3.1 million 
     transistors and a speed of 60 megahertz, sold for $878 in 
     1993, the Pentium II, with 7.5 million transistors and a 
     speed of 233 megahertz, now sells for $268.\26\
       Thus, Mr. Gates's use of the fact that the price of 
     computing has fallen dramatically to imply that Microsoft 
     operating systems are priced competitively is quite 
     misleading. In fact, Microsoft's monopoly power in the 
     operating system market has enabled it not just to raise 
     operating system prices while the price of other computing 
     components has dropped precipitously, but in fact has allowed 
     Microsoft to reap huge monopoly profits. According to the 
     Wall Street Journal, for example, Microsoft earns a 
     staggering 92% gross and 50% operating margin in its Windows 
     business.\27\


     VII. Competition and Choice in the PC Operating System Market

       In another effort to rebut the seemingly self-evident 
     proposition that Microsoft's 90%-plus market share for PC 
     operating systems amounts to a monopoly, Mr. Gates also 
     stated to the Committee that, ``if Microsoft attempted to 
     raise its prices beyond competitive levels, powerful 
     operating system competitors like IBM, Sun Microsystems, 
     Novell, Apple or a new entrant to the business could satisfy 
     consumer demand instantly.'' \28\
       This sweeping statement is plainly at odds with the 
     economic reality, attested to by OEMs, that, given 
     Microsoft's monopoly and the fact that such a vast majority 
     of desktop applications are written for Windows,\29\ computer 
     manufacturers clearly do not have the choice of turning to an 
     operating system other than Windows. Indeed, numerous 
     representatives from computer manufacturers have testified 
     that they simply have no choice but to ship computers with 
     Windows, and that there is no other operating system which a 
     computer manufacturer could or would use as a substitute to 
     Windows.
       Packard Bell executive Mal Ransom testified that there were 
     no ``commercially feasible alternative operating systems'' to 
     Windows 98.
       Micron executive Eric Browning asserts: ``I am not aware of 
     any other non-Microsoft operating system product to which 
     Micron could or would turn as a substitute for Windows 95 at 
     this time.''
       Hewlett Packard executive John Romano testified that HP had 
     ``absolutely no choice'' except to install Windows on its 
     PCs.
       Gateway executive James Von Holle testified that Gateway 
     had to install Windows because ``We don't have a choice.''
       Mr. Von Holle has testified that if there were competition 
     to Windows, he believed such competition ``would drive prices 
     lower'' and promote innovations.\30\


                               footnotes

     \1\ November 12, 1997 Letter to Chairman Hatch from William 
     H. Neukom, Microsoft Senior Vice President, Law and Corporate 
     Affairs. (Appendix A)
     \2\ Senate Judiciary Committee Transcript of Proceedings, 
     ``Market Power and Structural Change in the Software 
     Industry,'' March 3, 1998, p. 78. (Appendix B)
     \3\ Senate Judiciary Committee Transcript of Proceedings, 
     ``Market Power and Structural Change in the Software 
     Industry,'' March 3, 1998, p. 62. (Appendix C)
     \4\ Provision 7 of Earthlink License Agreement, see February 
     18, 1998 Letter to Manus Cooney, Chief Counsel and Staff 
     Director, Senate Judiciary Committee, from Marc Berejka, 
     Federal Regulatory Affairs Manager, Corporate Attorney, p. 3. 
     (Appendix D)
     \5\ U.S. v. Microsoft Corporation, Memorandum of the United 
     States In Support of Motion for Preliminary Injunction, May 
     18, 1998, at 30. (Appendix E)
     \6\ Brad Chase Memo, ``Winning the Internet Platform 
     Battle,'' April 4, 1996, p. 1. (Appendix F)
     \7\ February 28, 1998 Letter to Manus Cooney, Chief Counsel 
     and Staff Director, Senate Committee on the Judiciary, from 
     Jack Krumholtz, Director Federal Government Affairs, Senior 
     Corporate Attorney. (Appendix G)
     \8\ Senate Judiciary Transcript of Proceedings, p. 62. 
     (Appendix C)
     \9\ U.S. v. Microsoft Corporation, Memorandum of the United 
     States In Support of Motion for Preliminary Injunction, May 
     18, 1998, at 31 and note 25. (Appendix H)
     \10\ Id., note 25. (Appendix H)
     \11\ Senate Judiciary Committee Transcript of Proceedings, p. 
     62 (Appendix C)
     \12\ Senate Judiciary Transcript of Proceedings, p. 62-63. 
     (Appendix C)
     \13\ U.S. v. Microsoft Corporation, Memorandum of the United 
     States In Support of Motion for Preliminary Injunction, May 
     18, 1998, at 35-36. (Appendix I)
     \14\ Senate Judiciary Transcript of Proceedings, p. 176-179. 
     (Appendix J)
     \15\ Response of Bill Gates to Supplemental Questions from 
     Senator Hatch, p. 15. (Appendix K)
     \16\ Response of Bill Gates to Supplemental Questions from 
     Senator Hatch, p. 16, (Appendix K)
     \17\ U.S. v. Microsoft Corporation, Complaint, May 18, 1998, 
     at 8. (Appendix L)
     \18\ U.S.V. Microsoft Corporation, Memorandum, at 25. 
     (Appendix M)
     \19\ Senate Judiciary Committee Transcript of Proceedings, p. 
     19. (Appendix C)
     \20\ The Economist, http://www.economist.com/editorial/
freeforall/current/sf10077.html. (Appendix N)
     \21\ Statement of Bill Gates before the Senate Judiciary 
     Committee, p. 2-3. (Appendix O)
     \22\ ZDNet, ``OS Pricing: The Crux of the Matter,'' February 
     2, 1998. (Appendix P)
     \23\ Business Week, ``Just How Much Does Windows 98 Cost?,'' 
     June 15, 1998, p. 50. (Appendix Q)
     \24\ ZDNet, February 2, 1998. (Appendix P)
     \25\ Wall Street Journal, ``Microsoft's Windows Bucks the 
     Pricing Trend,'' March 23, 1998. (Appendix R)

[[Page S7235]]

     \25\ Wall Street Journal, ``Microsoft's Windows Bucks the 
     Pricing Trend,'' March 23, 1998. (Appendix R)
     \27\ Ibid. (Appendix R)
     \28\ Response of Bill Gates to Supplemental Questions from 
     Senator Hatch, p. 11. (Appendix S)
     \29\U.S. v. Microsoft Corporation, Memorandum, at 17, and 
     note 10. (Appendix T)
     \30\ U.S. v. Microsoft Corporation, Memorandum, at 2-3. 
     (Appendix U)

  Mr. HATCH. I suggest people who are interested in this issue not only 
listen to what I have to say here today but that they read this. I 
think they will find that this is a group that basically disassembles 
on many issues. Frankly, I don't think they need to disassemble. All 
they have to do is come in and tell their case forthright and in a fair 
and reasonable manner and do it on the merits. If you read this, I 
think you will realize this is a much more serious set of problems than 
some in the media make it, especially some of those who seem to think 
there should never be an enforcement of the antitrust laws.
  You don't get people from the left to the right, or right to the 
left--from Bork to you-name-it on the left--saying that there are 
things that are wrong here, that there is an exploitation of the 
monopoly power of 90 percent of the operating system and the desktop 
operating systems throughout the world to crush competition and to do a 
number of other things that basically are violative of our laws, 
without their being some heat to some of the arguments that they are 
making.
  I have to say, our committee hearings have shown that there are some 
things that are wrong here. It is a matter of getting people in the 
software industry to have the guts to come forward and tell their 
stories. For instance, the OEM, the original equipment manufacturers, 
are terrified because they depend totally on Microsoft's underlying 
operating system to run their machines. All Microsoft has to do is to 
delay the delivery of that underlying operating system or anything else 
they do to the OEMs by 1 week and they could be multimillions of 
dollars in the hole as others get an unfair advantage. We have had 
people come in and tell us, who are afraid to testify for fear they 
would lose their business, that they have been warned they better not 
cooperate with the committee or they better not tell the story.
  This happens in a wide variety of things according to people who have 
come to us. Now I think they have to have the guts to get in front of 
the committee and tell their stories and let the chips fall where they 
may. If they are true, if what they have been alleging to us and to the 
Justice Department is true, then we ought to find out about it and 
Microsoft ought to have some answers for it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.

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