[Federal Register Volume 67, Number 86 (Friday, May 3, 2002)]
[Notices]
[Pages 28124-28698]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: X02-200503]
MTC-00027805
From: Sudha
To: Microsoft ATR
Date: 1/28/02 11:04am
Subject: LOGICAL EXPLANATION--;Freedom to Innovate
Below are comments to specific issues addressed in the Court
Case, http://www.usdoj.gov/atr/cases/ms-settle.htm#docs
Item #2: Someone else please invent a better operating
system than Windows! Also if MS Windows has monopoly, what about
Intel--;would they be ``monopolizing'' the intel chip
market?
Item #3: A better operating system will always win the user
market.
Item #4: How ridiculous! When Netscape owned 70% of the
market, was it not a monopoly?
Item #7: Java is very difficult to learn. Training is
unaffordably expensive.
Item #11: Netscape is NOT the browser innovator--;give
credit to the real innovator, please!!! (universities!)
Item #18: Microsoft has a right to ``tie'' all ITS
products together! Integrating applications makes better use of
system resources.
Item #24, 25: As long as Windows is the operating system
used, the creator of Windows, who is Microsoft, has the right to
present it anywhich way to the users as they please--;basic
human right of ownership!
Additional Comments: Seems to me like other vendors like IBM and
Sun and Netscape had nothing to complain about as long as THEY owned
the lion's share of the market. Their products were difficult to use
and hard to learn.
Microsoft brought the computing technolgy to the layman's door
making it possible for the total computer illiterate people to be
able to actually use the computer in effective and efficient ways,
which would have been totally impossible otherwise!
Sudha
Database Administrator
Department of Human Oncology
Telephone: 608.263.1549
Email:
[email protected]
MTC-00027806
From: Bartucz, Tanya Y.
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:03am
Subject: Tunney Act Comments
Attached please find the Association for Competitive
Technology's Tunney Act comments on the Microsoft settlement. A
paper copy has been submitted by fax.
Tanya Bartucz
Sidley Austin Brown & Wood LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-;8067
Fax (202) 736-;8711
This e-mail is sent by a law firm and may contain information
that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail
and any attachments and notify us immediately.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, v. Civil Action No. 98-;1232 (CKK) MICROSOFT
CORPORATION, Defendant. STATE OF NEW YORK ex rel.Attorney General
ELIOT SPITZER, et al.,Plaintiffs,) v. Civil Action No. 98-;1233
(CKK) MICROSOFT CORPORATION,Defendant.
COMMENTS OF THE ASSOCIATION FOR COMPETITIVE TECHNOLOGY
The Association for Competitive Technology (``ACT'')
hereby submits its comments on the Revised Proposed Final Judgment
(``RPFJ'') that has been proposed by most of the
plaintiffs, including the United States, and defendant Microsoft
Corporation. ACT is a trade association representing some 3,000
information technology (``IT'') companies, including
Microsoft, on a number of issues important to the industry. ACT's
mission is to promote a vibrant, competitive IT industry and a
vibrant IT marketplace in which consumers, not the government, pick
winners and losers. Because ACT believes that, on balance, the RPFJ
will be good for both the industry and consumers, it supports the
RPFJ. ACT also opposes the radical proposals advanced by the
remaining plaintiffs because they would harm the industry and serve
no other purpose than to advance the interests of such Microsoft
rivals as Sun Microsystems, Oracle, and AOL Time Warner.
INTRODUCTION AND SUMMARY
The purpose of a Tunney Act proceeding is to determine whether
the settlement that the federal government has entered into is
within the reaches of the public interest. United States v.
Microsoft Corp., 56 F.3d 1448, 1460 (DC Cir. 1995) (internal
quotation marks and emphasis omitted). The RPFJ easily meets that
forgiving standard. Indeed, as shown in detail below, this
conclusion is easily established by measuring the RPFJ against four
settled principles that govern relief in all antitrust cases, and by
comparing the RPFJ to the radical remedies that have been proposed
by the States that have refused to consent to the RPFJ
(``Litigating States'').
First, it is well settled that an antitrust remedy should be
designed to protect consumers rather than advance the interests of
competitors. The RPFJ will accomplish this goal. It prevents
Microsoft from engaging in exclusionary or retaliatory tactics, as
well as foreclosing a number of more specific paths to unfair
competition. However, it is carefully crafted to ensure that Windows
will remain available to consumers as a reliable operating platform.
By contrast, many of the Litigating States' proposals seem to
have been designed by Microsoft's competitors. Indeed, the companies
that will benefit most from the Litigating States' efforts are the
same ones that have led the campaign to scuttle settlement efforts
case and to impose far-reaching restrictions on Microsoft: AOL Time
Warner, Sun Microsystems, Oracle, IBM, and Apple. As a prominent
commentator recently noted, Microsoft's enemies were largely
responsible for instigating the lawsuit and were active behind the
scenes in helping the government frame the charges and compile the
evidence. Executives from Sun, AOL, Netscape and other companies
testified against Microsoft. Fred Vogelstein, The Long Shadow of XP,
Fortune, Nov. 12, 2001. Each of these companies dominates a
particular market that is distinct enough from Intel- compatible PCs
not to be a part of this case, but related enough that Microsoft's
rivals fear Microsoft's competition. For example, Sun Microsystems
dominates the market for server operating systems, but its market
share is being eroded by lower-cost alternatives from Linux and
Windows. Why Competitors Are Largely Quiet on Microsoft Settlement,
Associated Press, Nov. 15, 2001; Peter Burrows, Face-Off, Bus. Wk.,
Nov. 19, 2001, at 104. In asking for must-carry provisions for Java,
limits on technical integration and the use of Microsoft middleware,
and restrictions on Microsoft's investment in intellectual property,
Sun seeks to maintain its stranglehold over the server marketplace.
Similarly, Oracle enjoys a privileged position in the server
database market but it, too, is facing stiff competition from lower-
priced alternatives that are gaining increasing favor with reviewers
and customers. As Oracle tries to move into different markets, such
as e-mail, where consumers expect tighter integration, it will be
unable to maintain its high prices unless Microsoft's capacity for
product improvement is limited. Finally, Microsoft and AOL are both
dominant companies, orbiting in separate if overlapping domains. Yet
both companies regard themselves as being on a collision course, as
all forms of information and entertainment, including music and
movies, are increasingly rendered in digital form. Steve Lohr, In
AOL's Suit Against Microsoft, the Key Word Is Access, N.Y. Times,
Jan. 24, 2001. An internal document makes clear that AOL is willing
to take any necessary steps to gain control of the desktop,
including even spreading false rumors about the stability of Windows
XP. See http://www.betanews.com/aol.html.
4 Beyond these companies' own statements and court filings their
views are parroted by various proxies. These include organizations
that were specifically formed to hobble Microsoft, such as the
misnamed Project to Promote Competition and Innovation in the
Digital Age (``ProComp''), and existing trade
organizations that these companies have recently joined and come to
dominate, such as the Computer and Communications Industry
Association (``CCIA'') and the Software Information
Industry Assocation (``SIIA''). The apparently high level
of coordination between these groups and the Litigating States'
counsel is ample reason for skepticism when examining some of the
States' arguments.
The reality is that these rivals, both directly and through
their proxies, are trying to use the courts to increase their own
profits rather than consumer satisfaction. This is shown by the fact
that, while they condemn Microsoft for integrating its products,
they, too, are vying to bring integrated products to consumers. For
example, Sun's SunONE initiative tries to offer the same level of
integration as Microsoft's .Net service. See SunONE, Services on
Demand vision, at http://www.sun.com/software/sunone/
overview/vision/. Not surprisingly, Oracle shares this vision of a
global network of
[[Page 28125]]
centralized information and online services. It envisions an all-
Oracle solution, advising businesses to ``wage their own war on
complexity'' by turning to Oracle for ``an integrated,
complete software suite.'' AOL is likewise promoting its
``AOL anywhere'' strategy, which makes its popular
services and features available to consumers anywhere, anytime
through multiple platforms and mobile devices. Clearly, these
companies do not believe that selling IT products piecemeal best
meets consumers' needs, yet that is what they are trying to force
Microsoft to do.
Second, it is equally well settled that an antitrust remedy
should be tailored to fit the conduct that has been found illegal.
Here, the RPFJ carefully addresses each of the types of conduct that
the Court of Appeals found illegal. It regulates the agreements that
Microsoft can enter into and prevents Microsoft from retaliating
against software or hardware distributors. The RPFJ also gives both
computer manufacturers and consumers more choices in configuring
their computers, and specifically enables them to turn off any
Microsoft middleware and replace it with the middleware of their
choice. And the RPFJ requires Microsoft to disclose technical
information and license its intellectual property to those whose
products interoperate with Windows.
To be sure, the RPFJ in some respects goes beyond the findings
of illegal conduct affirmed by the Court of Appeals. Unfortunate as
that may be, it should not deter the Court from adopting the RPFJ.
As the District Court for the District of Columbia stated in another
context: If courts acting under the Tunney Act disapproved proposed
consent decrees merely because they did not contain the exact relief
which the court would have imposed after a finding of liability,
defendants would have no incentive to consent to judgment and this
element of compromise would be destroyed. The consent decree would
thus as a practical matter be eliminated as an antitrust enforcement
tool, despite Congress' directive that it be preserved.
United States v. American Tel. & Tel. Co., 552 F. Supp. 131,
151 (D.DC 1982), aff'd sub nom. Maryland v. United States, 460 U.S.
1001 (1983) (mem.). Nevertheless, the vast majority of the RPFJ's
provisions respond to the findings that were affirmed by the Court
of Appeals. Virtually all of the proposals by the Litigating States,
by contrast, address areas wholly outside the scope of this case,
such as Microsoft's corporate acquisitions, the Office suite of
programs and, of all things, Microsoft's conduct of its intellectual
property litigation. The Litigating States' proposals should be
rejected for that reason alone.
Third, any antitrust remedy should minimize ``collateral
damage'' to third parties. Here, the RPFJ carefully avoids
serious harm to other sectors of the information technology
industry.
The Litigating States' proposals, by contrast, would inflict
enormous damage on the rest of the industry. Perhaps most important,
their proposals would fragment the Windows standard and, in turn,
profoundly disrupt other businesses that rely upon it. The
Litigating States' proposals would also weaken intellectual property
protections, setting an unnerving precedent for any IT firm aspiring
to lead its market, and slow the pace of research and development in
the IT field. Fourth, an antitrust remedy should be easy to
administer, and not be regulatory. The Litigating States, in an
effort to impose their concept of ``competition'' in the
information technology industry, would create a court-run agency to
supervise Microsoft's every move and to judge its every action. In
contrast, the RPFJ would create a more independent, more limited
supervisory body that would have full access to Microsoft
information, but that would not combine the roles of prosecutor and
judge. This too counsels strongly in favor of the RPFJ, and against
the proposals advanced by the Litigating States.
The remainder of these Comments is organized as follows. Section
I summarizes and explains in more detail the four principles that
are pertinent to the District Court's determination of whether the
RPFJ is within the reaches of the public interest. Microsoft, 56
F.3d at 1460 (internal quotation marks and emphasis omitted).
Section II applies these principles to the RPFJ and, for comparison
purposes, to the proposals advanced by the Litigating States.
I. THE PROPER ANALYTICAL FRAMEWORK FOR EVALUATING ANTITRUST
REMEDIES.
Antitrust law recognizes that competition gets its vigor from
the urge to win. A desire to ensure that all competitors will do
equally well makes robust competition impossible and sets the stage
for price-fixing and similar behavior. Accordingly, antitrust law
and antitrust remedies are designed to foster real competition, so
that consumers and the wider economy can ultimately benefit. Thus,
while competitors I driven by their own urge to win I may try to
misuse antitrust law to further their own goals, government agencies
and courts should be vigilant to ensure that their power is used in
consumersO interests rather than competitorsO. The case law on
remedies generally I and antitrust remedies in particular I supports
the goal of harnessing competition. A close reading of that case law
reveals four specific principles that promote that goal, and that
are dispositive here.
A.Any Remedy Must Have A Probability Of Benefiting Consumers,
And Not Be Designed to Punish the Defendant Or, Worse, To Enhance
The Position Of the Defendant's Rivals.
Perhaps the most important principle of antitrust law is that
any remedy must be designed to benefit consumers, not just punish
the defendant or enhance the position of the its rivals. The law is
clear that, in a civil antitrust case, any injunctive remedy must
be, as its name suggests, remedial rather than punitive. E.g.,
United States v. E. I. Du Pont de Nemours & Co., 366 U.S. 316,
326 (1961); International Salt Co. v. United States, 332 U.S. 392,
401 (1947); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Moreover,
as Judge Robert Bork has shown in his famous book, The Antitrust
Paradox, the entire purpose of antitrust law is promotion of
consumer welfare, not the protection I or enhancement I of
competitors. Robert H. Bork, The Antitrust Paradox 51, 56-;89
(1978); see also National Collegiate Athletic Ass'n v. Board of
Regents, 468 U.S. 85, 107 (1984).
It follows that any remedy must have as its principal purpose
the promotion of consumer welfare. And, as the District Court
recently noted, the states have the burden of establishing the
efficacy of every element of the proposed relief in achieving that
objective. Hearing Tr., Sept. 28, 2001, at 8, United States v.
Microsoft, No. 98-;1232 (D.DC). For two reasons, it is doubtful
that any remedy at all is needed to protect consumers in this case.
First, it appears that the particular conduct at issue in this case
has never harmed consumers in any meaningful sense. The government's
own witness, Professor Frank Fisher of
MIT, testified during the trial that the narrow conduct found
unlawful by the Court of Appeals had not harmed consumers at all.
When asked by plaintiffsO counsel whether that conduct had harmed
consumers, Fisher replied: [O]n balance, I would think the answer
was no, up to this point. Trial Tr., Morning of Jan. 12, 1999, at 29
(Fisher), United States v. Microsoft Corp., 87 F.Supp.2d 30 (D.DC
2000), aff'd in part, rev'd in part, 253 F.3d 34 (DC Cir.), cert.
denied, 122 S.Ct. 350 (2001).
If Microsoft's conduct did not harm consumers even on balance it
is difficult to see how any remedy is now needed to protect them.
But if any remedy is needed, the Court must be careful not to risk
harming consumers by adopting remedy proposals such as those
advanced by the Litigating States remedies which, to paraphrase
Abraham Lincoln, are of the competitors, by the competitors, and for
the competitors.
Second, even if Microsoft's conduct could have harmed consumers
in some way, any such risk has now abated. This entire case is
premised on the assertion that Microsoft enjoys market power by
virtue of the fact that a high percentage of IBM-compatible PCs use
Windows as their operating system. Whether or not that was true when
the case was tried, such knowledgeable industry observers as Sun's
president have effectively conceded that whatever market power
Windows might once have given Microsoft is now virtually a thing of
the past. For example, in his January 3, 1999 interview on 60
Minutes, Scott McNealy rejected Leslie Stahl's suggestion that with
its Java software, Sun now ha[d] a chance to make Windows obsolete.
Instead, McNealy retorted, Windows is obsolete, [and] we have a
chance to show the world that it is. 60 Minutes (CBS Television
Broadcast, Jan. 3, 1999). McNealy elaborated this theme in a
subsequent Wall Street Journal op-ed piece, which appeared more than
two years ago. He asserted that, because of the growth of the
Internet, [a]
few years from now, savvy managers won't be buying many, if any,
computers. They won't buy or build anywhere near as much software
either. They'll just rent resources from a service provider,
primarily over the Internet. Scott McNealy, Why We Don't Want You to
Buy Our Software, Wall St. J., Sept. 1, 1999, at A26. McNealy's
predictions are already being borne out. A recent article
[[Page 28126]]
assessed the changes in the operating system market. It noted that
Microsoft's main markets are maturing and the entire ground under
its empire is shifting. Market researchers expect PC sales worldwide
to drop [in 2001] and at best to stagnate in 2002. What is more,
software is increasingly a service delivered over the Internet,
meaning that operating systems are no longer central. Microsoft:
Extending Its Tentacles, The Economist, Oct. 20-;26, 2001, at
59. Thus, whatever market power Microsoft now possesses is rapidly
being eroded, or is already effectively gone. In short, because
Microsoft's present market power is limited at best and will be
further eroded in the near future, there is no need for antitrust
remedies. See also William E. Kovacic, Designing Antitrust Remedies
for Dominant Firm Misconduct, 31 Conn. L. Rev. 1285, 1314 (1999)
(explaining that rapid technological change can indicate the
instability of market power, and therefore to the need for milder
remedies). At a minimum, any antitrust remedy must take into account
the dramatic decline in any market power Microsoft might previously
have enjoyed, and be limited accordingly.
B. The Remedy Should Be No Broader Than Necessary To Address The
Conduct That The Court Of Appeals Held Illegal.
Another principle that must guide the analysis of any proposed
antitrust remedy is that it must be no broader than necessary to
address the conduct that has been found illegal. As with all
injunctive relief, the substantive prerequisites for obtaining an
equitable remedy as well as the general availability of injunctive
relief ... depend on traditional principles of equity
jurisdiction. Grupo Mexicano de Desarollo, S.A., Inc. v. Alliance
Bond Fund, 527 U.S. 308, 319 (1999) (quoting 11A C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure u 2941, at 31
(2d ed. 1995)). And one of these traditional principles of equity
jurisdiction, id., is that an injunction should be no more
burdensome than necessary to prevent a recurring violation of the
law. See generally Madsen v. Womens Health Center, 512 U.S. 753, 765
& n. 3 (1994), and cases cited therein. This is as true in
antitrust as in other areas of the law. For example, in the Lorain
Journal case, which Robert Bork believes is the closest to this one,
the Court noted that, [w]hile the decree should anticipate
probabilities of the future, it is equally important that it ... not
impose unnecessary restrictions. 342 U.S. at 156. The Court of
Appeals recognized this principle when it instructed the District
Court that any remedy should be tailored to fit the wrong creating
the occasion for the remedy, Microsoft, 253 F.3d at 107, i.e., that
it should be focused on the conduct [the court] has found to be
unlawful and should be limited to provisions that are required to
rectify [Microsoft's] monopoly maintenance violation, id. at 104,
105.
Consistent with these principles, since at least 1911 it has
been the law in antitrust cases that ordinarily ... [an] adequate
measure of relief would result from restraining the doing of such
[illegal] acts in the future. Standard Oil Co. v. United States, 221
U.S. 1, 77 (1911) (emphasis added). In other words, an injunction
simply forbidding the specific conduct found to
Normally, of course, a settlement is reached before a trial on
the merits. In that situation, it is clear that a reviewing court
cannot expand an antitrust decree to remedy perceived problems that
lie outside the scope of the complaint. That was the thrust of the
Court of Appeals' 1995 Microsoft decision, 56 F.3d 1448.
Furthermore, any such action by a reviewing court would most likely
be unconstitutional. Id. at 1459; see also Maryland v. United
States, 460 U.S. 1001, 1006 (1983) (Rehnquist, J., dissenting).
Here, of course, the Court of Appeals has affirmed some of the
district court's findings of liability. Expanding the remedy to
address issues as to which liability has not been proven let alone
issues as to which liability has never been alleged would clearly
exceed the District Court's power.
be illegal is ordinarily considered sufficient. Or, as the
District Court recently explained, the scope of any proposed remedy
must be carefully crafted so as to ensure that the enjoin[ed]
conduct falls within the . . . behavior which was found to be
anticompetitive. Hearing Tr., Sept. 28, 2001, at 8.
Some commentators have nevertheless argued that the District
Court is obligated to terminate Microsoft's dominant market
position, which they characterize as an illegal monopoly. Jennifer
Bjorhus, Settlement Draws Frustration From Few Tech Giants That
Spoke Out, San Jose Mercury News, Nov. 3, 2001, at 20A. But this
argument rests on a misinterpretation of the pertinent case law,
including the Court of Appeals' decision. Contrary to this argument,
the law does not require that a remedy attempt to recreate the world
as it might have existed absent the violation or deprive a defendant
of the proceeds of its business. Instead, where a violation is
found, the remedy, as the Court of Appeals pointed out, should be
designed to unfetter' the market from the anticompetitive conduct.'
Microsoft, 253 F.3d at 103 (quoting Ford Motor Co. v. United States,
405 U.S. 562, 577 (1972)) (emphasis added).
That, moreover, is why the Court of Appeals placed heavy focus
on the requirement that, before a court can seek to undo an alleged
monopoly, there must be a significant causal connection between the
allegedly illegal conduct and the existence of that monopoly. The
District Court recently echoed this same theme when it remarked that
it intended to fashion an injunction that would avoid a recurrence
of the violation and . . . eliminate its consequences. Hearing
Transcript, Sept. 28, 2001, at 9 (emphasis added).
There is a vast difference between unfettering or unshackling a
market from prior anticompetitive behavior, and attempting to
reconstruct the market as it might have existed absent that conduct.
The former is a legitimate objective of an antitrust remedy; the
latter is not.
In the District Court's words, attempting to reconstruct the
market as it might have been absent the conduct at issue goes well
beyond simply eliminating the consequences of anticompetitive
conduct. Antitrust law does not attempt to recreate or to maintain
by detailed regulation a perfect world. Its goal is to restore
competition, including legitimate competition by the dominant firm.
Ford Motor Co. v. United States, 405 U.S. 562, 577-;78 (1972).
C.The Remedy Should Avoid Or Minimize Collateral Damage To The Rest
Of The IT Industry.
Another traditional principle[] of equity jurisdiction,' Grupo
Mexicano, 527 U.S. at 319, is that any relief imposed by a court
should not inflict unnecessary harm on third parties. Atchison,
Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412
U.S. 800, 824 (1973) (plurality opinion); Gilbertville Trucking Co.
v. United States, 371 U.S. 115, 130 (1962). In this case, there is a
real risk of harm to the entire IT industry as well as consumers. As
explained in the attached affidavit of ACT's president, Jonathan
Zuck, (Exh. A) both consumers and IT companies derive enormous
benefits from the existing Windows platform. For IT companies in
general, and ACT's members in particular, that platform is unusually
valuable and important for at least three reasons.
1. Constant Improvement and Addition of New Features and
Functionalities. One reason Windows is so valuable to the IT
industry is that Microsoft has constantly improved it. For example,
as Mr. Zuck explains, each new release of Windows contains software
drivers for the major new printers and other peripheral devices that
have been released since the prior version of Windows. This means
that developers of applications such as money management software,
graphics programs, etc., do not need to create their own drivers for
these devices or, worse, choose from among several competing
drivers. Affidavit N 7.
Virtually everyone in the IT industry, moreover, has a strong
interest in seeing this trend continue in the future. The addition
to Windows of such new functionalities as voice recognition, for
example, will allow software developers to add such features to
their products at minimal cost. Those costs will increase
dramatically and consumer benefits will be reduced if software
developers are forced to develop their own voice recognition
features or, worse, to port their programs to several competing
voice-recognition programs. Id. N 8. 2.Windows' Uniformity and
Widespread Acceptance. Uniform standards are likewise crucial to an
efficient, rapidly evolving IT sector. As Mr. Zuck explains,
communications and Internet standards provide the language necessary
for many different computers to talk or network with one another,
enabling, for example, users of the World Wide Web to locate and
retrieve the information they seek. Operating systems perform a
similar function, allowing hardware devices and software
applications to communicate with a computer. Indeed, it is Windows'
consistency that makes it so valuable.
As the Court recognized in its Findings of Fact, Windows exposes
a set of application programming interfaces' that lets software
interact in a consistent way with any Intel- compatible PC. United
States v. Microsoft Corp., 84 F. Supp. 2d 9, 12-;13 (D.DC 1999)
(Findings of Fact). This means that the same software will run on
all Windows-based PCs
[[Page 28127]]
and, by and large, all hardware devices can be used as well.
Affidavit N 10. Hence, the consumer avoids the need for time-
consuming, often expensive retraining, and thus has a greater
incentive to learn how to use the existing system. Also, the
widespread acceptance that Windows enjoys makes it easier to ensure
that computer products (both hardware and software) work the way
they are supposed to, and work well with each other. Operating
system consistency usually means that software will operate normally
even if the type of computer changes. For example, WordPerfect will
function as advertised on a Windows-based Dell computer or a
Windows-based Compaq computer. Id.
For these reasons, as Mr. Zuck explains, the cost per potential
customer of developing a piece of software for the Windows operating
system is significantly lower than the cost for the UNIX operating
system. And that, of course, translates into more software and lower
prices for consumers. Id. N 13.
In addition, more than any other operating system, Windows has
remained compatible with software written for older Windows
versions. As a result, consumers have much greater confidence that
the software they purchase will work when they upgrade to a new
Windows release. Hardware manufacturers and developers similarly
face much less risk that their research and development expenditures
will be stranded if Microsoft releases a new version. Id. N 14.
3. Windows' Low Cost to Consumers. The Windows operating system
also allows the developer, or other providers of support services,
to support end-users at minimal cost. As Mr. Zuck explains, each
operating system not only has signature application interfaces and
user commands, it also presents its own set of bugs and system
errors. Thus, to provide software or
In its consistency from one computer and software program to
another, Windows is markedly different from the UNIX operating
system. That system is in reality a collection of similar operating
systems, including Sun's Solaris, Digital's UNIX, HP's HP-UX, IBM's
AIX and SCO's UnixWare. See http://www.techweb.com/encyclopedia/
defineterm?term=unix. Although different versions may be desirable
with respect to many products, for most computer users such a
proliferation promises nothing but confusion, lost time, fewer
applications, and higher prices. For example, a consumer who shifts
from one UNIX-based computer to another UNIX- based computer may
find that the two computers use different UNIX versions with
different features, functions, and idiosyncrasies. Consequently, the
consumer may have to devote considerable time and expense learning
how to perform the same tasks on the second UNIX- based computer
that she already knew how to perform on the first platform. Worse
still, the software applications or hardware equipment she purchased
for and used on the first computer may be incompatible with the
version of UNIX installed on the second computer. And a UNIX user
obviously has less incentive to develop skills tailored to her
particular system if it is likely that she will use a different UNIX
operating system in the future. Affidavit NN 11-;12.
15 hardware support, a developer must train personnel to
identify and understand the idiosyncrasies of each operating system
under which it markets its product. These increased support costs
increase prices and decrease consumer demand for products and
services. Id. N 15. Consumers, moreover, obtain all of these
benefits inexpensively. Compared to the cost of a typical PC, and to
the cost of the software typically installed on that PC, the cost of
Windows (at about 5% of the PC's price) is relatively small. A low
price, coupled with all the benefits stemming from Windows'
widespread use, drives up demand by making computer products more
affordable and attractive to consumers. Id. N 16.
As Mr. Zuck explains, the widespread use of an inexpensive,
constantly evolving operating system is particularly important in an
industry as dynamic as the information technology industry, which
constantly generates both new products and new uses for those
products, and for which new developments such as the Internet can
redraw the competitive landscape overnight. A popular operating
system like Windows allows consumers and developers to act quickly
and with confidence that software and hardware will work on most PCs
today and in the future. And the fact that many consumers choose
Windows adds a measure of stability to a highly dynamic industry.
For all these reasons, any remedy that resulted in the
balkanization of Windows would have a disastrous effect on the
entire IT industry. Software developers, Internet access providers,
and others rely on the widely installed, constantly improving
Windows platform as the groundwork for their own products. If there
were no consistent platform, software developers would have to try
to port their products to various operating systems, increasing
those products' costs substantially, or else they would have to
accept a much smaller market share.
This, too, would drive up prices because the cost of
distributing software is tiny compared to the cost of developing it.
Windows' importance as a consistent platform is illustrated by
the fact that, when it appeared that Microsoft might be broken up,
stock prices in the rest of the IT industry fell. Kenneth G.
Elzinga, David S. Evans, Albert L. Nichols, United States v.
Microsoft: Remedy or Malady?, 9 Geo. Mason L. Rev. 633 (2001).
Likewise, any remedy such as those proposed by the Litigating States
that would fragment Windows would be unlawful because of the harm it
would impose on third parties.
D. The Remedy Should Be Judicially Administrable, Not
Regulatory.
Finally, any remedy should be judicially administrable and not
put the courts in the position of having to oversee product design.
United States v. Microsoft Corp., 147 F.3d 935, 948 (DC Cir. 1998).
Some have suggested that the kinds of extreme remedies proposed by
the Litigating States are in some sense alternatives to regulation.
But history suggests quite the opposite.
In 1982, for example, AT&T entered into a consent decree
designed to remedy what the government perceived as anticompetitive
practices, and to allow AT&T to compete in new markets. Then
too, the provisions of that decree were touted as an alternative to
regulation. But in practice, the break-up of AT&T generated
pervasive judicial participation in the telecommunications industry.
For example, between 1984 and 1995, the court ruled on over 250
waiver requests pursuant to the consent decree. Most of these were
necessary to allow the companies spun off from AT&T to respond
to market developments that had not been anticipated when the decree
was entered. Although 96 % of the requests were eventually approved,
the average delay prior to approval was four years. It is not
surprising, then, that Congress put the court out of the
telecommunications business when it passed the Telecommunications
Act of 1996.
This kind of intrusive, time-consuming regulation is
particularly ill-suited to a rapidly- changing industry such as IT.
For example, many settlement opponents have made proposals resting
on a distinction between middleware and the operating system. But
this distinction is dubious even now, and is rapidly being eroded.
The federal courts are not equipped to draw lines in the shifting
sands of information technology.
Notwithstanding this reality, some settlement opponents have
proposed ongoing regulation of Microsoft's conduct, or detailed
enforcement provisions envisioning ongoing judicial involvement in
Microsoft's management. Some have even proposed egregious private
attorney general provisions that would simply foment litigation and
enrich plaintiff's lawyers. All of these proposals would create the
kinds of problems that arose in abundance in the wake of the
AT&T consent decree.
Other cases demonstrate the dire consequences that can arise
when courts attempt to regulate an industry under the guise of an
antitrust decree. For example, in United States v. United Shoe
Machinery Corp., 110 F. Supp. 295 (D. Mass. 1953), aff'd, 347 U.S.
521 (1954), the district court imposed extensive regulation on the
shoe machinery industry over a ten-year period. The remedies were
meant to end United's practice of distributing shoe machinery
through long-term leases and to make shoe machinery available from a
variety of sellers. To this end, the court restricted lease terms,
required United to offer its machines for sale in addition to
leasing them, and required United to charge separately for services
such as repairs. Id. at 352-;53. However, a 1993 study
concluded that the court order destroyed many efficiencies arising
out of the technical realities of the shoe manufacturing industry,
impaired the quality of United's performance, and likely contributed
to the dramatic decline of the domestic shoe industry in the 1960s
and beyond. Scott E. Masten & Edward A. Snyder, United States v.
United Shoe Machinery Corp.: On the Merits, 36 J.L. & Econ. 33
(1993); see also Lino A. Graglia, Is Antitrust Obsolete?, 23 Harv.
J.L. & Pub. Pol'y 11, 17 (1999). For all these reasons, judicial
regulation of the IT industry, or any portion of that industry, is
to be avoided at all costs.
Indeed, that appears to be the main message of the DC Circuit's
earlier decision
[[Page 28128]]
rejecting the preliminary injunction that the Government sought.
Microsoft, 147 F.3d at 948 (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.). And the Court of Appeals' most recent decision
is entirely consistent with that message. Microsoft, 253 F.3d at
101-;07. Indeed, even Judge Jackson has acknowledged that in
this case, as in others: The less supervision by this court, the
better.' John R. Wilke, For Antitrust Judge, Trust, or Lack of It,
Really Was the Issue, Wall St. J., June 8, 2000, at A1.
II. THE RPFJ IS CONSISTENT WITH ALL OF THESE PRINCIPLES, WHEREAS
THE PROPOSALS BY THE LITIGATING STATES AND OTHER CRITICS WOULD
VIOLATE EVERY ONE OF THEM.
On balance, the RPFJ complies with these four principles and is
therefore in the public interest. Like most settlements, it is less
than perfect. However, the purpose of this proceeding is not to
produce a perfect order. The court must review the settlement that
the parties have agreed to, and enter it so long as the proposal
falls within the reaches of the public interest.' Microsoft, 56 F.3d
at 1458 (DC Cir. 1995) (emphasis in original; citations omitted);
see 15 U.S.C. u 16(e) (Before entering any consent judgment proposed
by the United States under this section, the court shall determine
that the entry of such judgment is in the public interest.).
It is clear that entry of the RPFJ is in the public interest.
The federal government has explained at length in its Competitive
Impact Statement that the RPFJ will provide a prompt, certain and
effective remedy for consumers by enjoining the conduct that the
Court of Appeals found to be illegal, and by restoring competitive
market conditions. Competitive Impact Statement at 2, United States
v. Microsoft, No. 98-;1232 (D.DC Nov. 15, 2001) (CIS). Each of
the Court of Appeals' findings of anticompetitive conduct is
addressed by at least one provision of the proposed final judgment.
See Exh. B (table showing which provisions address each finding of
illegality). Indeed, the RPFJ's provisions regarding server
protocols, and its enforcement provisions, extend beyond the
anticompetitive conduct found by the Court of Appeals. Accordingly,
any notion that the RPFJ only tells Microsoft to go forth and sin no
more, United States v. Microsoft Corp., 159 F.R.D. 318, 334 (D.DC
1995), rev'd, 56 F.3d 1448 (DC Cir. 1995), is ludicrous.
In contrast, the Litigating States and other critics of the RPFJ
have proposed a variety of radical remedies that they claim would be
more effective than the RPFJ in restoring competition. However,
these proposals violate the four principles described above, and are
in fact designed to benefit Microsoft's competitors. Indeed, these
proposals would advantage Microsoft's competitors in areas other
than PC operating systems, which is the only market at issue in this
case. Moreover, rather than seeking to restore competition, these
proposals and others like them seek to impose a court-designed,
court-regulated regime that is especially inappropriate for a
rapidly changing area such as IT. A principle-by-principle analysis
highlights the flaws in these proposals.
A. The RPFJ Is Designed To Benefit Consumers, Whereas The
Litigating States' Proposals Are Designed To Benefit Microsoft's
Competitors.
As noted above, the most vital principle in designing an
antitrust remedy is that it must be designed to benefit consumers
rather than competitors. Unlike the Litigating States' proposals,
the RPFJ easily complies. Consumers will benefit from the guaranteed
flexibility and choice provisions in the RPFJ. All new Microsoft
operating systems, including Windows XP, will have to allow end
users to readily remove or re-enable Microsoft's middleware products
such as its Internet browser, instant messaging tools, media player,
and email utilities. While end users can already remove Microsoft
middleware from Windows XP, the RPFJ will make it easier for users
to switch and compare among competing middleware products, including
those installed by computer manufacturers and those readily
accessible over the Internet. Most importantly, the RPFJ preserves
the integrity of the Windows standard while making it easier for
other platforms to compete with Windows. As discussed above, the
network effects that characterize the operating system market mean
that consumers and the IT industry both benefit when they know that
the platform they rely on is widely used, and will continue to be
widely used in the future. Findings of Fact at 19-;23; see also
Affidavit NN 9-;14. By and large, the RPFJ avoids requirements
that would encourage the emergence and sale of multiple,
incompatible operating systems under the Windows brand name. At the
same time, the RPFJ protects Microsoft's competitors in several
ways. Most importantly, it forbids retaliation against OEMs, u
III.A, requires uniform license terms for the twenty largest OEMs, u
III.B, and prevents Microsoft from including various restrictive
provisions in OEM licenses, u III.C. Thus the RPFJ opens up the
valuable OEM distribution channel to competitors, addressing the
Court of Appeals' most substantial concerns. By increasing
competitors' access to OEMs and by preventing Microsoft from
negotiating quotas with IAPs, the RPFJ reasonably ensures that
consumers will have access to whatever products they want.
By contrast, a central thrust of the Litigating States'
proposals is to break Microsoft's control over the Windows brand.
Forcing Microsoft to break up Windows into what a court conceives of
as its component parts both destroys the utility of the standard
Windows platform and entangles judges in a maze of technical
regulation that they are poorly equipped to solve. If implemented,
the LSPFJ would result in the creation of as many as 4,000 different
versions of Windows, each requiring support not only by Microsoft
but also by OEMs, software developers, and other IT professionals.
This outcome would worsen, not improve, the lot of consumers. It
would only serve to weaken Microsoft's product offerings, confuse
users, drive up prices, and limit software choices.
Such remedies would also create concerns about privacy and
security. Consumers are concerned and rightly so about on-line
privacy and the security of their electronic information. E.g. David
Ho, Identity Theft Tops Fraud Complaints, Wash. Post, Jan. 24, 2002
at E4. Because Microsoft would have almost no control over access to
its code and to its technical information under the states' plan,
hackers and other unsavory characters would find it much easier to
penetrate the most common privacy and security protections. It would
also be harder for Microsoft to control computer piracy, which in
the end drives up prices to consumers. By making the fruits of
Microsoft's innovations readily available to competitors, the
Litigating States' proposals would also harm consumers by reducing
Microsoft's incentive to innovate in the future. Indeed, it is
likely that Microsoft's research and development budget, which has
historically been the largest in the industry, would be
substantially reduced to the 22 detriment of consumers. Property
ownership is the cornerstone of a free market system; as property
rights are eroded, so is the incentive to put that property to its
most valuable use. Beyond these problems, the Litigating States'
proposals are patently designed to provide specific benefits to
Microsoft's principal competitors, and to reinforce their dominant
positions in markets that are irrelevant to this litigation. This
approach to remedies is contrary to the interests of consumers and
the rest of the IT industry, and contrary to antitrust law. Benefits
to AOL Time Warner. Some of the Litigating States' proposals will
directly benefit AOL Time Warner. For example, the Litigating
States' proposal to break Microsoft's control over the Windows
brand, and the proposed prohibition on making Microsoft middleware
the default for any functionality, LSPFJ u 10, unless the OEM or
other licensee can override the setting and designate a different
default or give the end-user a neutrally presented choice means that
consumers who think they are buying a coherent, integrated operating
system designed by Microsoft will get something quite different.
To see how this benefits AOL, consider the following scenario:
AOL's Magic Carpet service will compete with Microsoft's .Net
services. If Microsoft designates .Net as a default service in
Windows, AOL can ask computer sellers to re-direct the default to
Magic Carpet. Indeed, AOL's strategy is to do just that. Alec Klein,
AOL to Offer Bounty for Space on New PCs, Wash. Post, July 26, 2001,
at A1 (In internal AOL documents, the media giant lays out a
strategy that calls on manufacturers to build into their new
personal computers icons, pop-up notices and other consumer messages
aimed at pushing aside Microsoft by giving AOL's own products
prominent placement on PCs. It's the latest foray in an intensifying
feud between the two technology titans over consumers and supremacy
on the Internet.) Yet this hybrid product will still be marketed as
a Windows system, making Microsoft responsible in consumers' eyes
for programs it has no control over, and giving AOL a free ride on
Microsoft's reputation and marketing.
Other users will be provided with a bewildering array of
choices, all presented in a neutral manner, i.e. without guidance as
to what product best suits their needs. Yet sophisticated users who
have information
[[Page 28129]]
about middleware alternatives do not need neutrally presented
choices to help them make their decisions. Less sophisticated
consumers are entitled to get the brand they paid for, or at least
to be told how to get that brand. The RPFJ's Section III, by
contrast, puts Microsoft and its competitors on a level playing
field, with minimal judicial intervention.
Benefits to Sun Microsystems. Another Microsoft rival, Sun,
would also benefit directly from the Litigating States' proposals.
Sun would benefit most obviously from the proposal that Microsoft
include Sun's Java with every copy of Windows. LSPFJ u 13.
Apparently Sun sees no conflict between that proposal and the
proposal that Microsoft make available middleware- free versions of
Windows at reduced prices. It is hard to argue that this requirement
would benefit consumers, who can already get Sun's Java free from
those web sites that use it. The federal government's settlement
with Microsoft will make Sun's Java even easier for consumers to
obtain by allowing OEMs, IAPs, and ISVs to provide it to their
customers without fear of retaliation. But under the Litigating
States' proposal, all consumers would have Sun's Java forced on
them.
Benefits to IBM and Apple. The Litigating States' proposals also
benefit IBM and Apple, giving them each an Office suite. IBM wants
Office for Linux, and under the Litigating States' proposal it will
get its wish by snatching Microsoft Office source code at the
auction price. Under that proposal, Microsoft must maintain and
support Office for the Macintosh even if it is a money-losing
proposition. And if Apple is unhappy with the Office support
Microsoft has to provide, it can snatch the source code at auction,
and have an Office all its own. LSPFJ u 14. These porting proposals
go far beyond the scope of this case, which is the Windows operating
system market.
Conversely, the federal government's settlement with Microsoft
addresses the Court of Appeals' only holding of anticompetitive
behavior involving Apple, namely the agreement that Apple would
distribute Internet Explorer exclusively. Under the RPFJ, Apple,
like all ISVs, is free to distribute and promote non-Microsoft
platform software without fear of retaliation. The states' proposal
would give a free ride to a handful of companies and would impose an
unnecessary burden on Microsoft but would not benefit consumers.
The states' proposals also provide free source code for
Microsoft's Internet Explorer, LSPFJ u 12, giving IBM a good browser
for the entire line of IBM computers and Apple a leg up on its
software design. But once again, the problem with all this
generosity is that its sole purpose is to benefit competitors and
harm Microsoft, not to benefit consumers.
B. The RPFJ Is Narrowly Tailored To The Court Of Appeals'
Ruling, Whereas The Litigating States' Proposals Go Well Beyond It.
Another key flaw in the Litigating States' proposals is that
they go well beyond the Court of Appeals' ruling. Indeed, the
sweeping scope of the Litigating States' proposals suggests that
they mistakenly read the Court of Appeals' decision on liability as
a broad affirmance, rather than as it was in fact a reversal in part
containing very precise, narrow holdings on liability. Indeed, the
DC Circuit reversed the District Court's findings that Microsoft had
committed attempted monopolization and illegal tying.
As to the remaining findings, the Court of Appeals affirmed only
some of the District Court's findings that Microsoft had illegally
maintained its monopoly. Microsoft, 253 F.3d 34.
The Court of Appeals held that some exclusionary contracts and
negotiating tactics were unlawful; that Microsoft had acted
illegally in deceiving developers about its own Java language; and
that Microsoft had illegally excluded Internet Explorer from its
Add/ Remove facility and intermingled its Internet Explorer and
operating system code. The Court also emphasized that, on remand,
the District Court must base its relief on some clear indication of
a significant causal connection between the conduct enjoined or
mandated and the violation found directed toward the remedial goal
intended.' Id. at 105 (quoting 3 Philip E. Areeda & Herbert
Hovenkamp, Antitrust Law N 653(b), at 91-;92 (1996)).
Section III of the RPFJ addresses each of these holdings. As to
exclusionary contracts and high-pressure negotiations, the RPFJ
forbids Microsoft to retaliate against OEMs, u III.A; requires
Microsoft to sell Windows to the twenty largest OEMs under uniform
license terms, u III.B; and forbids retaliation against, or
exclusionary agreements with, ISVs or IHVs, u III.G, u III.F. As to
Java, the RPFJ requires disclosure of information needed to design
other software to be fully compatible with Windows, u III.D, and
requires Microsoft to license its intellectual property to rivals, u
III.I. As to Internet Explorer, the RFPJ forbids Microsoft to
restrict any OEM from modifying their computer interfaces in various
ways, such as removing the Internet Explorer icon, u III.C, and
requires Microsoft to allow end-users to remove access to Microsoft
Middleware or to designate a non-Microsoft middleware product as the
default instead of the Microsoft product, u III.H.
The Court of Appeals was also quick to note that much of the
conduct that Microsoft was accused of and even conduct that was
found to be anticompetitive in particular settings is common in
business, and is usually not anticompetitive. But the states'
proposed categorical bans sweep in a host of pro-competitive
conduct, in disregard of the Court of Appeals' instruction that any
remedy be narrowly tailored to specific holdings of illegality. For
example, the states would ban exclusive dealing across the board.
Yet the Court of Appeals explained that: ``exclusive contracts
are commonplace especially in the field of distribution in our
competitive, market economy, and imposing upon a firm with market
power the risk of an antitrust suit every time it enters into such a
contract, no matter how small the effect, would create an
unacceptable and unjustified burden upon any such firm.''
Microsoft, 253 F.3d at 70.
Similarly, the proposed judgment reflects an implacable
hostility to integrating an internet browser or any additional
functionality with the basic Windows operating system. Yet, as the
Court of Appeals observed, [a]s a general rule, courts are properly
very skeptical about claims that competition has been harmed by a
dominant firm's product design changes. Id. at 65.
In perhaps the Litigating States' most egregious proposal, Sun
CEO Scott McNealy got a special gift he has always wanted, see Peter
Burrows, Face-Off, Bus. Wk., Nov. 19, 2001, at 104, --; the
ability to stop Microsoft from buying anything that could help it
compete with Sun. If Microsoft wants to make an acquisition, an
investment, or an exclusive license, it must notify the plaintiff
states' attorneys two months in advance. LSPFJ u 20. The states make
this proposal despite the total absence of any takeover-related
findings anywhere in this case. It was precisely this type of
overreaching that the Court of Appeals soundly rejected in 1995,
when it reversed Judge Sporkin's refusal to approve the federal
government's settlement with Microsoft and reassigned the case to a
different district judge. Microsoft, 56 F.3d 1448. Judge Sporkin had
gone beyond the complaint to try to force the parties to address his
own concerns about vaporware. The Court of Appeals found that effort
inappropriate. And it is no more appropriate for the Litigating
States, at this late date, to try to drag in new issues and punish
Microsoft for conduct that it never had a chance to defend. If a
claim is not made, a remedy directed to that claim is hardly
appropriate. Id. at 1460.
Another example of overreaching is buried in the Litigating
States' proposals regarding orders and sanctions, and which singles
out for punishment any groundless claim Microsoft makes of
intellectual property infringement. Again, Microsoft's conduct in
intellectual property litigation is no part of this case.
Finally, the Litigating States' proposed ban on retaliation
against those who participated in the litigation is not grounded in
any finding of illegality, even though Microsoft has been enmeshed
in antitrust cases for years and has presumably had ample
opportunity to retaliate unhindered. The RPFJ retaliation ban, in
contrast, is clearly aimed at the possibility that Microsoft might
try to punish companies that do not cooperate with Microsoft's
business goals. The Court of Appeals envisioned that Microsoft would
continue its normal business relations, albeit with injunctions in
place against specific conduct found to be anticompetitive. The RPFJ
provision implements that vision, while the states' proposal would
open the door to unfounded claims of retaliation by any disgruntled
participant in the litigation.
Of course, the RPFJ itself is overbroad in some respects.
Yet despite these problems with its scope, it is clear that as a
whole, the RPFJ falls within the reaches of the public
For example, the Proposed Final Judgment defines Microsoft
middleware as including Outlook Express, photo and video editing
software, and other products that cannot serve as competitive
threats to Microsoft. RPFJ u VI.K.1. This definition clearly
[[Page 28130]]
overreaches. This case is about Microsoft's response to the
emergence of middleware as a competitive threat a possible
alternative platform for software developers that could run on a
variety of operating systems and thus would make software
independent of Windows. Only middleware that can interest. It
addresses the Court of Appeals' findings of illegality, remedies
them all, and ensures competitive conditions in the market for
Intel-compatible PC operating systems. C.The RPFJ Will Benefit The
IT Industry, Whereas The Litigating States' Proposals Would Impose
Substantial Harm On Other IT Companies. The RPFJ also offers
significant advantages to the IT industry. Most importantly, of
course, it preserves the integrity of Windows. But it also serves
the IT industry by achieving a relatively quick resolution of this
dispute. Litigation over remedies, possibly followed by appeal and
remand or further appeal, could take years. The Supreme Court has
recognized that a government antitrust consent decree is a contract
between the parties to settle their disputes and differences, United
States v. ITT Continental Baking Co., 420 U.S. 223, 235-;38
(1975); United States v. Armour & Co., 402 U.S. 673,
681-;82 (1971), and normally embodies a compromise; in exchange
for the saving of cost and elimination of risk, the parties each
give up something they might have won had they proceeded with the
litigation. Armour, 402 U.S. at 681. The RPFJ has the virtue of
bringing the IT industry certain benefits and protections without
the uncertainty and expense of protracted litigation, Armour, 402
U.S. at 681; Microsoft, 56 F.3d at 1459; it will provide prompt,
certain and effective remedies, CIS at 3.
The RPFJ also directly helps OEMs and other IT firms. Many of
the options that will benefit consumers will also benefit the
companies they buy from. As discussed above, OEMs serve as an
independent basis for software development across different
operating systems poses a competitive threat to Windows. Microsoft,
253 F.3d at 53. Similarly, the RPFJ overreaches when it requires
that Microsoft disclose communications protocols used to
interoperate with Windows 2000 servers and their successors. The
Court of Appeals' definition of the relevant market made it clear
that servers are not a part of that market and therefore, that they
are not a part of this case. Microsoft, 253 F.3d at 52-;53. As
explained above, the only connection between servers and this case
is that Microsoft's competitors in the server market have been
highly influential with the Attorneys General who continue to
litigate this case. The server protocols themselves are irrelevant
and thus compelling disclosure is both overbroad and designed to
benefit competitors rather than consumers.
29 that equip their products with any Microsoft operating system
will benefit from guaranteed flexibility under the RPFJ. The twenty
largest OEMs will also be entitled to uniform licensing terms, with
some flexibility for volume discounts and marketing allowances. OEMs
will have the ability to lease desktop space as well as space in the
boot sequence on their computers by installing or promoting non-
Microsoft products and services; IT companies will thus have the
option to negotiate with the OEM(s) of their choice for that space.
By contrast, the states' proposal to give the OEMs the choice of
which parts of Windows to include on their computers and forcing
Microsoft to accommodate those choices would fragment the Windows
standard. As explained above and in Mr. Zuck's affidavit, such
fragmentation would have disastrous effects. Creating multiple
versions of Windows would slow the release of new versions of
Windows and would make it impossible for software developers to
program with confidence. Either they would write only to the leanest
version available, depriving consumers of the benefits of most of
Windows' functionality, or they would have to write multiple
versions of each program, substantially increasing development costs
and customer confusion. A stagnant, fragmented Windows would hurt
the entire industry.
On another front, the RPFJ benefits all IT providers, including
Microsoft's competitors, by guaranteeing access to technical
specifications. Microsoft would have to promptly disclose technical
information that enables any Windows operating system to communicate
with Microsoft servers and with all Microsoft middleware products.
uu III.D, III.E. To encourage more non-Microsoft middleware, the
settlement forces Microsoft to license any intellectual property
rights that others might need to compete with Microsoft. u III.I.
And as with OEMs, Microsoft could not penalize any software
developer, service provider, or hardware vendor that develops or
sells products that compete with Windows and Microsoft middleware.
uu III.A, III.F.
By contrast, as discussed above, the Litigating States'
proposals would stifle innovation further by weakening or entirely
eliminating Microsoft's intellectual property rights, thereby
reducing its incentive to innovate. E.g. LSPFJ uu 1 (stripping down
Windows), 2(a) (mandatory licenses), 3 (mandatory licensing of
predecessor versions), 4 (disclosure of APIs and technical
information), 12 (giving away browser), 14 (mandatory porting), 15
(intellectual property licenses), 19(f) (intellectual property
claims). These provisions would not only hurt Windows, but also
would instill in any sensible IT executive the fear that success
will lead to confiscation. Even if these proposals did not end
Microsoft's improvements to Windows, another provision would likely
do so. That is the Litigating States' proposal to require Microsoft
to notify any ISV of non-Microsoft middleware of any planned action,
sixty days in advance, if the action will interfere with the
middleware's performance or compatibility with Windows, unless the
action is taken for good cause. LSPFJ u 5. After the notification,
the ISV could complain to Microsoft's court-installed regulators to
try to block the change.
The states' broad prohibitions on exclusive dealing and on
agreements limiting competition also would prohibit Microsoft from
entering into joint ventures with any other members of the IT
industry. Because IT products are so interdependent, both consumers
and companies would suffer if the only option is to design around
Microsoft products, and the option of collaborating with Microsoft
on entirely new projects is excluded.
D. The RPFJ Attempts to Structure a Workable Compromise, Whereas
the Litigating States Propose to Establish a Court-Run Ministry of
Microsoft. Finally, the approach of the RPFJ is not unduly
regulatory. To be sure, the enforcement mechanism is too intrusive
and could be substantially improved. However, the substantive
provisions of the RPFJ focus on improving competition rather than
micromanaging markets or product design. Thus, most of the
injunctions tell Microsoft what not to do, rather than imagining
what a perfect competitor might do and then attempting to enforce
that vision. Not so the proposal by the Litigating States. They have
proposed ongoing regulation of Microsoft's conduct, including
ongoing judicial involvement in Microsoft's management, by a special
master who would serve as an investigator, prosecutor, judge, and
potentially even witness against Microsoft. LSPFJ u 18. The special
master would be free to receive and act on even anonymous
complaints, again a procedure that the Court of Appeals harshly
criticized when Judge Sporkin used it. Microsoft, 56 F.3d at 1464.
These proposals are most likely unlawful, if not unconstitutional.
Id.; Microsoft, 147 F.3d. at 954 (granting mandamus to vacate non-
consensual reference to a special master where [t]he issue here is
interpretation, not compliance; the parties' rights must be
determined, not merely enforced). And in all events, they would
allow Microsoft's rivals to thwart competition at every turn.
The Litigating States also err in proposing an unduly long
duration period. Any remedy in this case must be sensitive to the
rapid pace of technological change in the operating system market.
An injunction that is appropriate today may be completely unsuited
to tomorrow's market. If, as The Economist has written, operating
systems are no longer central, then there is little point in
regulating that market. Microsoft: Extending its Tentacles, The
Economist, Oct. 20-;26, 2001, at 59. The RPFJ recognizes this
reality by limiting its term to five years, with the possibility of
a two-year extension. u V. Not so the Litigating States, who in
their rush to ask for the most punitive remedies available seek a
ten-year term for the judgment. In an effort to cover unforeseeable
eventualities, the States also define key terms such as middleware,
browser, and technical information so broadly that the proposed
judgment is in some ways absurd. For example, it appears that the
middleware definition would include parts of Windows 3.0, which was
developed before anyone thought of Java or Internet Explorer.
Because they are unworkable, many of the Litigating States'
proposals invite additional judicial involvement through complaints
by competitors or others; indeed, the provisions for anonymous
complaints invite not only involvement, but abuse.
In short, the Litigating States' proposals pose an enormous risk
of ongoing judicial regulation. Not only would they require
[[Page 28131]]
substantial modification of Microsoft's internal management
structure, but they would require the District Court to set up its
own regulatory agency, headed by the special master and potentially
including a substantial staff, all paid by Microsoft. Courts are
simply not designed for this sort of ongoing regulatory role,
particularly in a field as far removed from their expertise as IT.
At best, the Litigating States' proposals would create a
contentious, judicially-regulated regime in place of a market. At
worst, they would seriously impair IT innovation, at everyone's
expense.
CONCLUSION
For all these reasons, the RPFJ should be adopted, and the
Litigating States' proposals should be rejected.
Gene C. Schaerr, DC Bar No. 416368
Sidley Austin Brown & Wood LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-;8141
(202) 736-;8711 (fax)
Counsel for the Association for
Competitive Technology
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No.
98-;1232 (
CKK) MICROSOFT CORPORATION,
Defendant
STATE OF NEW YORK ex rel.)
Attorney General ELIOT SPITZER, et al.,)
Plaintiffs,
v. Civil Action No. 98-;1233 (CKK)
MICROSOFT CORPORATION,
Defendant.
DECLARATION OF JONATHAN ZUCK
January 25, 2002
Qualifications and Scope of Testimony
1. My name is Jonathan Zuck. I am over 18 years of age. I reside
at 3701 Upton Street NW, in Washington, DC. I am President and
Executive Director of the Association for Competitive Technology
(ACT). I make this declaration in my capacity as President of ACT,
which declaration is based on my personal knowledge of the facts set
forth herein. To my knowledge, the factual assertions presented in
this affidavit are true and correct.
2. ACT is a nonprofit association representing over 9,000
companies and individuals in the information technology (IT)
industry. ACT members include independent software developers,
hardware developers, systems integrators and on-line companies, many
of whom are small and medium-sized businesses who depend on
Microsoft technology for their success. Protecting the freedom to
achieve, compete and innovate, ACT is dedicated to preserving the
role of technology companies in shaping the future of the IT
industry. Although their businesses vary, ACT members share a
preference for market-driven solutions over regulated ones. Through
education, advocacy and collaboration, ACT gives the IT industry a
powerful voice in shaping its future. Although Microsoft is also an
ACT member, ACT's interest in the remedies phase of this case stems
primarily from the serious adverse impact the remedies proposed by
the Litigating States will have on ACT's other members, and
especially on independent software vendors (ISVs) in the business of
developing applications software for use by business and consumers.
3. I became President of ACT in 1998. Since assuming leadership
of ACT, I have been responsible for providing analysis, commentary
and background information on behalf of the IT industry on a broad
range of technology issues being debated in the public policy arena.
I have appeared on a wide variety of television and radio programs,
and do a large amount of writing for trade publications such as PC
Magazine, PC Week, DBMS, the Visual Basic Programmer's Journal, and
Windows Tech Journal. I have coauthored several books on the subject
of Windows application development, including Visual Basic How-To. I
also regularly speak at trade conferences in the United States and
around the world on matters important to ACT's membership.
4. Prior to becoming President of ACT, I spent more than 15
years as a professional software developer. Most recently, I served
as Director of Technical Services at the Spectrum Technology Group
in Washington, DC, a consulting firm specializing in client/server,
Internet and data warehouse solutions. Prior to that, in 1988, I
founded and served as President of User Friendly, Inc., of
Washington, DC, a company providing consulting and software
development services to local businesses. The company expanded into
commercial software development with Crescent Software in 1992. I
also set up U.S. operations for Matesys, a French software firm that
produced client/server development tools including ObjectView. At
Matesys, I was responsible for product management, marketing and
sales, and helped build the company into an $11 million business
before it was sold to Knowledgeware.
5. The purpose of ACT's Tunney Act comments, and of my
Declaration, is to provide the Court with the IT industry's
perspective on the Revised Proposed Final Judgment (RPFJ) as well as
the industry's perspective on more radical proposals that have been
advanced by various groups, including the Litigating States.
Specifically, this Declaration seeks to explain the importance of
the standard, constantly evolving Windows platform and the heavy
costs that would be imposed by the Litigating States' proposals or
any other proposals that impair Windows' integrity. For the reasons
explained below, ACT believes that the Litigating States' proposed
remedies could well be devastating to the IT industry, with no
corresponding benefit. In contrast, the RPFJ will likely preserve
and even strengthen the IT industry.
Value of Windows
6. In various ways, the Litigating States' proposals will
threaten the three features of the Windows operating system that
make it so valuable to the IT industry: (1) the fact that Microsoft
constantly improves it by adding new features and functionalities;
(2) its uniformity and widespread acceptance; and (3) its low cost
to consumers.
7. Constant Improvement and Addition of New Features and
Functionalities. One reason Windows is so valuable to the IT
industry is that Microsoft has constantly improved it. For example,
each new release of Windows contains software drivers for the major
new printers and other peripheral devices that have been released
since the prior version of Windows. This means that developers of
applications such as money management software, graphics programs,
etc., do not need to create their own drivers for these devices or,
worse, choose from among several competing drivers.
8. Virtually everyone in the IT industry, moreover, has a strong
interest in seeing this trend continue in the future. The addition
to Windows of such new functionalities as voice recognition, for
example, will allow software developers to add such features to
their products at minimal cost. Those costs will increase
dramatically and consumer benefits will be reduced if software
developers are forced to develop their own voice recognition
features or, worse, to port their programs to several competing
voice-recognition programs.
9. Windows' Uniformity and Widespread Acceptance. Uniform
standards are crucial to an efficient, rapidly evolving IT sector.
Communications and Internet standards provide the language necessary
for many different computers to talk or network with one another,
enabling, for example, users of the World Wide Web to locate and
retrieve the information they seek. Operating systems perform a
similar function, allowing hardware devices and software
applications to communicate with a computer. Indeed, it is Windows'
consistency that makes it so valuable.
10. As the District Court recognized in its Findings of Fact,
with Windows the operation of both the computer and the software is
the same from computer to computer. This means that the same
software will run on all Windows-based PCs and, by and large, all
hardware devices can be used as well. Hence, the consumer avoids the
need for time-consuming, often expensive retraining, and thus has a
greater incentive to learn how to use the existing system. Also, the
widespread acceptance that Windows enjoys also makes it easier to
ensure that computer products (both hardware and software) work the
way they are supposed to, and work well with each other. Operating
system consistency usually means that software will operate normally
even if the type of computer changes. For example, WordPerfect will
function as advertised on a Windows-based Dell computer or a
Windows-based Compaq computer.
11. In its consistency from one computer and software program to
another, Windows is markedly different from the UNIX operating
system. That system is in reality a collection of similar operating
systems, including Sun's Solaris, Digital's UNIX, HP's HP-UX, IBM's
AIX and SCO's UnixWare. See http://www.techweb.com/encyclopedia/
defineterm?term=unix. Although different versions may be desirable
with respect to many products, for most computer users such a
proliferation promises nothing but confusion, lost time, fewer
applications, and higher prices.
12. For example, a consumer who shifts from one UNIX-based
computer to another
[[Page 28132]]
UNIX- based computer may find that the two computers use different
UNIX versions with different features, functions, and
idiosyncrasies. Consequently, the consumer may have to devote
considerable time and expense learning how to perform the same tasks
on the second UNIX- based computer that she already knew how to
perform on the first platform. Worse still, the software
applications or hardware equipment she purchased for and used on the
first computer may be incompatible with the version of UNIX
installed on the second computer. And a UNIX user obviously has less
incentive to develop skills tailored to her particular system if it
is likely that she will use a different UNIX operating system in the
future.
13. For these reasons, the cost per potential customer of
developing a piece of software for the Windows operating system is
significantly lower than the cost for the UNIX operating system,
which translates into more software and lower prices for consumers.
14. In addition, more than any other operating system, Windows
has remained compatible with software written for older Windows
versions. As a result, consumers have much greater confidence that
the software they purchase will work when they upgrade to a new
Windows release. Hardware manufacturers and developers similarly
face much less risk that their R&D expenditures will be stranded
if Microsoft releases a new version.
15. Windows' Low Cost to Consumers. The Windows operating system
also allows the developer, or other providers of support services,
to support end-users at minimal cost. Each operating system not only
has signature application interfaces and user commands, it also
presents its own set of bugs and system errors. Thus, to provide
software or hardware support, a developer must train personnel to
identify and understand the idiosyncrasies of each operating system
under which it markets its product. These increased support costs
increase prices and decrease consumer demand for products and
services.
16. Consumers, moreover, obtain all of these benefits
inexpensively. Compared to the cost of a typical PC, and to the cost
of the software typically installed on that PC, the cost of Windows
(at about 5%) is relatively small. A low price, coupled with all the
benefits stemming from Windows' widespread use, drives up demand by
making computer products more affordable and attractive to
consumers.
17. The widespread use of an inexpensive, constantly evolving
operating system is particularly important in an industry as dynamic
as the information technology industry, which constantly generates
both new products and new uses for those products, and for which new
developments such as the Internet can redraw the competitive
landscape overnight. A popular operating system like Windows allows
consumers and developers to act quickly and with confidence that
software and hardware will work on most PCs today and in the future.
And the fact that many consumers choose Windows adds a measure of
stability to a highly dynamic industry. This Court should avoid any
remedies that would threaten or undermine these benefits. Potential
Adverse Effects of the Litigating States' Proposals on Consumers and
the IT Industry
18. The RPFJ will increase consumer choice while maintaining the
integrity of the Windows platform. OEMs and consumers will be free
to add whatever products they choose, even to the startup sequence,
or to disable access to Microsoft middleware, but consumers will
still be able to choose Microsoft products and programmers will
still be able to invoke Windows' full functionality. RFPJ u III.
19. In contrast, the Litigating States' proposals will impose
tremendous costs on the IT industry, its consumers, and the public
at large.
20. Balkanizing Windows. A central problem with the Litigating
States' proposals is that they would allow OEMs to create what would
amount to separate versions or flavors of the Windows platform. As a
result, the proposal would set in motion a process that could well
result in the balkanization of Windows, to the detriment of IT
companies and consumers alike.
21. The Litigating States' proposals would require Microsoft to
offer stripped-down versions of Windows, with the middleware
elements removed, at reduced prices. OEMs could then either leave
those elements out altogether or replace them with competitors'
products. As a result, a software developer can no longer assume
that particular Windows components will be readily available to
consumers. The developer must then purchase the needed feature from
Microsoft and include it with its own program, or it must force the
customer to purchase it from Microsoft. Either way, both the
developer and the consumer would ultimately suffer from the need for
a second, unnecessary transaction.
22. As an example, suppose that a company had an application
that relied upon a Windows innovation to automatically support the
display and navigation of its HTML-based on-line help system. The
proposed remedy lets OEMs sell Windows without that support
middleware, so the developer would have to incur the costs to
create, distribute, and support its own middleware for on-line help
display without delivering any greater value to customers.
23. The Litigating States' proposed remedy, moreover, actually
gives OEMs an incentive to strip down Windows before offering it to
consumers. That is because Microsoft shall offer each version of the
Windows Operating System Product that omits such Microsoft
Middleware Product(s) at a reduced price (compared to the version
that contains them). Litigating States' Proposed Final Judgment u 1.
Under the Litigating States' mistaken notion of Middleware, Windows
itself would have been called Middleware, since it originated as an
application running on top of DOS. There can be no doubt that the
implementation of this concept would effectively balkanize what is
now a uniform, coherent software platform. This balkanization would
of course destroy one of the characteristics of Windows that makes
it so valuable to developers of software and hence consumers its
consistency from one Windows-based PC to the next.
24. Uncertainty in the IT Industry. Yet another major cost of
the States' proposal is the tremendous uncertainty it would create
and, indeed, already has created in the industry and the associated
financial markets. The uncertainty surrounding the long-term
implications of the proposed remedies is already causing software
and hardware developers, as well as their current and prospective
clients, significant harm. I do not believe that the vast majority
of the conduct remedies proposed by the Litigating States will do
anything but create an unwieldy regulatory regime for software and
hardware designers.
25. A major source of uncertainty has to do with the future of
the Windows platform. We do not know whether, assuming that the
Litigating States' proposals or similar proposals are adopted,
Windows will continue to be the standard operating system, or
whether it will be viable at all.
26. For all these reasons, the mere fact that the Litigating
States have proposed such extreme remedies is already creating a
certain amount of paralysis among those in the IT industry who are
working to improve existing products and to create the products of
the future. Conclusion
27. While the RPFJ is superior to the Litigating States'
proposals in many ways, a crucial difference is that the RPFJ would
preserve the integrity of the Windows standard. By doing so, it will
preserve the integrity of the IT and particularly the software
development industry.
28. I declare under penalty of perjury that the foregoing is
true and correct to the best of my knowledge:
Jonathan Zuck, President,
Association for Competitive Technology
Signed this the 25th day of January, 2002
MTC-00027807
From: Shaun Savage
To: Microsoft ATR
Date: 1/28/02 11:04am
Subject: Stop MS, for the comsuner sake!!
HI
This is not a legal argument, it is a personal experiance in
dealing with MS. The settlement is bad. It does not deal the the
problem of MS rape of the consumer and developer.
MS Modis Operandi(sp) is to control the access to computers and
make money! This is at the expense of consumers and developers. When
Word98 first came out it could not write Word95 format. This
prevented the two programs sending file back and forth. This forced
the Word95 user to upgrade(spend money).
MS does NOT follow standards!!! Even when thay help define the
standards they break the same standards they help define. This
forces developers to write new work arounds for the
``intentianl bugs/features''. This make MS products
incompatiable with all other software, because these bugs are
unpublished.
There is a difference between API (Application Programming
Interface) and (protocols/file formats). An API requires a library
that know the (protocol/file format).
[[Page 28133]]
To be interoperable the lowlevel protocols and file formats need to
be known. This includes security protocols. MS does not intovate!!
they take existing ideas and comercialize the one method of doing
that idea. The only reason they can do that is that they are an
monopoly. If low level formats and protocols are published then the
``secret'' is in the quality in programming the
application. This is where the compitition come in. If they can do
something better than someone else in an open playing field, that is
the way to compete. An monoculture of computers is very instable.
the security of MS products is terrible!! When you allow the mix of
data and program to be exchanged between systems then there is a
lack of security. MS allows the transfer of data AND code in its
data documents. VERY BAD! A way to force MS to improve service/
products to the consumer is to allow compitition. To allow
compitition ALL (that means ALL) low level protocols, file formats,
and algorithms needs to be in the public domain. MS will try to
sneak out of doing any change in its MO, and put paper work and
beurcrat stuff, and legal stuff between change. Just look at the
lies and ``tricks'' they pulled during the trial phase.
Any settlement needs to have teeth. Really BIG teeth!!!
I, as an consumer, can't take legal action against MS, I don't
have the money, time,...
I may have a justice case the MS harmed me, but I can never seek
or have justice on my own.
``The goverment is here to protect me from things I can't
protect myself from''
Please protect me from Microsoft!
Shaun Savage
20477 SW Tesoro CT
Aloha OR 97006
[email protected]
MTC-00027808
From: Hans Reiser
To: Microsoft ATR
Date: 1/28/02 11:03am
Subject: Microsoft Settlement
If you are not able to process html format for proper printing,
or you lost the html version I sent, please accept this email
(excepting this sentence) as my comment on the proposed settlement,
otherwise please accept the html version which preceded this.
MS Settlement Reflects Deep Failure To Understand Implications
of ``Patching'' Technology
The positions of the DOJ, the States, and even Lawrence Lessig
are based on a failure to understand that something unique to the
software industry, which programmers call ``patching''
technology, makes software products infinitely separable if an
essential facility called ``source code'' is provided. No
disclosure of APIs, and no structuring of APIs, can accomodate all
potential products in the manner that disclosure of source code plus
use of patching does. Every line of source code is a possible
location for insertion of new code that forms a new product. This
new code can be distributed separately from the original source
code, and post-sale added by the consumer, via what programmers call
a ``patch''. Patching technology fundamentally changes
product separability, making separation dependent on the essential
facility called ``source code''. Non-programmers seem to
not yet understand this. Persons who work in the Linux industry know
this from experience, and I will try to convey this experience as
someone who has built a business from the sale of patches (for the
ReiserFS filesystem) in the only market where I had access to kernel
source code.
Software is unique in that ``Compiler'' technology
allows consumers to effectively reassemble software themselves.
A compiler is a computer program that takes a set of
instructions about how to build a program (called ``source
code''), and builds the software. Almost all software is
actually assembled by compilers not humans, and the work of humans
is almost entirely in creating the source code.
You have probably never used a compiler to assemble software
yourself as a consumer because:
*you are not a Fortune 500 company with a staff of trained
system administrators
*you probably use Windows not Linux, and Windows does not give
you access to the essential facility known as ``source
code'' that your ``compiler'' needs to reassemble
your software
*the new crusade by Linux to make the compilation process user
friendly has only just started Because you have never done it
yourself, your intuition may tell you that it is not feasible, or
that it is not feasible for a large market. Beware this intuition,
it is simply wrong. The Fortune 500 are a significant market for
antitrust purposes, and Linux is rapidly moving towards making
asking compilers to perform reassembly a friendly experience for
average persons.
It is frequently efficient to post-sale integrate software for a
large part of the market, and it is getting more so with time. This
is deeply different from physical products such as cars, in that
most persons do not find it as effective to buy a collection of
parts and self-assemble because they would have to do the work of
assembly. With software, the computer does the work of post-sale
assembly, and the consumer simply tells the computer to do it, goes
to make some tea, comes back, and the job is done.
For instance, the business that I own (Namesys, see
www.namesys.com) made its money entirely from sales of a filesystem
(ReiserFS) that was sold separately from the operating system
(Linux) for the first few years of our business. The revenues from
this were enough to support us. Paying consumers such as MP3.com
would take our source code, add it to the Linux kernel source code,
use a compiler, let their computer do a few minutes of work to
reassemble the kernel, and get a better filesystem as a result of
it. This allowed MP3.com to save $20 million dollars according to
their estimate. Others in my industry also sell filesystems
separately from operating systems (www.veritas.com got its start
that way, and still makes simply enormous amounts of money from
doing so, there are others....).
Notice that I say filesystem. Your intuitive notion of what is
an operating system probably tells you that the filesystem is part
of the operating system. You may be tempted to think that what is
part of the operating system is not viable as a product sold
separately from the operating system. Lessig thought so, and this is
because he lacks experience selling operating system components in
the Linux/Unix programming industry.
Think of Jefferson Parish, and understand that software takes
the fine distinctions of Jefferson Parish to their extreme:
*Software can be integrated in its functioning, and yet separate
in its sale, and this means separate as a product for purposes of
anti-trust law. (Most software products are functionally integrated
with a separately sold operating system.)
*Software can be integrated in its physical distribution, yet
separate in its sale. (Purchase of a CDROM holding the software is
often separated from purchase of a license to use, and it is often
considered efficient by publishers to bundle physical distribution
without bundling licensing.)
*Software can be sold and transmitted over the Internet with no
physical product created at all.
There is only one characteristic that necessarily defines the
separation of a software product, and that is the license. A license
is a contract, and contractual tying is illegal under the Clayton
and Sherman acts.
Yet wait, if software products are so easily separable, why
aren't there far more OS components out there being sold? Control
over an essential facility is the answer.
Secret source code can be an essential facility the equal of
putting a combination lock on every bolt in a car, and then
declaring the combination to be a trade secret.
You wouldn't allow this for a car, yet traditional industry
practice is that source code is kept a trade secret. The crisis our
industry is facing, in which monopoly control is the norm in all
parts of it not in infancy, is directly caused by this industry
practice of secret source code. It is not necessary that the text be
kept secret for copyright protection on books to be maintained, and
it is also not necessary for software that the source be kept secret
to protect ownership of it. Far from it, the underlying historical
motivation of copyright and patent laws is to bring more information
out of trade secret status.
We have a widespread well-entrenched industry practice that
keeps an essential facility (source code) under the control of
monopolists (of which Microsoft is merely the largest), and we have
almost complete monopolization of the software industry in each of
its mature niches. These are cause and effect.
I pray to you to not allow their continuance. Open up the
operating system source code, and go even further. Declare that
software is per se separable where source code is available. Declare
source code to be an essential facility. Return copyright and patent
practices to their historical roots, and require that information
created be made public if it is to be protected.
Please do not hesitate to ask me to comment in greater detail or
respond to your questions in this matter. I am available for in
person testimony if desired.
I have great respect for Reilly and Lawrence Lessig generally,
and for their
[[Page 28134]]
arguments in most other matters, and I hope it is understood that I
merely have an advantage in possessing ``patches'' sales
experience.
As for my needs, please create the legal conditions which will
allow me to port ReiserFS to Windows and sell it separately from the
operating system, by giving me the access to source code that I need
to do the port, and to sell the patch separately from the OS.
Essential Facilites Related Citations
[U.S. vs. Trans-Missouri Freight Ass'n, 166 U.S. 290 (1897)] is
the original precedent.
[MCI Communications v. AT&T Corp. 708 F.2d 1081 (7th Cir.),
cert. denied, 464 U.S. 891 (1983)] describes a case more recent (it
is a persuasive rather than controlling authority). Note that the 4
part test lacks any component referencing the need for a market to
have been active at some point prior to the refusal to deal, and is
the better for that lack.
Profit To The Monopolist From Tying
The Chicago School, to which the current DOJ administration
adheres, holds that there is no incentive to monopolists to engage
in tying because it believes they cannot extract more profit from
forced sales of the tied product than they would from raising the
price of the tying product, unless business efficiencies exist. For
this reason, they feel that there is no need for the Clayton
prohibition against tying, and feel there are civil liberty reasons
to avoid government intervention into markets. Their analysis
assumes the tied product is part of a fully competitive market, and
for this reason it is deeply flawed.
The profit to the monopolist from engaging in tying is the
difference between the market price and the marginal cost. For less
than fully competitive markets, which is to say most markets, this
is a non-zero amount. For software, especially software sold and
distributed over the Internet, the marginal cost is close to zero,
and the motivation for engaging in tying is extremely high. Senators
Sherman and Clayton were much more knowledgable about economics than
the Chicago School is paid to think (various monopolists have given
large funding sums to pro-trust law schools). Some might like to
think that, but for government, free choice expressed in the market
would free us, but in sad reality the government is not the only
means by which people organize to control and plunder the public.
Cartels and monopolies take away our freedoms as well. The only
thing worse than a government controlled economy is a monopoly
controlled economy.
The Settlement As A Whole
I am opposed to the settlement as a whole. President Bush owns
stock in Microsoft, and he appointed to head the antitrust division
at the DOJ someone who is widely known to be opposed to laws against
tying. When someone is opposed to a law that they are supposed to
prosecute, they should not be allowed to settle a case their
predecessor started. The proposed settlement is designed to be
toothless, and to do nothing. Do not allow President Bush to settle
this case, and thereby cripple the ability of the next
administration to enforce the law. The failure of Microsoft and the
DOJ to adhere to the contact disclosure provisions of the Tunney Act
is one more reason to reject the settlement.
Conclusion
If you have the courage to firmly reject this settlement, if you
declare software to be per se separable, and if you move
aggressively to enforce the claim of the States while we wait for a
new administration, you will have earned the admiration of the
American people. Some of them will even know this.
More importantly, you will.
Sincerely,
Hans Reiser
Owner/Operator of Namesys
Author of ReiserFS, a significant component of Linux
5918 Marden Lane
Oakland, CA 94611
phone: +1 510-;339-;1044 (USA)
+7 095 290 6405 (I am currently in Russia)
MTC-00027809
From: Joanne
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:08am
Subject: Microsoft Antitrust lawsuit
Mr. Ashcroft,
Attached is a letter from me regarding the antitrust lawsuit
agaist Microsoft. Please consider my feelings on this matter.
Regards
Joanne Turner
210 Manchester Street
Danville, CA 94506
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I write today to document my support of the recent settlement
proposed by the DOJ in its antitrust lawsuit against Microsoft. I
support this settlement because its formalization will mean that
Microsoft's attention will no longer be diverted and they can get
back to the business of creating excellent products. The formalized
settlement will also mean that the IT industry will get the boost it
has lacked since the beginning of this case. This boost will
undoubtedly affect our failing economy positively.
I am pleased with the terms of the settlement as it stands, and
I feel that Microsoft has made substantial strides to honor these
terms. The compliance with these terms will ensure that
competitiveness in the IT industry will be highly increased thereby
giving consumers greater choices. Microsoft has already agreed to
give their competitors license to their intellectual property and
have also granted access to internal codes and protocols. These
moves are all pro-competition and should more than quell the
concerns of Microsoft's opponents.
It is my hope that you will see how crucial formalize this
settlement is to the consumer, the IT industry and the economy and
bring this matter to an expeditious close.
Sincerely,
MTC-00027810
From: Onnie Shekerjian
To: Microsoft ATR
Date: 1/28/02 11:09am
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
January 28, 2002
Dear Ms. Hesse:
The United States v. Microsoft Corporation litigation, which was
brought nearly four years ago, should be ended with the consent
decree by your Court.
Products which formed the basis for the Microsoft case in 1998
have since disappeared, becoming obsolete antiquities to be viewed
with a smile and a ?remember when? usually reserved for hula-hoops
and RC Cola. Other issues at the core of the case have also changed
almost unidentifiably or have been sold or merged with others.
The failed Microsoft Network is one of the best examples. It was
part of the case in the beginning, but has since faded from the
landscape as another of Microsoft's unsuccessful ventures. What's
lost in the haze in the anti-trust argument is that Microsoft has
probably experienced as many failures as successes, but instead of
employing more attorneys to even the playing field by litigation,
they employed more developers and more R&D folks.
It's clear that Microsoft's innovations over the past 25 years
were not anti-competitive, witnessed simply by the robust software
marketplace we have today. In fact, the products and platforms
Microsoft offers continue to make other products possible, like
educational and learning programs.
New products and consistently decreasing prices cannot be
symptoms of a closed or anti-competitive marketplace. The cries of
?monopolist!? against Microsoft, it turns out were an overreach.
More regulation will only damage one of the most promising
industries in America. I hope you will sign off on the settlement
agreement between Microsoft and the Justice Department and nine
state attorneys general.
Sincerely,
Onnie Shekerjian
1301 East Myrna Lane
Tempe, Arizona 85284
MTC-00027811
From: Guinn Unger
To: Microsoft ATR
Date: 1/28/02 11:10am
Subject: Microsoft Settlement
Attorney General John Ashcroft
Dear Mr. Ashcroft:
I believe that the demands to break up Microsoft in the
beginning of the antitrust suit against it would have had an adverse
effect not only on my business but the IT industry as a whole.
Fortunately, the settlement reached between Microsoft and Justice
Department is reasonable. To settle this case is in the best
interests of the consumer and the economy. While I do believe that
sanctions against Microsoft are appropriate, we need to react
rationally and not do anything that would result in damage to the
economy.
Thank you.
Guinn Unger, President
[[Page 28135]]
Unger Technologies, Inc.
Microsoft Certified Partner
Compaq Solutions Alliance Partner
[email protected]
www.ungertech.com
281-;367-;2477
Education is not the filling of a pail, but the lighting of a
fire.--;
William Butler Yeats
MTC-00027812
From: Frank Patitucci
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:10am
Subject: Microsoft Settlement
The purpose of this email is to add my voice to those opposed to
the proposed settlement of the Microsoft Antitrust case. Much
stronger penalties and remedies are necessary if Microsoft's
behavior is to change.
The company has been convicted of committing crimes. It needs a
punishment that matches the crime.
I am the CEO and Chairman of a private, employee owned company
with about $20 million revenue and 200 employees. We provide
employee relocation services to corporations when they transfer
their employees. I am a card carrying capitalist. I have a degree
from Stanford Graduate School of Business and have served as a part
time professor there. Our capitalist system is the most productive
economic engine ever invented. BUT it needs to be protected and
guided by government (all branches) in order to continue to serve us
and to be a model for the rest of the world.
Unfortunately, Microsoft represents capitalism at its worst.
Here's how Microsoft's anti-competitive and anti-capitalistic
behavior affects my company.
First, our company is now almost entirely dependent on Microsoft
technology to provide our services. Frankly, when our computers go
down we cannot do productive work. We are dependent on internal and
web based systems to communicate with our clients, to manage our
vendors and to perform basic business functions. All of our systems
are Microsoft. And according to our IT staff ``we have no
choice''.
Second, Microsoft limits the software we can purchase. At one
point we had a database system called Foxpro. Foxpro was purchased
by Microsoft. We purchased an accounting system called Great Plains.
Great Plains was also purchased by Microsoft. We used to use word
processor, spreadsheet, e-mail and presentation software produced by
other companies that worked on the Microsoft operating system. I am
now told by our IT staff that we can no longer purchase these
products because they are not ``compatible'' with our
other software. What happened to the companies that produced these
excellent products? ``We have no choice''.
Third, we are paying more to Microsoft software than we should.
How else could they accumulate $35 billion in cash in the face of
the current recession? When I ask our staff what would happen if
Microsoft increased tripled their licensing fees, they say,
``we have no choice''. We would have to pay whatever price
they ask. There is no other product or service that we purchase as a
company, other than public utilities, for which we have absolutely
no choice.
The long term success of capitalism depends on free markets,
fair competition and freedom of choice in selecting products and
services. We don't have any of these in this very important sector
of our economy, due to the illegal practices of one company:
Microsoft.
I believe the Courts have two choices. The first is to allow
Microsoft to maintain it's monopoly. If so it should be declared a
public utility and regulated as such. Alternatively, the company
should be broken up into enough parts that will encourage
competition. This kind of remedy has proven to be successful in both
the oil and telephone industries.
The proposed settlement is neither of these, and should be
rejected. One last point, the fact that Microsoft is actively
lobbying for the proposed settlement is cause for very great
concern. We need to remember that Microsoft committed crimes and the
remedies should be painful to the criminal. The current solution
will send the worst message possible to current and future
capitalists.
Sincerely,
Frank M. Patitucci
Chairman, CEO
ReloAction
MTC-00027813
From: Carlos Andrade
To: Microsoft ATR
Date: 1/28/02 11:12am
Subject: Microsoft Settlement
January 16, 2002
Attorney General John Ashcroft
The Justice Department
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing in support of the recent settlement between the
Department of Justice and Microsoft. I am not as acquainted with all
the details of this that I would prefer, but this entire lawsuit
seems to have come about simply because some of Microsoft's
competitors grew weary of trying to compete with Microsoft's Free
Internet Explorer. I personally use IE and have done so for a while.
I appreciate the fact of having free software with the operating
system that I got with my computer. I understand that Netscape does
not appreciate not being able to get my $40 or so dollars which I
would have had to pay to them to get an Internet Explorer, because
Microsoft provided it for free. This, in my opinion, is not a proper
utilization of our legal system.
I use Microsoft products in my business and have found that
their software is simply better and more reliable than anyone
else's. I have used Netscape which I had received from my ISP, but I
found Microsoft's product more user friendly and les problematic
when it came to updates. Microsoft exerted no amount of influence
for me to reach that conclusion. Simple experience has done that.
I believe that this lawsuit was simply an effort to force
Microsoft to ``dumb down'' its efforts and allow other,
software developers a chance at catching up. I also think that when
a customer buys an operating system that has some added features
such as a stable Internet explorer, the only one that benefits is
the consumer. They don't need to go out and purchase additional
software to get on the web which is what most customer are now
getting computer for. This settlement has thankfully nullified the
effort to separate IE form Windows. It is fair and offers pragmatic
answers to complex problems, such as competitors'' worries
about interoperability of Windows and OEMs irritation with Microsoft
for shipping additional software along with Windows. Though the
settlement extends a bit beyond the scope of the original lawsuit,
it does end the litigation and should, in my opinion, be accepted.
Sincerely,
Carlos Andrade
Carlos Andrade
Network Administrator
MTC-00027814
From: carlos kennedy
To: Microsoft ATR
Date: 1/28/02 11:13am
Subject: Fw: Attorney General John Ashcroft Letter
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
January 28, 2002
Dear Mr. Ashcroft:
I am extremely pleased to hear that the Justice Department has
finally decided to end its persecution of Microsoft, and agree to a
settlement. Microsoft was never a monopoly; it simply provided the
best product that people enjoy.
I hope that people will appreciate what Microsoft has sacrificed
in order to bring an end to this settlement. Among the many terms
they have agreed to, Microsoft has promised to allow computer
manufacturers to pick and choose not only what Windows programs they
will feature, but they can also include numerous Microsoft
competitive programs in the computers they ship.
There are, of course many other terms in the settlement that are
also damaging to Microsoft, but I just wanted to make a brief point,
as I'm sure there will be numerous emails coming in on the side of
Microsoft. Thank you for taking the time to hear me out on this
matter.
Sincerely,
Carlos Kennedy
4 Marwood Court
Flat Rock, NC 28731
828-;697-;1203
MTC-00027815
From: James D Lane
To: Microsoft ATR
Date: 1/28/02 11:13am
Subject: Microsoft Settlement
Gentlemen;
This thing has drawn on far to long. I shiver to think of going
back to the good old days of DOS. Force an end to this now and don't
let the states draw this out any longer. Jim Lane, a Windows fan.
MTC-00027816
From:
[email protected]@inetgw
To: Microsoft ATR
[[Page 28136]]
Date: 1/28/02 11:13am
Subject: Re: Has Your Opinion Been Counted?
THE ECONOMICS OF THIS COUNTRY HAVE BEEN DAMAGED BY THE US
GOVERNMENT BRINGING AN ANTITRUST SUIT AGAINST MICROSOFT, WHICH
COMPANY HAS DONE MORE TO ADVANCE COMMUNICATIONS AND THE COMPUTER
INDUSTRY IN THIS COUNTRY THAN ANY ONE ELSE.
FOR LORD'S SAKE, PLEASE ACCEPT THE SETTLEMENT NOW BEFORE THE
COURTS AND LET'S GET ON WITH THE REAL BUSINESS OF THE COUNTRY. TOUGH
COMPETITION BETWEEN COMPANIES IS WHAT HAS MADE THIS COUNTRY GREAT.
THOSE STATES THAT DON'T WANT TO ACCEPT THIS AGREEMENT SHOULD BE
THROWN OUT OF THE UNION. THE PEOPLE OF THEIR STATES HAVE BENEFITED
FROM MICROSOFT AND ITS CREATIVE OPERATING SYSTEMS FAR MORE THAN ANY
ALLEGED UNPROVEN DAMAGE.
THE DEPARTMENT OF JUSTICE ALMOST RUINED IBM WITH THE EXPENSES OF
ITS ANTITRUST ACTI ON AGAINST THEM AND THEY HAVE GONE A LONG WAY IN
DAMAGING THE ABILITY OF MICROSOFT TO COMPETE IN THE MARKET PLACE
WITH THE EXPENSE OF DEFENDING THEMSELVES AGAINST SOME AN UNWARRATED
ANTITRUST ACTION..
ALFRED C. BODY [email protected]
MTC-00027817
From: Scott Ventura
To: Microsoft ATR
Date: 1/28/02 11:14am
Subject: Microsoft Settlement
From:
Scott Ventura
9 West Squire Drive Apt 1
Rochester NY 14623
585-;475-;9865
[email protected]
To:
Renata B. Hesse
Antitrust Division
u.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
FAX: 202-;307-;1454 or 202-;616-;9937
Subject: Microsoft Antitrust Remedy Proposal
I am writing to express my disapproval of certain terms of the
remedies set forth in the antitrust case against Microsoft. My
concerns stem from examining the document located at the following
URL: http://www.usdoj.gov/atr/cases/f9400/9495.htm
The proposed remedy is a bad idea. As currently outlined, it
allow Microsoft to gain an even larger market share rather than
force it to compete more fairly.
Documentation/Disclosure/Licensing of Security-Related
Interfaces III J: No provision of this Final Judgment shall:
1.Require Microsoft to document, disclose or license to third
parties: (a) portions of APIs or Documentation or portions or layers
of Communications Protocols the disclosure of which would compromise
the security of a particular installation or group of installations
of anti-piracy, anti-virus, software licensing, digital rights
management, encryption or authentication systems, including without
limitation, keys, authorization tokens or enforcement criteria; or
(b) any API, interface or other information related to any Microsoft
product if lawfully directed not to do so by a governmental agency
of competent jurisdiction.
There is a saying in the computer security industry:
``Security by obscurity is no security at all.'' The
phrasing in the above passage gives Microsoft leeway to obscure from
public scrutiny the protocols and APIs that are of greatest
importance to computer security. Encryption and authentication are
complicated concepts. Encryption systems must be subjected to
extensive attacks by the security community at large before they can
be trusted. Furthermore, the interfaces to the encryption system
must also be examined by security experts before they can be
trusted. According to III J 1, Microsoft will not be required to
document, disclose, or license this information to the vendors of
security-related products whose security would be compromised by
flaws in the API or protocol. Microsoft will be the only company in
possession of the information needed to make security-related
software secure.
Although I am no fan of digital rights management systems, I
must express my concern for copyright holders, as well. Copyright
holders will be subject to the greatest losses if any level of the
digital rights management system is compromised. If the decision of
to whom to document, disclose, and license the details of the
digital rights management system in Windows is left solely to
Microsoft, then Microsoft could enter into exclusive agreements with
some copyright holders and not others. This would result in an
imbalance in the ability of content providers and copyright holders
to protect their properties to the abilities of the best experts
royalty money can buy.
Worse, Microsoft could elect to not document, disclose, or
license these details to any non-Microsoft entity. Then Microsoft
would be poised to become the only copyright holder with access to
the information required to make working digital rights management
systems for their properties.
Conclusion
Microsoft is an extremely slippery company. They have reached
their current position of market dominance through questionable
business practices and not quality product. I sincerely hope that
the final version of the remedies forces Microsoft to either produce
good software or get out of the way so others can. We've been
tolerating insufficiently useful computers for too many years
already.
Respectfully,
Scott D. Ventura
--;
Scott Ventura
[email protected]
http://FeedMyEgo.com/
MTC-00027818
From: Brian Gollum
To: Microsoft ATR
Date: 1/28/02 11:15am
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse: I am writing to give my comments on the
Microsoft antitrust
settlement. I believe this settlement is counter to the
interests of the American public, deleterious to the American
economy, and inadequate given the findings of fact in the trial.
Microsoft's anti-competitive practices are counter to the law and
spirit of our free-enterprise system. These practices inhibit
competition, reduce innovation, and thereby decrease employment and
productivity in our nation. Microsoft's monopolistic practices cause
the public to bear increased costs and deny them the products of the
innovation which would otherwise be stimulated through competition.
The finding of fact which confirmed that Microsoft is a monopoly
requires strict measures which address not only the practices they
have engaged in in the past, but which also prevent them from
engaging in other monopolistic practices in the future.
It is my belief that a very strong set of strictures must be
placed on convicted monopolists to insure that they are unable to
continue their illegal activities. I do not think that the proposed
settlement is strong enough to serve this function.
Sincerely,
s/Brian L. Gollum
Brian L. Gollum
5820 Phillips Avenue
Pittsburgh, PA 15217
412-;422-;8455
p.s. I agree with the problems identified in Dan Kegel's
analysis of the settlement .
MTC-00027819
From: Erin Barnes
To: Microsoft ATR
Date: 1/28/02 11:15am
Subject: Microsoft Settlement
I think it is time to end the suit against Microsoft. The
settlement is sufficient and will allow Microsoft and the rest of
the industry to move on and continue building great products for
consumers. The continuation of this suit is bad for the US econonmy
and bad for consumers.
Thank you,
Erin Barnes
Pacifica, CA
MTC-00027820
From: j jasper
To: Microsoft ATR
Date: 1/28/02 11:16am
Subject: Microsoft Settlement
a bad idea
please reconsider
thanks
MTC-00027821
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 11:16am
Subject: Microsoft Settlement
I believe the settlement is balanced and fair for the industry
and consumers. Given the
[[Page 28137]]
current climate after the recession and 9/11, I feel that we need to
settle this and not let it drag on, so we can focus on economic
recovery and fighting external enemies.
Thanks, Diana Heileman
CC:[email protected]@inetgw
MTC-00027822
From: Thomas Vaught
To: Microsoft ATR
Date: 1/28/02 11:16am
Subject: Microsoft Settlement
As a software developer for over 11 years, I am very
dissappointed in the Microsoft settlement. It basically validates
the Microsoft monopoly without any acknoledgment of guilt or
meaningful reparations to the industry they have damaged.
I believe that Microsoft has illegally obtained their monopoly
and are using it to further their reach while keeping innovative
technology such as Java from reaching consumers.
Please consider forcing Microsoft to ship a standards compliant
version of Java with their operating system. This will allow
developers and consumers to benefit from the latests technology for
writing and delivering applications.
Also, I believe that Microsoft should be forced to ship Netscape
along with Internet Explorer so that consumers will have a choice of
browers.
Thank you for your time and consideration.
Thomas E. Vaught
9844 S. Bucknell Way
Littleton, CO 80129
MTC-00027823
From: chip@the-
altmans.net@inetgw
To: Microsoft ATR
Date: 1/28/02 11:07am
Subject: Microsoft Settlement
I think the remedy is fair and should end the case completely. I
do not feel that Microsoft has hurt the public in any matter. Ten to
fifteen years ago the computer industry was in a mess. There was no
standard operating system. If you went to purchase a computer at
Radio Shack you would get a computer running Deskmate. If you went
to an Apple distributor you got the Apple operating system. If you
went to IBM you got their OS operating system. And then of course
you had Windows. Kids in school learned Apple but could not go into
businesses and run their computers. The average person had to have
an apple computer so their kids could do homework and an IBM
computer so they could work at home.
Since then and thanks to Microsoft the industry has been
standardized, kids in school can go out in the world and run
computers. Employees can go home and work on a computer with the
same system they use at work. By becoming standardized, how does
this hurt consumers? Microsoft has saved the average consumer
thousands of dollars. By their continued innovation and development
of the operating system they have added tools and recourses that
would have cost the average consumer a lot of money. If Microsoft
charged for each addition to its product, or forced the consumer to
purchase such things as Internet explorer, word, notepad, a
calculator, Paint, the basic TCP/IP protocols, the average person
could not afford these add ons and would be shut out of the
internet.
As for Internet Explorer, that was the best thing that Microsoft
ever did. It made surfing the web enjoyable. Question, did you ever
try to use Netscape Navigator before Internet Explorer came along, I
have and it sucked. You had to pay around $50.00 for it, it took
several hours to down load and would crash so often that trying to
look up one item would take hours. Microsoft came and gave you
Internet Explorer, which at first had its problems, but when they
finally integrated into the operating system, it was fantastic, you
could surf the net and really enjoy the experience. System hangs and
lockups that occurred often before integrating disappeared. And by
integrating the software it saved me money, how DID this hurt me? I
know the argument it hurt competition, my argument is it did not
hurt competition, it caused competition. It caused Netscape to wake
up and make a better product. At a more reasonable price, this let
the consumer save money by being able to buy a! better product at a
lower cost. Microsoft did nothing wrong. Those consumers that wanted
Netscape still continue to use it, if Netscape wanted to keep
customers, and gain customers, they should have developed a product
that knocked the socks out of Internet Explorer, but did they no,
they cried and sued.
They gave up, because they would not take the time and resources
to develop a better product. I, know, the argument how could they
when they did not have the money because Microsoft was giving the
product away, simple, build it and they will come. The consumer
wants better products and if the consumer found an item better those
that can afford will buy it.
Is it wrong, to build your business, and to protect your
business. NO, it is not wrong! Microsoft played hard ball, yes, but
how is that different from any other company that wants to grow,
expand, and make a difference. Netscape, AOL, Sun Microsystems and
others are playing hard ball now, buy suing Microsoft, because of
their jealousy over the dominance Microsoft has. If the companies
really cared about the consumer, they would build better products
that would blow Microsoft way. But do they no, the run and scream
and sue Microsoft, because Microsoft does not play fair. If these
companies would build better products on the same caliber as
Microsoft, consumers will go there; they will buy what they want.
But stripping down Windows will only hurt the consumer, because the
costs associated with buying each piece of software will be more
than the average consumer can afford. But those that can afford the
software will buy the better software. How is this any different !
from the auto industry? Yes, I know that there are several companies
competing equally, If I went to ford to buy car should they be
required to give me a stripped down car. So that I can go to
Chrysler to purchase the motor, to Bose for the stereo, to Goodyear
for the tires, to Monroe Muffler for the Shocks, and Muffler. NO,
they provide the basic systems and then you buy the additional or
custom items that you want. Microsoft does that they provide the
consumer with the basics and let the consumer buy what they want.
The problem is the other companies are not making products that are
better and more desirable.
End the lawsuit now and let Microsoft go back and build and
innovate so that the envelope of information and knowledge becomes
more reliable and available to the average consumer, and so that
these other companies will be forced to push the envelope even
further buy building better software. If these companies would just
worry about building better software that pushes the limits, they
would not have to worry about Microsoft.
MTC-00027824
From: Wilhelmina J Matern
To: Microsoft ATR
Date: 1/28/02 11:16am
Subject: mICROSOFT sETTLEMENT
Dear DOJ,
May I beg of you either to stop this Microsoft settlement
nonsense, or just retire and get out of the way?
This is all making our government look like something we can all
be thoroughly ashamed of. To spend this much time on Microsoft's
``unfairness'', a company so productive and worthwhile to
America's economy - and by a government so monopolistic and
unproductive of any real benefit to the public, and towards which we
are becoming more and more cynical in re the grandstanding for self-
aggrandizement that is about all we see government officials doing
anymore.... we hear or see another thing on this suit and we just
cry out ``oh,no!''. While we are all thinking about an
economic stimulus and instead this goes on and on and on and.....
the ultimate non-sequitur. Please, get it over with and move on to
Marc Rich, or the dishonest Fish and Game people trying to shut down
so much of our economy with lynx hairs, or the mess DOI has made of
Indian Trust Funds, or .. you can name it, we know you can.
Please reassure us again that the federal government sees and
understands itself as the chief impediment to justice in society
today and will not tolerate this core human indecency in Washington
any longer. And believe me, we'll be pulling for you again with loud
hurrahs soon's we see the first inkling of it!!!
We DO wish you all the very best,
Rev. Dick Matern
Ft Defiance ,AZ
MTC-00027825
From: Rich Smith
To: ``microsoft.atr(a)usdoj.gov.''
Date: 1/28/02 11:09am
Subject: Punish Microsoft
Dear Sirs,
PLEASE punish microsoft.
Richard A. Smith
Thousand Oaks, California.
MTC-00027826
From: Chip Witt
To: Microsoft ATR
Date: 1/28/02 11:17am
[[Page 28138]]
Subject: Microsoft Settlement
To whom it may concern:
The proposed settlement against Microsoft has many flaws, but my
problem with it is more philosophical in nature than most that I
have heard. My understanding is that this judgment is supposed to be
a punitive measure to correct monopolistic behavior in what should
have been an open market place. With that in mind, should not the
mere threat of such judgment modify Microsoft's behavior?
I have followed the proceedings against Microsoft fairly closly,
as I am an IT Professional. During the trial through today,
Microsoft continues to forge ahead mightyly developing partnerships
and products that forcably squeeze competitors out of any market
they decide to pursue. It is my humble opinion that the proposed
settlement should take greater care to protect the consumer by
evening up the playing field on which Microsoft competes. I see this
proposed settlement as nothing more than a slight public slap on the
wrist. Although it is a step towards the right direction in limiting
some of Microsoft's anti-competitive practices, it does not prevent
Microsoft from finding new ways to exploit the gains they have made
in the market place as a monopolist.
This is much akin to closing the barn door after the cow has
already gotten out. More must be done.
Thank you for your time and the opportunity to comment. --;
CW
Chip Witt, MBA
Witt'z End Technologies
PO Box 885
Cotati, CA 94931-;0885
(V) 1-;888-;719-;9277
(F) 1-;800-;514-;3098
(E) [email protected]
(W) www.wittzend.com
MTC-00027827
From: Fairborn Area Chamber of Commerce
To: Microsoft ATR
Date: 1/28/02 11:18am
Subject: Microsoft Settlement
Attention:
Ms. Renata B. Hesse,
Trail Attorney,
Department of Justic,
Washington DC
Microsoft has for many years provided products to consumers and
businesses and has also provided opportunities for other such
companies to develop programs for the Windows system as well. The
settlement worked out by the Department of Justice and the
bipartisan group of state attorneys general to bring the anti-trust
case to an end should be agreed to by all parties in order for
people to return to work especially during this critical period we
are now facing in our economy. We support the Department of justice
and the Attorneys General for their untiring efforts to put an end
to this case and agree to a settlement that is in our nation's best
interest. We don't need any more people added to our unemployment
roles.
John G. Dalton, Executive Director
Fairborn Area Chamber of Commerce
12 N. Central Ave.
Fairborn, OH 45324
Ph: (937) 878-;3191 FAX: (937) 878-;3197
E-Mail: [email protected]
Web Page: www.fairborn.com
MTC-00027828
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 11:05am
Subject: Microsoft Settlement
Please refer to the attached letter concerning my support of the
proposed Microsoft settlement.
(See attached file: USAG DJ 25-Jan-02.doc)
This message and any attachments are confidential to the
ordinary user of the e-mail address to which it was addressed and
may also be privileged. If you are not the addressee you may not
copy, forward, disclose or use any part of the message or its
attachments and if you have received this message in error, please
notify the sender immediately by return e-mail and delete it from
your system.
Internet communications cannot be guaranteed to be secure or
error-free as information could be intercepted, corrupted, lost,
arrive late or contain viruses. The sender therefore does not accept
liability for any errors or omissions in the context of this message
which arise as a result of Internet transmission.
Any opinions contained in this message are those of the author
and are not given or endorsed by the HSBC Group company or office
through which this message is sent unless otherwise clearly
indicated in this message and the authority of the author to so bind
the HSBC entity referred to is duly verified.
CC:[email protected]@
inetgw
Daniel Jack
81 Bleloch Avenue
Peekskill, NY 10566
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing to voice my opinion of the Microsoft antitrust
case.
I think the U.S. Department of Justice should accept the terms
of the settlement, which represents the best possible outcome.
Microsoft has agreed to several points, including the licensing
of Windows operating system products to the 20 largest computer
companies. For the sake of concluding this suit, Microsoft even
agreed to several terms that extend to products not at issue in the
lawsuit.
Furthermore, I am a proud shareholder (since 1995) and a user of
Microsoft products. I believe that I and many other customers
worldwide have benefited from Microsoft's products and pricing and
have never been harmed by any of their actions in the very
competitive global marketplace for information technology,
particularly PC software.
This is a respectable agreement. The economy and the American
consumer should benefit from the terms in this settlement. I hope
you will support it.
Sincerely,
Daniel Jack
MTC-00027829
From: Joanne Backs
To: Microsoft ATR
Date: 1/28/02 11:20am
Subject: Microsoft Settlement
My comment on the Microsoft Settlement is that it should be
accepted by all and the litigation ended!
Enough is enough.
P.S. I use Netscape Navigator on an Apple imac.
Joanne Backs
MTC-00027830
From: Aldo Mancini
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:18am
Subject: Microsoft Settlement
Dear Mr. Ashcroft,
I am attaching a letter to express my opinion regarding the
lawsuit against Microsoft. Please provide this correspondence your
necessary attention.
Sincerely,
Aldo Mancini
President & CEO
Mancini Enterprises, Inc.
1940-;1 North Commerce Parkway
Weston, FL 33326
Phone: (954)217-;9113 x101
Fax: (954) 217-;0113
e-mail: [email protected]
URL: www.mancinienterprises.com
Notice: The information contained in this communication is
intended solely for the use of the individual or entity to whom it
is addressed and for others authorized to receive it. It may contain
confidential or legally privileged information. If you are not the
intended recipient, you are hereby notified that any disclosure,
copying, distribution, or taking any action in reliance on these
contents is strictly prohibited and may be unlawful. If you received
this communication in error, please notify us immediately by
responding to this e-mail and then delete if from your system.
Mancini Enterprises, Inc. is neither liable for the proper and
complete transmission of the information contained in this
communication nor for any delay in its receipt.
<>
CC: ``fin(a)mobilizationoffice.com''
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
In the hopes to be heard, regarding the Microsoft lawsuit, I am
writing this letter to express my opinion.
As a small business owner, we always strive to provide our
customers the highest level of service and products they are
purchasing from us. In order to differentiate us from our
competitors, from time to time, we include free services and add-ons
to our products to build on our promise to the customer.
I have always disagreed with the lawsuit against Microsoft and I
believe that Microsoft is entitled to dictate the terms under which
[[Page 28139]]
it will sell its software, even to its OEM customers. The uniform
pricing mechanism will give the 20 OEMs all the benefits of a union
with none of the hassles vis-a-vis Microsoft. The very idea that a
few of Microsoft's most ardent competitors wanted government
sanction to pillage Microsoft's success is disturbing.
I am somewhat pleased that this settlement has been accepted. It
has the advantage of ending this sad chapter in our histor3,.
However, the terms of the settlement seem to give the government one
last poke at Microsoft by requiring it to release some of its
venerated source code to its competitors. As a Microsoft partner,
Microsoft has always provided to us an insight to its source code to
allow us to build better software products without releasing its
right to the ownership of such code. It should be to the discretion
of Microsoft to determine which companies, if any, need to be
provided access to this valuable asset. This, however, is a topic
for a future letter.
For now, let's just leave the settlement stand as is and move
on.
Sincerely,
Aldo Mancini
CEO
Mancini Enterprises, Inc.
MTC-00027831
From: T. Gray Curtis
To: Microsoft ATR
Date: 1/28/02 11:23am
Subject: Comments on Microsoft settlement
To: Department of Justice
From: Thomas Gray Curtis, Jr.
1443 Beacon Street, Apt 617
Brookline, MA
Subj: Comments re Microsoft Settlement
Date: January 28, 2002
Bill Gates wants to insure innovation by Microsoft. To further
this objective, Microsoft has impaired the ability of others to
innovate. A marketing genius, Gates wants to convince everyone that
empowering innovation by Microsoft is in everyone's interest.
Microsoft has damaged the software industry by restraining trade as
means of maintaining competitive advantage. I cannot quote you
specific dollar values of the impact of this restraint, but I will
relate to you one anecdotal instance which may be an illustration.
During the late 1980's and early 1990's two colleagues and I
were developing software for IBM and subsequent electrical utility
companies. The software implemented on a PC the functionality of Geo
Facilities Information System (GFIS) software, which required a more
expensive mainframe computer. GFIS was used by electrical utilities
to help them manage their electrical grids. The new software ran on
IBMs OS2 operating system. Over the course of several years IBM,
Florida Power and Light and Duke Power probably invested on the
order of one million dollars in the development.
As a result of the competition between IBM and Microsoft
(Windows v OS2), what I refer to as the Microsoft Wars, viability of
OS2 as a ubiquitous operating system was destroyed. The consequence
of this was that the cadre of developers creating applications
software was reduced. For a while in the early 1990s I developed
software for the AIX unix operating system. The size of that market
and the cost of unix development drove me out of software
development by 1995. I have finally, starting in 2002, reentered the
software development arena. I am reluctantly developing software for
use under Windows 2000. Primarily because that is the largest
market.
I am not privy to the facts with regard to the abrogation of the
contract between IBM and Microsoft for the development of the
graphical user interface for OS2. I have seen only from afar, via
the news media, the machinations of Microsoft in dealings with
companies such as Sun MicroSystems over JAVA and Netscape and AOL
over browsers. Microsoft business practices sicken me and damage the
ability of the software industry to innovate. I had hoped that the
federal government would seek a remedy which would restore some
balance to the industry by separating the operating system unit from
the application development unit. Microsoft is like a black hole in
our solar system. It suppresses competition to such an extent that
the light of some new products will never be seen.
Microsoft's practices will continue unless steps are taken to
protect the small cap companies which would try to innovate. A case
in point is the small Rachis Corporation of Marlboro, MA. This
startup company develops software for the emerging interactive TV
market. They provide system integration test and evaluation and
software for hardware manufacturers, application vendors,
middleware, and network operators. Scientific Atlantic, a set-top
box manufacturer, partners with RACHIS despite efforts by Microsoft
to provide software to Scientific Atlantic. Microsoft appears to be
eyeing the media industry as an arena in which to throw it's weight
around. Microsoft has created Microsoft TV and with it's holding in
ComCast has some influence over the deployment of the cable network
acquired by ComCast from AT&T.
Please keep an eye open for the Microsoft guerrilla vis a vis
Rachis.
Respectfully submitted.
Gray Curtis
MTC-00027832
From: Ellen Ryan (MSLI)
To: Microsoft ATR
Date: 1/28/02 11:24am
Subject: Microsoft Settlement
I came to the U.S.A 4 years ago from the United Kingdom to work
temporarily while my husband attends university out here. Before I
came here I believed that America had a fair & competitive
economic system that rewarded innovation and hard work. I have been
sorely disappointed. Leave companies free to innovate. Stop using
tax dollars to defend cases that only satisfy the political agenda
rather than protect citizens.
Ellen.
MTC-00027833
From: Mary Rocco
To: Microsoft ATR
Date: 1/28/02 11:25am
Subject: Microsoft Settlement--;NO!
BlankRenata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse:
I've been requested by Microsoft to send you a letter in support
of their settlement, but I will not do that because I OPPOSE THE
SETTLEMENT. Microsoft continues its predatory and unethical business
practices unabated and obviously the Department of Justice has not
gotten its message through to Mr. Gates yet. I think you should
continue to take steps to curb Microsoft's rapacious and insidious
monopolistic practices which are not only unfair restraint of trade
but also extremely detrimental to the end consumer. Microsoft's
programs act more like viruses than computer applications. Please
continue attempting to put a stop to this monopoly.
Sincerely,
Mary A. Rocco
3217 Cheviot Vista Place, #108
Los Angeles, CA 90034-;3546
MTC-00027834
From: Tennison, James
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:24am
Subject: Microsoft Settlement
To whom it may concern,
I would like to comment on the proposed settlement in the
Microsoft Antitrust Case.
The first thing I would like to say is that from day one I have
been appalled that such a thing as the Microsoft Anti-trust Case
even exists. It is immoral.
My family and various relatives have been using Microsoft
products including MS-DOS, Windows 95, 98, NT, 2000 and Internet
Explorer for years. Had I been unhappy with Microsoft products I
could have purchased other brands such as Apple with their Apple OS,
Sun with their Solaris or Red hat with Linux to name a few. I have
never been under the ignorant opinion that there are no other
choices for my computing needs. Microsoft products have worked well
enough and I've been quite happy with all I could do with them.
Microsoft is extremely successful for good reason. Microsoft
products provide a full range of capabilities, have great prices and
wonderful availability. It is my reasoned opinion that Microsoft
products have been a boon to the citizens of the United States and
the world. Microsoft's products have only offered positives to the
lives of countless people.
Before you think that I am a total Microsoft zealot I will
inform you that I have also happily owned and used Sun products (Sun
Solaris workstations), Silicon Graphics and Apple products
(Macintosh I, II, Quadra 410). I also happily employ the Netscape
browser on all three of my PC's.
I strongly hold that Microsoft has the absolute right to freely
pursue it's interests in the capitalist market of the United States.
This includes their right to bundle their various products any way
they see fit. No one, and certainly not our government, has the
right to dictate what products Microsoft can produce and must not
initiate force against this outstanding company. Microsoft
[[Page 28140]]
has always providing products and services in the absence of any
compulsion. Moreover, Microsoft, unlike the US Government, cannot
use force to make people buy it's products. And, since the only
legitimate purpose of government is to deter and punish those who
use force, the attack on Microsoft because it is successful
completely inverts the role of government. The Microsoft Anti-trust
case has once again made our government, justly a protector of
rights, instead a powerful violator of rights. It is extremely
disheartening to see such rampant totalitarianism! In addition, the
antitrust laws being used in an attempt to lynch Microsoft have been
called into effect not by citizen's complaints against Microsoft's
products, but by Microsoft's unsuccessful competitors. These
companies seek to ``win'' in the marketplace by resulting
to force and not by offering superior products with superior
marketing. Moreover, instead of using guns themselves to force
consumers to buy their products, these companies seek to use force
by proxy, with the US Government acting as their agent. This is
truly a despicable attempt to influence the market through the pure
use of force. They are employing the very corrupt anti-trust laws,
applied by a government on a mistaken crusade to eliminate the
infidel (a hugely successful Microsoft), to ``win'' in the
marketplace. This is an unconscionable injustice! This should be the
illegal activity which is attacked by a just government. Shame! The
Anti-trust laws used by their willing governmental accomplices were
unjust at their inception and remain so today. They represent non-
objective law. Laws that should not and must not exits.
Individual rights, which also apply to the American businessmen
of Microsoft, are not granted by our government. Just government
serves only to protect the rights of it's citizens. Microsoft has an
inalienable right to it's products (bundled as they desire) and
profits.
Many smart people in the United States Justice Department have
created a case against Microsoft based on the subjective egalitarian
premise that big is bad. They punish success for being success. They
have erred in that they never sought to fully understand the legal
premises they employ. To find out whether they are just. They relied
instead on a history of precedence generated by a wholly mistaken
initial premise. That premise is that force can and should be used
to do good. That force should be used to elicit an egalitarian
ideal. As if the alleged good of society trumps the rights of
innocent individuals. Actually, our government is employing a
Marxist socialist concept. The group has rights superior to those of
the individual.
Let us place reason firmly in it's seat. Leave Microsoft alone
to create even better and more successful products for the free
American capitalist consumer. Drop this unjust case immediately! No
punishment is due Microsoft. With a great flourish of marketing
skill, Microsoft has brought the computer to the world and changed
history. All of you persecutors should feel the guilt of your
brutish and totally unjust quest to destroy the good because it is
good.
Thank you for letting me defend the rights of American
businessmen.
James G. Tennison Jr.
MTC-00027835
From: Eric Thompson
To: Microsoft ATR
Date: 1/28/02 11:24am
Subject: Microsoft Settlement
Dear Honorable Justices,
Microsoft has twice been found guilty of serious violations of
the Sherman Antitrust Act, by a federal District Court and by the
United States Court of Appeals. While the Court of Appeals reversed
the breakup order issued by the District Court, it upheld the trial
court's Findings of Fact and affirmed that Microsoft is guilty of
unlawfully maintaining its monopoly. As I understand it, the court
must hold public proceedings under the Tunney Act, and these
proceedings must give citizens and consumer groups an equal
opportunity to participate, along with Microsoft's competitors and
customers.
Please allow consumers participation.
Regards,
Eric
Eric Thompson
Strategic Renewables Group
4834 Hart Drive
San Diego, CA 92116
619-;521-;0444 office/mobile
619-;521-;0515 fax
[email protected]
www.StrategicRenewables.com
MTC-00027836
From: Larry Mull
To: Microsoft ATR
Date: 1/28/02 11:27am
Subject: Microsoft Settlement
DEADLINE:In times of a struggling economy, I find it confusing
that we're still arguing against Microsoft. It's time for this
settlement to be accepted and let's move on. Or maybe it's about
states trying to increase their revenues and attorneys building a
retirement. Sheez. At one time no on thought the Japanese could
compete in the domestic automobile market. Who's going to be the
Japanese when it comes to software in 10 to 20 years?
If we continue, we will prove where businesses should not be in
the future.
MTC-00027837
From: Carey Gifford
To: Microsoft ATR
Date: 1/28/02 11:27am
Subject: Microsoft Settlement
I oppose the proposed Microsoft Settlement for the reason that
it is not in the best interest of the public at large, nor in the
interest of the future evolution of electronic technology.
Carey J. Gifford
[email protected]
Alpharetta, Georgia
MTC-00027838
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:27am
Subject: Settlement
To Whom it May Concern:
I support Microsoft's point of view. Please register me as a
supporter of microsoft.
Joan Peven Smith
Miami, FL
MTC-00027839
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:27am
Subject: (no subject)
January 28, 2002
Attorney General John Ashcroft
US Dept of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing to give my support to the agreement reached between
Microsoft and the Dept of Justice. I did not support the original
lawsuit against Microsoft.
I do not think the case was warranted. The lawsuit was more
political than any outrage over unethical business dealings. Bill
Gates has carried the technological revolution on his shoulders. He
has enabled the average person to become part of the technological
ago. Does anyone remember what it was like before Microsoft? Bill
Gates standardized computer software to enable its compatibility
with other software. And people bought the product, because it was
the best and it still is.
Bill Gates has agreed to any number of terms demanded from the
Dept of Justice. Microsoft has agreed to share its source codes and
books pertaining to Windows, that Windows use to communicate with
other programs; Microsoft has agreed to a three person technical
committee to monitor future compliance; Microsoft has agreed to
contractual restrictions and intellectual property right.
This is more than fair.
Give your approval to this agreement. Allow us to get back to
work. Honestly, I do not agree government intervention on technology
and its innovation. it only serves as a hindrance. Microsoft's
dominance on computer and technology is due to superiority of its
products and its marketing skills.
Sincerely,
Marc Hui
MTC-00027840
From: Your Name
To: Microsoft ATR
Date: 1/28/02 11:28am
Subject: Microsoft Settlement
Dear Ms. Hesse,
I am writing in regard to the proposed settlement in the
Microsoft Antitrust case. I feel that there are tremendous problems
with the proposal and support the open letter written by Dan Kegel.
There you will find my signature along with many many other people
who are also concerned by this proposal.
I also support Dan Kegel's essay regarding the problems and
difficulties that the proposed settlement will create. I hope that
the Department of Justice will seriously reconsider the problems
with the plan and work to revise it so that it will be of benefit to
computer users.
If Microsoft is not reined in and given more stringent
guidelines to follow, they will continue to create products which
don't work and there won't be any alternatives available. I am glad
that there are alternative operating systems available currently,
but they deserve
[[Page 28141]]
just as much access to the market as Microsoft has.
Thank you for your time and consideration of this matter.
Sincerely,
John D. Brosan
MTC-00027841
From: James R. McCartney
To: Microsoft ATR
Date: 1/28/02 11:27am
Subject: MS v DOJ
I am against the proposed settlement with Microsoft. It does not
do enough to punish the software company or ensure changes in
behavior in the future. Netscape was replaced as the dominant web
browser by Internet Explorer(IE) because IE was free. Microsoft has
already been found liable for misusing it's operating system
monopoly to make this happen. IE is now used by most Internet users
because it is free and supplied with Windows and Macintosh by
default. No other browser has a chance to gain market share because
of this.
Now that IE has become the leader, it has stopped using
Netscape's ``plug-in'' technology for enabling helper
applications to open alternate Internet content. Active X is the new
proprietary solution and give Microsoft an advantage in writing
helper applications for IE. Even if they are required to release the
API(Application Programmer's Interface) for Active X, it still gives
them the advantage. They have the code first and they have the
``real code.'' I would not be surprised, nor should
anyone, if they release to other vendors an inferior subset of the
API. This will give Windows Media Player, Word, Outlook, and
Messenger a lead on other current market leaders like Real Player,
Adobe Acrobat, Eudora, and AOL Instant Messenger.
Microsoft has also dropped support for Java in it's latest
operating system, XP. This is hardly in the consumers best interest,
as a large quantity of useful programs are written in this platform
independent language. This can only be Microsoft's attempt at
punishing Sun Microsystems and no one can stop them from doing this.
They should work with Sun to make a good version of Java for
Windows. The solution proposed by the Justice Department seems like
a giveaway. It is notable that it comes right after the executive
branch has become Republican. I would like to see a more objective
resolution to the illegal behavior by Microsoft. Thank you...
James McCartney
2668 East Hardy Lane
Fayetteville AR 72703
MTC-00027842
From: Jef Pearlman
To: Microsoft ATR
Date: 1/28/02 11:28am
Subject: Microsoft Settlement (Against)
I'm just emailing to add my vote to those against the current
proposed settlement. Hopefully I have reached you in time. Plenty of
others have emailed their reasons, so I won't spend any time
rehashing the arguments here, except to say that I believe that the
current settlement in no way punishes Microsoft, and in some ways
helps them further their use of their monopoly to spread their
influence in various industries. Thanks.
Jef
MTC-00027843
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:29am
Subject: Microsoft Settlement.
In this litigation and all such endeavors the United States
Government has become the ENEMY of the Business Community. If they
were concerned about the Economy AND the health of the business
community in the United States they would act like foreign
governments and support and in some cases provide financial support
as well instead of hampering and stifling business and research and
development. Please allow Microsoft and all other businesses compete
without government interference and do not allow yourselves to be
manipulated by competitors constantly complaining, they are only
looking for a government sponsored ``Leg-Up''
Jerry Purcell
106 Cedar Drive
New Britain, PA 18901-;5229
215-;230-;1911
CC:[email protected]@
inetgw
MTC-00027844
From: Nathan Stratton Treadway
To: Microsoft ATR
Date: 1/28/02 11:29am
Subject: Microsoft Settlement
January 27, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NE
Suite 1200
Washington, DC 20530-;0001
I think the current proposed settlement with Micrsoft is a bad
idea and should be abandonded.
It has many faults, but to pick one: my business is dependent on
using Samba to allow our Unix machines to inter-operate with our
Windows machines on our network. The proposed settlement does
nothing to protect the rights of non-commercial projects like Samba,
and the millions of users of such projects, against Microsoft's
actions.
Thank you.
Nathan Stratton Treadway
Ray Ontko & Co.
822 E Main St.
Richmond, IN 47374
MTC-00027845
From: Bob Petolillo
To: Microsoft ATR
Date: 1/28/02 11:35am
Subject: Microsoft Settlement
It's time for the government to back off of private lawsuits
against businesses and to stop legislating private commerce as much
as it is.
The role of government should be to provide NECCESSARY
regulation of private commerce.
We have gone WAY BEYOND that role in trying to legislate
equality and/or fairness into private industry.
The government bureaucracy is in no way qualified to judge the
effects of legislation on the citizens and their economy and has
already caused a great deal of damage to the private sector with its
extensive meddling.
Lawsuits and legislation targetted against legitimate
enterprises like tobacco companies (as disgusting as cigarettes
are), gun manufacturers, Microsoft, and many others are not the role
of our government.
Continued abuse of legislative and executive power is only going
to continue to erode the faith of the citizens in our government and
cause more divisiveness and discontent that is already out there.
Un-neccessary governmental interference and gross fiscal
irresponsibility have damaged this country greatly. In the latter
half of the twentieth century our culture has gone a long ways
toward becoming a ``third-world'' country due, in large
part, to out-of-control actions by our legislature and the
government bureaucracy. We have a long way to go still, but I
shudder to think about the future my children may have to deal with.
Please re-think your position on the role of government and let's
get back to the basics of running the government, not running the
people and industry in it.
Sincerely;
Bob Petolillo
CC:[email protected]@
inetgw
MTC-00027846
From: Sheldon Robinson
To: Microsoft ATR
Date: 1/28/02 11:22am
Subject: Microsoft Settlement
I don't feel particularly verbose today, but I've written and
read much on the reasons Microsoft must be broken into a minimum of
two companies.
Microsoft owns the OS which is fine. Microsoft also makes
applications for their OS which is not fine. Why? Microsoft does not
fairly publish the specification of the interface to their OS. When
Microsoft builds an application and another company builds a
competing application, Microsoft is guaranteed to build the better
application because they have intimate knowledge of the OS.
Microsoft knows how the optimize their applications in ways their
competitor cannot know.
Any settlement which stops short of breaking Microsoft into an
OS company and an applications company is in my view and the view of
many others a lost settlement.
Sheldon
MTC-00027847
From: Davis, Mark
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:31am
Subject: Microsoft Settlement
Dear Officials of the Department of Justice,
As a private citizen and long time user of products produced by
both Microsoft and its competitors, I support the proposed
settlement that has been worked out by the DOJ and Microsoft. I feel
that additional punitive measures would be unfair to both Microsoft
and, more importantly, to consumers using Microsoft products, and so
I urge adoption of the settlement as it exists. Thank you.
[[Page 28142]]
Mark F. Davis
1110 Manzanita Dr.
Pacifica, CA 94044
(650) 355-;8064
MTC-00027848
From: Harold kline
To: Microsoft ATR
Date: 1/28/02 11:32am
Subject: Microsoft Settlement
Dear Sirs and Madams:
It is time to put to rest the Microsoft Case. This ill-advised
litigation was likely the cause of the present recession our country
is enduring, and its continuation is only going to prolong the
economic troubles.
While the Tunney Act fails to satisfy Microsoft's most vocal
critics--; the competitors and their greedy lawyers--;it
provides a fair solution to the alleged monopolistic practices of
Microsoft, and it benefits the country as a whole to get this behind
us and move on. Dragging on this battle will only pad the pockets of
the lawyers, and a few special interest parties.
Many consumers, including myself, do not agree that Microsoft
did anything wrong. Without the Windows technology and the
innovations that that company continues to develop, the personal
computer industry wouldn't be half as strong as it is today. Any
continuation of the litigation against Microsoft only smears the
entire industry and keeps the economy from recovering.
Please bring this farce to an end.
Harold Kline
Kansas City, MO
MTC-00027849
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:32am
Subject: Microsoft Settlement
Dear Attorney General Renata Hesse:
The provisions of the Microsoft agreement are tough, but I
believe the terms-which have met or gone beyond the findings of the
Court of Appeals ruling-are reasonable and fair to all parties
involved. This settlement represents the best opportunity for a
great company like Microsoft (whom has changed the lives of millions
of people for the better) and the industry to move forward.
Microsoft has helped so many people work and live more efficiently
and effectively. It is time to move forward and approve this
settlement which is in the best interest of the people of this
country.
Thank you.
Jennifer M. Freeman
833 Trailing Ridge Road
Franklin Lakes, NJ 07417
201-;891-;6040
MTC-00027850
From: Don Briggs
To: Microsoft ATR
Date: 1/28/02 11:32am
Subject: Microsoft Settlement
Dear US DOJ,
One outcome of the Microsoft settlement should be that, when
submitting information electronically to government agencies, one
should never be required to submit documents in Microsoft
proprietary formats. Government agencies should never require text
documents in Microsoft Word format, for instance. To do so
reinforces Microsoft's monopoly position.
Regards,
Don Briggs
1530 Lockhart Gulch Road
Scotts Valley, CA 95066
MTC-00027851
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:34am
Subject: Microsoft Settlement
Dear Sir or Madame,
I am a consultant working in the Intelligent Transportation
Systems area of Transportation Planning. As such, I frequently make
recommendations to clients of all types, public and private, about
software acquisition and use.
This experience has given me a great deal of exposure to
software vendors (particularly Microsoft) and to the various methods
they employ in marketing their products and competing with other
producers. I also have a background in economics (B.A. University of
Minnesota) and am a certified planner (AICP).
My concerns stem from the continuing trend of Microsoft's
alterations to licensing policies and the fact that often times no
additional value is offered to the consumer, even though a greater
revenue stream is generated for Microsoft. This, coupled with a
practice of intentionally making newer versions of products
incompatible with previous versions, causes a situation of
``forced'' upgrades for consumers. This is particularly
troubling for small public entities, such as para-transit providers,
whose mission is to provide mobility to handicapped persons, often
on very limited budgets.
This is relevant to the settlement at hand for two reasons:
(1) The Settlement does not address the separation of
applications from operating systems in any meaningful way. Thus
Microsoft is able to build in version incompatibilities and tie them
to the operating system itself. In the transportation community, we
have a joke: ``If Microsoft made cars, every time you changed
your tires you'd have to build all new roads.'' Although
exaggerated, this illustrates the point of a monopolist manipulating
product to ``force'' secondary purchases.
(2) The Settlement does not address past harm. Under the current
proposal, a three-person oversight team would be established to
assure that Microsoft does not further abuse monopolist power.
Although debate can be had on whether this mechanism would even be
effective in that role, my concern is more that there is no
provision for punative action against Microsoft or compensation to
those harmed by the abuse. An analogy would be a person convicted of
bank robbery and simply assigning them a parole officer to assure
that they didn't rob the same bank again.
For these reasons, I belive that the proposed Settlement is not
in the best interests of the public and should not be agreed to.
Thank you for your consideration in this matter,
Mark R. Gallagher, AICP
999 Grand Ave. #4
St. Paul, Mn 55105
MTC-00027852
From: Tim Egbert
To: Microsoft ATR
Date: 1/28/02 11:23am
Subject: Microsoft Settlement
Attention: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
January 28, 2002
Sirs and Madams:
I oppose the Proposed Final Judgment (PFJ) in United States vs.
Microsoft because it (1) does not adequately address the issues
raised in Judge Jackson's findings of fact and conclusions of law,
(2) will not remedy the past illegal monopolistic behavior of
Microsoft, (3) will not prevent Microsoft from committing future
monopolistic abuses, (4) will ratify many of Microsoft's practices
that have been adjudicated as unlawful, and (5) will allow Microsoft
to continue such practices under the cloak of final judgment.
Microsoft has been adjudicated to be a monopoly and to have
acted illegally in many particulars, which rulings have been upheld
on appeal. It has become evident that to this day, Microsoft does
not believe it has done anything wrong and is using all means at its
disposal to avoid any real consequences for its illegal actions. The
Justice Department and the Court have a duty to promote a remedy
that is effective and consistent with previous findings in this
case.
I believe that Microsoft has shown that it will not negotiate in
good faith to promote an effective and just settlement of this case.
It therefore behooves the Justice department and the Federal Court
not to insist on a negotiated settlement, to fashion a truly
effective remedy, and to seek to impose such a remedy on Microsoft
within the proper powers of the judicial system. There is no good
reason to continue to negotiate with this intransigent and
adjudicated wrongdoer.
Rather than restate all the well reasoned arguments against the
PFJ, I have added my name to the ``open letter'' submitted
this day by Dan Kegel as set forth on his web site at: http://
www.kegel.com/remedy/remedy2.html.
Yours truly,
Timothy P. Egbert, J.D., Ph.D.
4388 Inverary Dr.
Salt Lake City, UT 84124
801-;274-;0476
CC:Tim Egbert,Attorney General
MTC-00027853
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:35am
Subject: Microsoft Settlement
2056 E Golf Avenue
Tempe, AZ 85282
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
[[Page 28143]]
Dear Mr. Ashcroft:
The last three years of litigation against Microsoft has been
unjustified. The original intent of the lawsuit was to protect
consumer by breaking up a monopoly and stop infringement on consumer
rights. Microsoft has consistently delivered high quality goods at
normal prices, which goes against standards definition of a monopoly
and has never infringed on my rights.
In fact I think their innovation has standardized the technology
industry making it easier for users around the world to operate.
That is why I disagree with some of the terms of the settlement
because they give Microsoft's interfaces and protocols away. This is
a violation of Microsoft's intellectual property rights.
I request that your office finalize the settlement as soon as
possible and ignore the nine states that are holding this thing up.
They are obviously not concerned with the public's bets interests.
Thank you.
Sincerely,
Joel O'Connell
cc: Representative Jeff Flake
MTC-00027854
From: Michael Martin
To: Microsoft Settlement
Date: 1/28/02 11:29am
Subject: Microsoft Settlement
Michael Martin
6712 Riviera Drive
North Richland Hills, TX 76180-;8120
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Michael R. Martin
MTC-00027856
From: Barling, Roy
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:30am
Subject: Microsoft Settlement
Dear Sirs/Madams,
I'm writing to express my opposition to the settlement being
proposed between some of the States and MicroSoft.
Microsoft has been convicted, and that conviction upheld on
appeal, of violating several parts of the Sherman Anti-trust Act.
The settlement in its current form does nothing to repair the damage
that has already been done to the software industry. It also does
nothing to prevent them from continuing to abuse their monopoly
position. Furthermore it does nothing to place monetary damages on
their past abuses, nor does it establish any framework to punish the
abuses that they will most assuredly commit in the future. There is
no reason that Microsoft should be allowed to keep all of their ill
gotten gains or continue to abuse their monopoly with anti-
competitive practices. Please consider some of the many suggestions
already sent in by industry luminaries that would restore
competition and innovation to the software industry. Thank you.
Roy Barling, MCSE
MTC-00027857
From: Tony DeCicco
To: Microsoft ATR
Date: 1/28/02 11:37am
Subject: microsoft settlement
Anthony DeCicco CPA / ABV
7710 Cumberland Road
Largo, FL 33777
January 25, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
It is high time for this antitrust suit between Microsoft and
the Department of Justice to come to an end.
For three years now, people in both the IT industry and many
average people who depend on Microsoft products, have waited for
this case to be settled.
Unfortunately seeing this case put to rest could mean a severe
change in the way Microsoft does business.
Opening up its code to the competition and allowing computer
manufacturers broader freedoms in how they configure Windows will
mean a serious loss of control over its product for Microsoft, and
they will have to carefully rethink their business strategy.
But they obviously feel capable of doing so if they have agreed
to the settlement, so I can see no reason not to move forward on
this issue. Let's put an end to this case at the federal level and
move on once and for all.
Sincerely,
Anthony De Cicco CPA / ABV
MTC-00027858
From: Ronald R. Cooke
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:39am
Subject: Tunney Act Comments: Microsoft Settlement
Unfortunatley, the e-mail I sent last week lost the footnotes.
This attachment should include them.
Ron Cooke
January 24, 2002
Ms. Renata Hesse
Trial Attorney
Suite 1200
Antitrust Division
Department of Justice
601 D. Street, NW
Washington, DC 20530.
Reference: Tunney Act comments in United States of America v.
Microsoft Corporation, Civil Action No. 98-;1232 (CKK) and
State of New York v. Microsoft Corporation, Civil Action No. 98-1233
(CKK).
[email protected]
With copies to: Interested Parties
From: Ronald R. Cooke
Cultural Economist and Industry Analyst
The Settlement Proposed By The Justice Department Overlooks
Reality
Consumers within the Information Systems industry have expressed
their skepticism about the settlement proposed by the Justice
Department. In a poll of readers, for example, ZDNet asked:
``Did Microsoft get off easy in the DOJ settlement?''
Seventy four percent of the respondents said ``Yes''. To
quote columnist David Coursey, ``Nobody is precisely sure what
it means, but the total effect seems little more than a hand slap
.... Prohibitions that exist in one section seem to be rendered
meaningless by another'']
Consumer and industry respondents to the Tunney review process
will probably contend that the proposed remedy does not effectively
end the anticompetitive practices, will not materially deprive the
wrongdoer of the fruits of the wrongdoing, and will do virtually
nothing to ensure that the illegality does not recur. The terms of
the settlement are much too vague to be of much use. They can be
manipulated and rendered ineffective through the legal process. The
enforcement mechanism is inadequate. And finally, there is no clear
cut way to prohibit monopolistic behavior.
There is a more fundamental issue, however, that has not been
adequately addressed by the process of law. It can be expressed as a
simple question: How much unconstrained power do we want one single
company to have? As the Enron debacle has demonstrated, this is not
an idle question. Unrestrained corporate behavior can severely
damage consumer rights. Microsoft has demonstrated that it can
dominate the thinking of the PC Culture that it so zealously
nourishes. It has an overwhelming influence over the press--;and
therefore--;the opinions of an uncritical public. Within the
information systems industry, Microsoft is acknowledged to have
indisputable economic, political and cultural power. Comments by
members of congress suggest this company also has a growing
influence over the legislative process.
Given its announced strategic plans, it should be obvious this
company wants more. Much more. Microsoft wants to wield the same
kind of influence over the entertainment and communication
industries that it does over the computer industry. It currently has
aggressive initiatives to dominate the services and content of the
Internet and is pressing forward with plans that will Quotation
from: ``MS settlement
[[Page 28144]]
reads like a fairy tale''. David Coursey, ZDNet, November 5,
2001.
effectively manage the access, distribution and use of networked
consumer entertainment. Mobile and location technologies will be
used to penetrate additional consumer services..Net will drive the
consumer to Microsoft approved content and services. If these
initiatives are successful, this single company will be in a
position to dictate how we create, store, edit, access, distribute
and use all kinds of electronic information. Worldwide. Across three
industries.
The reality of this situation raises a number of questions.
Given its growing political and economic power, why do we believe
that Microsoft will feel compelled to abide by the proposed
settlement terms? Will they modify Microsoft's business strategy?
Product plan? Will they prevent Microsoft from using integration,
bundling and tying as weapons to lock out competitors in three
industries?
Will the proposed behavior monitoring process guarantee the
delivery of reliable products? Improve consumer security? Prevent
the abuse of corporate power? Ensure open markets? Encourage
competitive innovation?
It would appear that the answer to all of these questions is a
resounding ``NO''. If that is true, then how can any
reasonable person claim that the proposed settlement serves the
public interest?
Who Is The Consumer?
Consumers have the right to expect that our federal institutions
will deliver a settlement that has an immediate, substantial and
permanent impact on the restoration of competition within the
information systems industry.
But, who is the consumer?
Media and political personalities frequently project the image
that all ``consumers'' are deficient, clueless and
vulnerable. It is an image favored by self proclaimed consumer
protection groups. Consumers are easily victimized and thus
considered in need of protection. Hence in the Microsoft anti-trust
case, both the Justice Department and the presiding Judge were
concerned that the ``consumer'' had been victimized by
excessive software prices and a lack of choice. This somewhat ill-
defined person had been forced to purchase Microsoft software
through a captive retail channel and may have been overcharged.
In reality, this image of the ``consumer'' is
misleading. If we want to reach a settlement that protects both
personal and institutional rights, we must first agree on a
definition for the word ``consumer'' that incorporates all
classes of buyers. For the purposes of this settlement agreement,
therefore, we must consider two broad classifications of the concept
``consumer''. There are personal consumers and there are
Enterprise consumers.
Personal consumers engage in personal consumption. This happens
when people make purchases for themselves, their families, their
friends or anyone (or thing) else that commands their interest. They
use their own money. Typical purchases include food, clothing,
housing, vehicles and so on. Personal consumption accounts for
roughly two thirds of America's GDP. Enterprise consumers spend
money that belongs to the Enterprise. They buy products, property or
services for their employer or their business. Broadly defined,
Enterprise consumers include any entity defined by the standard
industrial classification codes: i.e. insurers, manufacturers,
retailers, hospitals, educational institutions, government agencies,
personal service businesses and so on. Enterprise consumption
accounts for approximately one third of America's GDP. Both segments
of America's consumer population must be protected from Microsoft's
assertive marketing power. We must not leave either group of
technology buyers in the position that they will be forced to chose
key products and services from one vendor, good or not, on terms and
prices they can not evade.
One of the more glaring problems with the proposed Microsoft
settlement is that while Federal and State authorities have properly
reacted to personal consumer complaints, they have failed to deal in
a meaningful way with the problems of the Enterprise consumer.
Industry wide issues include:
Enterprise networks have become incredibly expensive and
difficult to maintain.
Existing PC operating systems are hard to manage and very costly
to own.
Internet and Intranet security problems have become so bad that
they threaten electronic commerce and the viability of Enterprise
operations.
There are multiple industry reports that address these issues in
great detail. It is worthy to note that excessive information system
costs have been calculated in the $ billions per year and that
industry publications continue to report on the related management
and operating problems. It is also clear that these impediments will
continue to plague the Enterprise consumer because there is no
effective competition for the architectural concepts promoted by the
dominant vendor.
In this legal action however, Microsoft's alleged disregard of
consumer needs was never pursued. There appear to be several
reasons: some political, some practical, and some due to the
inherent obsolescence of the Sherman Antitrust Law. But the issues
remain:
If PC operating system development has been paralyzed by the
domination of a single vendor, has the consumer been harmed? And if
the products are defective, what is the burden of liability?
If network systems design has been primarily driven by the
product plan and business model of a single vendor, has the consumer
been harmed? And if the underlying system design was dysfunctional,
what is the burden of liability?
If a vendor, in order to deflect competition, announces products
that do not exist, or products that never make it to market, has the
consumer been harmed? And if the consumer was mislead, at what point
does this constitute consumer fraud? What is the associated
liability?2
If consumer security and safety have been jeopardized by
deficient systems architecture and defective products, what is the
vendor's liability?3
The complaints against Microsoft are far more numerous than
those covered by this narrowly defined legal action. If the court
wishes to impose a meaningful settlement on Microsoft, it will have
to consider both the concerns of this specific case and the
underlying intent of the Sherman Act. There is case law and there is
the reality of dealing with an overwhelming marketing machine that
is essentially able to set its own agenda.
This reality puts the court in a quandary. If the court is to be
forthright in its desire to protect the consumer, it must provide
substantial relief for both personal and Enterprise consumption. It
will have to deal with both the specific and the ambiguous. It must
certainly expand the interpretation of the Sherman Act. And finally,
the court will have to make its findings with the knowledge that
this settlement will have a bearing on future actions against AOL/
Time Warner.
2 The announcement of non-existent products was an issue in the
Justice Department's case against IBM. It puzzles me why Justice
chose not to pursue this issue in its development of a case against
Microsoft.
3 The National Academy of Sciences has recommended the creation
of laws that would establish vendor liability for security breaches
that are the result of vulnerable software products.
Microsoft The Company
Microsoft's corporate culture is driven by the mantra of revenue
growth, institutional power and market control. Software is
developed to gain market share or to demolish competition. Software
defects and chronic insecurity have been institutionalized as
components of the product plan. Microsoft does not have to be driven
by consumer wants and needs. Microsoft is free to be driven by
whatever strategy protects its revenues and extends its power into
additional markets. Microsoft has been able to adopt competitive
software concepts within its Windows architecture, thereby rendering
the competitive software irrelevant. Examples include the
incorporation of the Internet Explorer browser into the Windows user
interface in order to destroy Netscape's Navigator and the inclusion
of ``Java like'' features in the company's .Net strategy,
a ploy that will eventually render Java redundant within the Windows
environment.
When faced with standards based competition, Microsoft has
frequently been accused of using an ``embrace, extend,
extinguish'' strategy to render the standard useless.
Microsoft's version may even flaunt the concept of ``open
standard'' by restricting Windows clients from working with any
platform other than a Windows server.
Microsoft has convinced a wide range of technologists,
journalists, legislators and consumers that it has the exclusive
wisdom to provide software innovation.
This--;of course--;is absolute nonsense. Microsoft is
not the only company that understands the fundamentals of software
technology. Were it not for the company's monopoly control over the
market, consumers would be able to purchase a far superior PC
operating system. Other vendors have developed, and are marketing,
embedded operating systems with better
[[Page 28145]]
technology and excellent reliability. Enterprise users have embraced
a variety of alternative server operating systems because they have
superior reliability and a lower cost of ownership. There are
certainly alternative ways to build consumer friendly Internet, e-
mail, word processing, spreadsheet, graphics and data base
applications. And there are many companies that develop software for
the cell phone, PDA, set top box, in-home server and game markets.
Unfortunately, few alternatives can effectively compete against
Microsoft's marketing power. This company continues to use
integration as a predatory weapon. Competing products, services and
content will be hobbled--;and thus less desirable.
Management has a vision. Microsoft plans to dominate the
computer game, cell phone and PDA/HPC (Personal Digital Assistant/
Handheld PC) markets, will force its way into the cable business and
fully intends to be a leading provider of Internet services. These
are key revenue growth strategies. The company's XP operating system
is important because it drives Microsoft's largest revenue stream
and the future of the company's .Net strategy. The Stinger cell
phone and Pocket PC HPC OS launches open up new recurring mobile
network revenue opportunities. The XBox game platform opens a
strategic path to the convergence of entertainment and computing in
the home. The company is actively tying its computer and
communication software product strategy to its Internet services and
content strategy. The Internet gives Microsoft a virtually unlimited
marketplace that can be molded to the company's operating
philosophy. Hailstorm and Passport fit perfectly into this scenario.
Network clients using Microsoft software will be tightly integrated
with Microsoft application and content servers.
This is, after all, what convergence is all about.
Unfortunately for the consumer, management's vision has a
potential downside. Microsoft will be able to demand access to all
of the software we use, modify it with or without our knowledge, and
make copies of our files. This company will be in a position to
monitor our use of the Internet, our political philosophy, our
purchase behavior, and our friendships.
Will Microsoft actually do this? Will a hacker be able to do the
same thing? Does the consumer really want to be this vulnerable?
We can understand that Microsoft's business model is driven by
the visceral desire to absolutely dominate all high volume software
applications. We can also understand that the company's prospects
for revenue and profit growth are interdependent with the
accumulation of power over the consumer's use of computing
technology within the computer, communication and entertainment
industries.
It is time, however, to ask one simple question: Does this
ubiquity serve the public interest? On the one hand we acknowledge
Microsoft's accomplishments, the intensity of its vigorous pursuit
of new markets and its right to function as an independent business.
But on the other hand, the court must fashion a remedy that
incorporates genuine protection for the consumer. The PC era was
lots of fun. The Internet era was a wild ride. But going forward,
Enterprise and personal consumers must have cost effective software
that is reliable, predictable, useful, secure, easy to manage and
open.
Will a court imposed settlement provide the key?
Alternative Remedies
Nine States'', along with the District of Columbia, have
presented an alternative proposal of remedy that would, if
implemented, partially correct these deficiencies. This proposal has
credibility because it directly addresses the findings of this
specific case and establishes remedies that are consistent with
prior court tests that judged the validity of relief from
infractions of the Sherman Antitrust Law.
1. Microsoft would have to offer a stripped version of Windows.
Although much thought must go into the implementation
methodology of this recommendation, it could have the effect of
reducing consumer costs by encouraging the development of
alternative personal computing appliances with competitive
applications software. It would also have the effect of making it
more difficult for Microsoft to exclude competition by tying its
operating systems to its applications, content and services.
2. Microsoft must support Java.
Enterprise consumers have espoused Java as a highly useful
programming language. Because it is an interpreted, object oriented,
platform independent language, Java can be used to reduce the cost
of developing, deploying and supporting networked applications.
Despite the obvious benefits to the consumer, Microsoft wants to
kill Java by making it irrelevant within a Microsoft controlled
programming environment. Forcing Microsoft to give its full support
to Java would give the Enterprise consumer and applications software
developer incremental choice in the selection of development
environments.
3. Microsoft would be compelled to make Office available for all
popular operating systems. Consumers have been forced to accept
either Apple or Microsoft PC operating systems as a defacto
prerequisite for using the company's Office suite. If Office were
made available for all popular non-Microsoft operating systems,
consumers would have a wider choice of operating system
environments. In addition, this recommendation would encourage the
development of competitive PC operating systems, presumably based on
architectures that could deliver superior reliability, function and
security.
Given a carefully constructed court approved implementation and
supervision methodology, these recommendations would be most helpful
to the restoration of competition within the PC and network
appliance software industries. However, if we want to preserve an
open and competitive market, and if we want to be vigilant in our
support of acceptable corporate behavior, then we should consider
three additional recommendations.
4. Restrict Microsoft from the Embedded Systems market.
There are a number of reasons to restrict Microsoft's
participation in the embedded systems market5. For the purposes of
this specific settlement, however, we must focus our attention on
the restoration of competition and innovation within the PC market.
Going forward, we also need to ensure consumer choice in the markets
for set top boxes, entertainment devices and communication
appliances, as well as network based content and services. As
discussed above, Microsoft's announced strategy is to tie its
software products to its services and content businesses. If
Microsoft is successful with these initiatives, this company will
have greatly extended its marketing power and will be in a position
to monopolize segments of the entertainment and communications
industries.
For a period of seven years, therefore, Microsoft should be
prohibited from selling any embedded systems software products,
including CE, its derivatives and any comparable products. If there
is to be any credible competition for Microsoft's existing monopoly
over PC operating system architectures, it is most likely to come
from the manufacturers of network attached appliances. Over time,
the embedded software within products will increase in
sophistication. There is no reason why these system architectures
can not be used to provide the consumer with the whole range of PC
applications.
Microsoft would be compelled to establish a separate company for
its CE, Stinger, XBox, PocketPC, set top box and all other currently
active embedded systems product efforts within 8 months of signing a
settlement agreement. Microsoft would not be allowed to own any part
of the company or its stock for a period of 7 years. Any funding for
the newly spun-off company must come from sources in which Microsoft
has no financial interest. Five years after the spin-off, Microsoft
would be allowed to start a new embedded software development effort
that could be offered for sale no sooner than seven years after
signing the settlement agreement.
Placing restrictions on Microsoft's embedded systems efforts
will reduce the company's ability to dominate the related
communication and entertainment markets. Microsoft would be
encouraged to establish partnerships with the existing content and
service companies as well as the manufacturers of embedded hardware
and software products. These markets can then evolve in ways that
are not tied to a single company's business strategy and revenue
plan.
5. Place Microsoft under Court Supervision
It is difficult to imagine how the proposed settlement terms
will prevent Microsoft from engaging in anti-competitive behavior.
One would have to assume that Microsoft is immune from the
temptations of corporate power. It would be helpful, therefore, if
Microsoft were placed under the supervision of the court. A
methodology must be developed that permits complaints of wrongdoing
to be reviewed in a prompt and fair manner. Fines and restrictions,
where necessary and justifiable, should be imposed by the court
after a hearing process.
5 A more detailed discussion of the basis for the
recommendations and comments
[[Page 28146]]
presented in this document may be found in my book:
``CyberCarnage: Everything We Own Is Obsolete''
Court supervision should reduce the need for further Justice
Department action and could be used to establish the parameters for
pending civil actions. The intention is that Microsoft could engage
in any permitted business practice, strategy and tactic it wished,
so long as the court agrees that its actions are lawful. The period
of supervision should be continued until the court, by its own
determination, believes that supervision is no longer justified.
6. Insist on a Code of Conduct
If we assume that we do not want our larger corporations to be
driven solely by the mantra of revenue and profit growth, then any
company that achieves a dominate position within any single industry
has an obligation to adjust its behavior to operate in the public
interest. The usual mechanism is through the imposition of
government regulation. Absent this solution, the alternative is to
insist that the dominant company have a set of enforceable standards
against which it is possible to judge individual employee conduct.
Under court supervision, Microsoft should be compelled to adopt
a Code of Conduct. Specific sections should address this company's
relationship with competitors, suppliers, consumers, and partners. A
methodology must be developed that permits complaints of wrongdoing
to be reviewed in a prompt and fair manner. Fines and restrictions,
where necessary and justifiable, should be imposed against
individual employees.
It would appear that these recommendations can be implemented in
a fair and equitable manner. The objective is not to unduly punish
Microsoft. The Third and Fourth Waves of computing are history. We
must look forward, not backward. Punishment is less desirable than
the creation of a competitive, needs driven, marketing environment
for the consumer. It would appear that all six recommendations, if
implemented as a whole, would have a minimal impact on Microsoft's
existing revenues and profits. There would be little interference
with the company's PC and server software business. Over the next 5
to 7 years, the net effect is that Microsoft would not grow as fast
and it would have to look to industry partners for some products
compliment its .Net strategy.
For the consumer, however, the restoration of competition within
the PC industry will be enormously beneficial. New innovation can
take the form of products that are easier to manage, more reliable,
more secure, and less costly to own.
The Sherman Antitrust Law
As a piece of legislation, the Sherman Antitrust Law appears to
be obsolete. The Sherman Antitrust Act of 1890 was designed to deal
with the political and monopoly power of (frequently interlocking)
trusts. Specific companies had pricing, availability, distribution
and product power over the consumer. Relief came in the form
specific restrictions to business practices and monetary punishment.
The Sherman Antitrust Law does not address the defacto standards
issue. Over the last 75 years, the telephone, teletype, electric,
water, radio, entertainment, and television industries have been
characterized by the evolution of increased concentration based on a
company dominated list of defacto standards. Within the public
services industries, regulation has been used to ensure that these
standards are beneficial to the public interest. There are
additional examples of industrial standards that have been promoted
for the benefit of all potential players. When RCA set the defacto
standards for color television, for example, multiple industry
participants were able to adopt them for their individual benefit.
Dominant players set the rules of competition and corporate
existence. All industries are vulnerable. Airlines, banking,
insurance, manufacturing, retailing--;it does not matter. The
potential for domination--;whether by marketing power, financial
strength, or technology--;exists.
And if 21st century industries tend to gravitate toward single
standards established by one dominant player, then we need to ask
multiple questions:
?What is an open and competitive market?
?What is the basis for determining economic concentration?
?What is market domination?
?Should a company be allowed to use it's domination of one
market to leverage its customer base into the domination of other
markets?
? If the consumer is forced to purchase defective and/or
dysfunctional products because there is no viable alternative, what
is the dominant company's implied liability?
?What are consumer rights? (How can they be measured?)
?At what point does the power of the dominant player jeopardize
consumer rights?
?What is a fair penalty for jeopardizing consumer rights?
If a market is dominated by a single company, at what point does
this imply that it must assume a fiduciary responsibility to act in
the public interest? And what are the guidelines for corporate
behavior? How will they be enforced?
?How much political and economic power do we want a single
company to accumulate within a specific market?
?And finally; What is the mechanism for restructuring
competition?
Obviously, there are many more questions that need to be
addressed if the Sherman Act is to be rendered relevant to the
realities of 21st Century Corporations. The purpose of this more
limited discussion, however, is to demonstrate the deficiencies of
the Sherman Act when considering the specific parameters of this
settlement. Neither the Sherman Act, nor the proposed settlement,
address the realities of existing market structures, emerging
technologies, defacto standards, the issues of convergence or the
use of 21st century corporate power. Since the Sherman Act currently
provides inadequate guidelines for establishing what will be--;
essentially--;public policy, then the court has two choices:
? Interpret the law within the narrow confines of this case
using legal precedent (which essentially will let Microsoft off the
hook); or
Broaden the interpretation of the Sherman Act in order to
protect the consumer from further harm that may occur in the future
(which will require the Court to consider issues and questions not
necessarily documented within the scope of this case).
Either way, the court's determination will be sent to the
Supreme Court for resolution.
Conclusion
Since the proposed Justice Department settlement provides only
limited relief for a very narrowly defined case, it will fail to
provide the public policy guidelines that are so desperately needed
to protect the consumer from the abuse of corporate authority. It
does nothing to relieve the increasing concentration of political,
economic and marketing power that is now occurring within the
computer, communication and entertainment industries.
We are thus faced with two realities. On the one hand there is
the reality of the specifics of this case and the proposed
settlement remedies. On the other hand, there is the reality of the
need to maintain open and competitive markets for the products,
services and content. A really good settlement will bridge these two
realities.
As for the Sherman Act? Corporate governance is out of control.
Unfortunately, we all know that Congress will not act until it is
politically expedient to do so. Failure to act implies acceptance of
the status quo. Competition will fade. Corporate power and influence
will be concentrated. More Enron's will happen. By the time congress
acts, if at all, it may be too late to impose meaningful reform.
So it is up to our court system, and perhaps the Commissions of
the European Union, to both make and execute the guidelines we need
to protect the consumer. We want our corporations, including
Microsoft, to be successful. We expect them to grow their revenues
and profits. We want them to pursue new business opportunities. But
we also want them to operate within open and competitive markets so
that consumers have an opportunity to purchase the products,
services and content they want, at a price they can afford, and on
terms that make them practical. That means that our legal system
must guard against the potential abuse of corporate power and the
inherent problems of market domination. In this settlement, we are
asking the court to define those guidelines in a way that protects
consumers from the potential of future abuse.
Is that too large a task? Too sweeping a challenge? Too far from
the specifics of this case? I think not. It is the reality of 21st
century technology and market structures. Convergence, after all,
implies consolidation. And consolidation breeds domination.
MTC-00027859
From: Bill Horne
To: Microsoft ATR
Date: 1/28/02 11:39am
Subject: Microsoft Settlement
I believe that the proposed DOJ settlement with Microsoft is
wrong and will further eliminate lawful competition with this
criminal corporation. Do please consider changing the settlement to
help struggling Operating Systems developers as well a browzer
developers.
[[Page 28147]]
Bill Horne
``Five minutes after any agreement is signed with
Microsoft, they'll be thinking of how to violate the agreement.
They're predators. They crush their competition. They crush new
ideas. They stifle innovation. That's what they
do.''--;Massachusetts Attorney General
Thomas F. Reilly
MTC-00027860
From: Jack
To: Microsoft ATR
Date: 1/28/02 11:37am
Subject: Microsoft Settlement
2601 NE Jack London #14
Corvallis, OR 97330
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am sending this email to show my support for the settlement
reached in the Microsoft antitrust case. The settlement should make
it easier for other companies to work with Microsoft and its
products. I find it weird that the suit was brought in the first
place, since companies that wanted more business in this industry
could get it by making their products better. I think innovation, by
the whole technology industry including Microsoft, should be
encouraged, not stifled.
I work in the computer printer segment of the computer
technology. Compatibility of our printers with popular software is
important to our business. It could be of some considerable benefit
to our partners, the computer industry, and us in general, that the
settlement will allow us to have the open access to Microsoft's
copyright software code for the internal interfaces of the widely
used Windows programs.
Industry standards are the lifeblood of peripheral products,
such as our printers. Microsoft has greatly helped the industry by
setting an affordable, easy to use standard that a wide range of
people around the world have chosen to adopt out of the multitude of
systems available.
Other terms in the settlement, such as changes to Microsoft's
ability to exercise its contract rights will help the industry,
including Microsoft's rivals, such as AOL Time Warner. AOL will be
able to work with computer manufacturers to remove Microsoft's
Internet Explorer and Windows Messenger and replace them with AOL's
own Netscape Navigator and AOL Internet Messenger, AIM. So, in terms
of the American computer industry as a whole, the settlement's
requirements of increased openness, flexibility and disclosure from
Microsoft should lead to greater experimentation and innovation.
Microsoft should benefit too, from the end of the distractions to
its business focus and costs of litigation.
The settlement is, in my opinion, in the public interest.
Sincerely,
Jack Kolb
MTC-00027861
From: Mark McGee
To: Microsoft ATR
Date: 1/28/02 11:38am
Subject: Microsoft Settlement
Dear Sir/Madam:
I am writing in support of the settlement agreement entered into
by Microsoft, the Dept. of Justice, and nine states.
It's best for everyone involved to proceed with the provisions
agreed to and get on with business.
Sincerely,
Mark McGee
Sammamish, WA
MTC-00027863
From: Guthrie Chamberlain
To: Microsoft ATR
Date: 1/28/02 11:38am
Subject: Microsoft Settlement
Dear Mr. Ashcroft
I am writing today to voice my opinion on the Microsoft
Antitrust case. As an owner of a business that is part of the IT
industry I feel this case has been dragging on for too long and it
has hurt not only Microsoft, the entire IT industry and indeed the
entire economy. The government has no rights meddling in the affairs
of independent business unless it is truly hurting consumers through
unfair practices. This is certainly not the case with Microsoft who
has facilitated computing technology to benefit the majority of the
world's population. Productivity and creativity has been stifled and
it is now showing in the marketplace. Our economy has grown so much
in the past two decades, due mainly to Microsoft and other key
companies providing innovative products to the general consumer.
I have firsthand experience dealing with Microsoft, as I work as
a Systems Integrator, creating and installing networks. Their
products have made our business and the majority of our clients run
smoothly and more efficient. As Microsoft experienced problems due
to these lawsuits, so have we and it has affected the entire
economy. I feel part of the recession that we are now experiencing
is due to these lawsuits. I ask that you please take the public's
concern into consideration and help put an end to the lawsuits.
Additionally, I hope that remaining nine states can come to quick
settlements, without further scrutiny from the government.
Sincerely,
Guthrie Chamberlain
President www.eagletgi.com
[email protected]
Phone: 740.373.9729 x101
MTC-00027864
From: Carol Hansell
To: Microsoft ATR
Date: 1/28/02 11:39am
Subject: Microsoft's campaign for comments
FYI: ``Americans for Technology Leadership'' phoned
our (small) office 3 times plus sent us a brochure in the mail
soliciting comments in support of their position on the Microsoft
case (that the November agreement be accepted as the final word).
Only by carefully checking their web site does one find out that
they are funded by Microsoft Corp. (a ``Founding
Member''). Personally I do *not* support allowing predatory or
anti-competitive business practices, and I think any comments
submitted through ``Americans for Technology Leadership''
(there is a form to fill out on their web site) should be viewed in
light of their being solicited by an intensive campaign funded by
Microsoft Corp. (through a front organization) presenting the
Microsoft position only in favorable terms.
Thank you for your interest in fairness.
Carol Hansell,
Administrative Assistant
Association of Boards of Certification
208--;5th Street, Ames, IA 50010-;6259
Phone (515) 232-;3623 / Fax (515) 232-;3778
http://www.abccert.org
MTC-00027865
From: Adam Wunn
To: Microsoft ATR
Date: 1/28/02 11:39am
Subject: Microsoft Settlement
The settlement is a bad idea. It allows Microsoft to just go
about is business of squashing everyone else. Look at the areas they
now control! They want more and they are now being rewarded with a
slap on the hand. America needs Microsoft stopped from ruining
competition in the computing landscape. Microsoft has proven
duplicitous and has displayed their outright blatant lying nature
over and over again.
Save the taxpayer some money and do the job right this time,
otherwise we will just revisit this in a few years. Microsoft has
shown a propensity to skirt the rules or follow them long enough to
make it pretty window dressing. Fix the problem, make they do the
time for the crime.
MTC-00027866
From: psewell psewelll
To: Microsoft ATR
Date: 1/28/02 11:40am
Subject: The way I see the Microsoft settlement
Sir:
How does one go about expressing their opinion, about something
that there government said is in their best interest of there
citizens of our wonderful USA.
Here are my thoughts on this settlement concerning Microsoft
Company , which I believe is the first true all American USA
company..
First allow me to say up front here, I started reading the court
documents about the terms of the settlement and was very troubled by
the findings and ground rules laid down for Microsoft. It reads like
more money out of the public pockets and nothing to protect our best
interest. in the software or computer world.
I feel that the agreement isn't really in the consumers best
interest nor is it in Microsoft's best interest, this is my opinion.
The decree reads like a very confusing judgment. which. in the end I
believe will put software & computers out of reach for the
average everyday American citizen,
Now mind you. I said average citizen, not those who are already
at the bottom or top, of the food chain. [no disrespect meant there]
Why do I say this. Because you have took a
[[Page 28148]]
company in the name of some folks greed and put a price tag on
everything which has to do with technology , which, technology has
no price tag, nor is mankind a third of the way ready for this
wonderful new world of technology. I hope and pray you understand
this statement. this could destroy generations of children now, and
those to be born.
I wonder in today's world, does any one really care about the
citizens of our nation or humanity. Maybe the green god rules in
total. Heaven help us. There will never be a standard set for
software. that is the way I see it at this time from the decree
being handed down..
I have shelf's full of useless software which doesn't work on my
computers. I purchase software & hardware from those who only
seek profit, and no perfection in there software to work with any OS
system. let the buyer be truly aware of what this will eventually
lead to with software for the consumer.
Or even Companies at there total own risk we will take your cash
and bed... you the consumer. The internet will all but be destroyed
by those who would benefit from it, in the name of greed and
jealousy by a few. Who only have there interest at hand, so sorry
but this is how I see it from the beginning of this to continued law
suits against Microsoft. Allow me to state that I have no axe to
grind with anyone nor do I work for Microsoft.
I choose on my own to use Microsoft's products because their
software was the only software that actually works for me being a
lay person, and I didn't need a PhD to use Microsoft's software,
they supported there software, with out charging outrageous fees to
fix there product if something went wrong with there software, which
was a rare thing for such a large software company. to take
responsibly for there products... Nor did they tease me with there
browser like Netscape did [my very first browser] offer me the bare
bones files, in order for there browser to work I had to spend hard
earn funds at that time to get it to work for me [ very complicated]
to enjoy using what my and a lot of other folks tax dollars have
already paid for, the Internet.
I hope you understand what I am trying my best to get across to
you here. I think this issue should be rethought and support
Microsoft more then what it isn't doing now in my opinion, my sixty
three years could be wrong , but I don't think so.
This isn't a phone company or a light company, etc.. we cannot
continue to destroy companies because someone thinks that they are
to wealthy or that they want part of the action, the phone company
is a good example.......this company Microsoft is part of the very
back bone of our nation the new frontier of the twenty-first
century. they are a American Global Company with major assets here
in the mother land, supply jobs to the best and brightest of our
youth to move forward in the 21st century...who sets good standards
on how a company should treat those who work for them
fairly........this is Wonderful.........this is something we can not
destroy in the name of greed.....you know like when we first started
out as a raw nation, an new frontier the west ...... in the earlier
years. We can never revert back, even thought some of us think that
is what it will take to get our house in order . it Takes honesty
& compassion for mankind to put our house in order, if we are
lucky as a nation.
I would also like to suggest that we change some of those
outdated Sherman act laws, they are a great guide to follow , but
horrible to use against companies in today's world, those standards
where for that time period in our history, we also need to remove a
lot of business tax shelters and start making them pay there fair
share, restore checks and balances, not when someone thinks a
company are person is to large are to big. also, we need to allow
those who build there own companies from there pockets not the tax
payers pockets. a little more legal lead way. Sometimes we will need
to allow a company to be a monopoly [ this is one of those
instances] with guidance's. By those whom we tax payers, pay as our
watch dogs to protect us an our country from being devoured. Does
that make sense. No two babies are birth the same way, I had to
throw that in, It must be said. No I do not own any stock in
Microsoft.
Thank you for allowing me to voice my opinions. God bless you
and our Nation.
PL Sewell
http://www.sewellsports.com
MTC-00027867
From: Pindel, Dave
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:48am
Subject: Microsoft Settlement
David L. Pindel
Instructor of Biology
Division of Biology and Chemistry
Corning Community College
1 Academic Drive
Corning, NY 14830
(607) 962-;9536
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I appreciate the opportunity to comment on the settlement
agreement reached between Microsoft and the Justice Department in
the antitrust litigation. Please do not forego the opportunity to
settle this case now. The settlement provides benefits for the
economy which can be taken advantage of now rather than taking the
risk of litigation. The remedies awarded by a Court may not be as
advantageous to the public.
Microsoft has agreed to eliminate a number of alleged barriers
to competition by adjusting its pricing policies, eliminating
restrictions in its distribution contracts with third parties, and
allowing competition from non-Microsoft software within Windows
systems. These changes will help the computer industry as well as
provide greater choice of products for consumers.
Sincerely,
David Pindel
418 Sunset Drive #14A
Coming, NY 14830
MTC-0002786/--;0002
MTC-00027868
From: Steven White
To: Microsoft ATR
Date: 1/28/02 11:42am
Subject: Microsoft Settlement
Since today is the deadline for public comments, I thought I
would add one parting shot to the email I sent some weeks ago and
the hand-written note I sent yesterday by fax. I assume that a lot
of people more knowledgeable than I have explained the details of
why the settlement is too weak to stop Microsoft from stifling
innovation (unless it's their own) and driving other companies out
of business. I have seen pages of it in mainstream newspapers and
computer publications, and I have gotten a clear explanation from my
own state attorney general. You must have seen those also. Let me
just make one non-technical point.
Don't be swayed by the marketing-type arguments I hear. Some
people say that this whole affair is just Microsoft competitors
jealous of Microsoft's success and unable to compete with them, and
looking to the government to help them. That is not correct. As the
findings of fact told, the issue is that Microsoft will not LET
other companies compete. Their way of ``competing'' is not
to make a better product, it is to drive competitors out of
business. That's why they have things like the contracts with
computer makers that prohibit computer makers from even talking
about competing products, let alone selling them. You might make a
settlement that says to Microsoft, ``No, no no, you mustn't do
that any more,'' but they will find a way around that. They
might not make the contracts any more, but they will use subtle
strong-arm tactics, or will find something that follows the letter
of the law but not the intent of the settlement. There must be
someting structural that forces them to behave, not just what
amounts to a scolding.
And also don't be fooled by the ``freedom to
innovate'' arguments where Microsoft says that a settlement
prevents them from ``innovating'' and puts the government
into the software design business. That is not the point. The point
is that Microsoft stops others from innovating and that is what
prevents the computer industry from being all it can be. Microsoft's
tactics starve other companies from the money they could use to
offer better products. The BE-OS is a perfect example. Microsoft's
contracts prevented BE-OS from being sold by computer makers. This
deprived BE of money it could have used to improve its product so
more people would want to buy it. BE went bankrupt.
And finally don't be swayed by arguments that what is good for
Microsoft is good for America. Bringing Microsoft to heel will not
cripple the economy or have some catastrophic consequences.
I have four computers at home and none of them run any Microsoft
software. I have to struggle a bit with them, but I get by just
fine. With more money going to other companies, it will get only
better.
Thank you.
Steven White
City of Bloomington
2215 W Old Shakopee Rd
Bloomington MN 55431-;3096
[[Page 28149]]
USA
952-;563-;4882 (voice)
952-;563-;4672 (fax)
[email protected]
MTC-00027869
From: Gary Enos
To: Microsoft ATR
Date: 1/28/02 11:44am
Subject: Microsoft Settlement
To whom it may concern,
I have watched the case against Microsoft and believe the
actions to date to be an atrocity of justice. The actions taken
against Microsoft have been of questionable substance and lacking a
justified agenda. The negative affects on the technology sector and
the de-valuation of one of America's greatest assets
``Microsoft'' has been hard to justify.
Microsoft has influenced the growth of the computer and compute
environments more than any company in history. Many companies and
manufacturers have benefited from the open development and utility
of the Windows operating system and Microsoft certifications. The
continued attack on Microsoft is un-productive and a challenge to
the innovative spirit and freedom to grow that is typified by
American business.
The marketplace has demanded close integration of OS and
functionality. Integration of form and function is not a wrong doing
and Microsoft should be commended for all they have accomplished and
brought to America's technical dominance. UNIX manufacturers have
been imbedding programs in the OS for years; MacOS contains many
imbedded functions. Microsoft has done nothing wrong and has acted
responsibly to meet the needs of the market and the installed base
of PC users/manufacturers. Microsoft is strong because they develop
superior products in response to demand. They must be allowed to
continue pushing the envelop and to have the freedom to innovate.
The States which have failed to support the DOJ decision are
wrong. It is wrong for AOL/Time Warner and Netscape to pursue or be
permitted to pursue continued challenges against Microsoft. There is
not value in the pursuit, only further devaluation of a great
company and the harm to many investors and the technology industry
as a whole.
AOL and MSN both offer messaging. AOL, Compuserve, ATT and other
services are offered as part of the Online services load of Windows
98, ME, 2000 and XP systems. The users have complete freedom to
select ISP, Browser, and email client. The fact that Explorer,
Outlook express, and MSN are options to the OS load is perfectly
acceptable. These are also superior applications.
Please take action to prevent further legal challenge and wasted
energy to defend Microsoft's freedom to innovate. The DOJ has
decided; lets get on with re-building the US economy and re-
vitalizing the technology sector of this great country.
Regards,
Gary Enos
6842 West Sherri Drive
Macedonia, Ohio 44056
MTC-00027870
From: Roz Crowell
To: Microsoft ATR
Date: 1/28/02 11:43am
Subject: Microsoft Settlement
To whom it may concern:
For heavens sake, PLEASE, adopt the terms of the agreement with
Microsoft and let the country get on with living and move this
industry forward!!
Thank you!
Sincerely,
Mrs. H. Crowell
MTC-00027871
From: Bryan Campbell
To: Microsoft ATR
Date: 1/28/02 11:43am
Subject: Microsoft Settlement
Bryan Campbell
[email protected]
28 January 2001
Ms. Renata Hesse
Trial Attorney
Suite 1200
Antitrust Division
Department of Justice
A Cornerstone Technology for the Twenty-First Century
``Home users who buy new PCs don't have much choice in
operating systems. Once Windows XP ships, nearly all computers will
be sold with it installed.'' ``When your six-month-old
version of MusicMatch Jukebox doesn't work, you may decide just to
live with WMP [Windows Media Player].'' The New Windows, PC
Magazine 30 October 2001
http://www.pcmag.com/article/
0,2997,s%253D1590%2526a%253D15591,00.asp
This phase of the antitrust trial concerning Microsoft products
is occurring at one of the most trying times in the history of the
United States. The due deliberation given it (going on as does all
business) says much about the resolve of the nation and its allies.
Personal Computers are vital to the world economy which means even
in this dire time the United States needs to ensure the vitality of
the whole Personal Computer industry which is a mainstay for the
engine of the world economy in this new century. Security is best
served by having a strong economy that has the means to lift up the
world into a new prosperity as was done after World War II.
At question in this case is the unfettered access to the next
generation of the common infrastructure. Microsoft Operating Systems
have become the cornerstone for running a myriad of Personal
Computers world-wide! These Operating Systems take a place beside
raods and highways, electricity, and the telephone system, as
infrastructure services that are fundamental to everyday life in
modern society. Care must thus be observed with the newest Microsoft
system, Windows, to see that it remains a platform any company or
individual may build on and garner the full benefits of any
innovation.
1. The Revised Proposed Final Judgement gives Microsoft too much
influence over how other developers can implement their programs.
Section III.H allows OEM installs of non-Microsoft products. That
clause is made too narrow by Section III.H.3.2, which states Windows
may invoke a Microsoft product (Section III.H paragraph 2) if
another product does not meet a ``reasonable technical
requirement'' (ActiveX) consistent with Windows. Once it is in
writing, ActiveX support will be a minimum for all programs to meet.
That will be anti-competitive by requiring programs to be a
proprietary Microsoft ActiveX control as a ``reasonable
technical requirement'' to allow OEM installs when some
software firms would prefer to use only Java. Studying constitutions
and court decisions is part of my background and I have seen
innocuous clauses gain unexpected importance.
Section III.H.3.2 could be such a clause causing OEMs to leave
Microsoft programs in place. That Microsoft has broad latitude to
override OEM software choices makes this Judgement contrary to the
public interest. Section III.C of the Judgment, indeed, seeks to
leave open such options. Generally, as Microsoft does not give tech
support to 0EM built systems, there is not a strong business reason
for Microsoft to so closely govern the initial boot. Buyer recourse
is to an OEM, which bears the costs of more technical support phone
calls if it deploys a confusing initial boot or a confusing
configuration. Microsoft costs do not raise due to some inept OEM
ideas so OEMs can certainly be left to their own ideas on finalizing
systems. OEMs carry the financial burden of manufacturing and
selling what they build so OEMs need the freedom to install programs
that make those systems most attractive to buyers. If an OEM markets
PCs that misbehave, a Web or other review will quickly make that
news and the market will react leading that OEM to fix its error
without reflecting on Windows itself. Microsoft paternalism is
unnecessary. Not to say that it can not protect the reputation of
its product, only that in ensuring Windows works as expected
Microsoft does not also stifle non-Microsoft programs because those
developers choose to use their own vision on the Windows Operating
System.
1a. The revised settlement gives Microsoft far too much
competitive advantage because Section III.H.3.1 and its preamble let
the Windows Operating System select Microsoft programs to connect to
a Microsoft server. That leaves the door wide open to Microsoft
specifying, for example, only Internet Explorer may be used to
update Windows so people wishing to use other browsers still need be
familiar with Internet Explorer. People using the Lynx browser
perhaps because of reduced vision or Opera's browser due to physical
disability would have no way to visit Microsoft Web sites or to
update Windows. This settlement may allow discrimination and or
infringe upon the Americans with Disabilities Act (ADA) and perhaps
other codes if a secondary route is only left to people with
disabilities. (Plus their Personal Computers are painstaking
configured to allow independent operation which a central authority
is unlikely to be able to clone no matter how strong its
motivation!) From a wider perspective, this clause gives Microsoft
too much latitude to disregard individual choice.
Other vendors will be reluctant to write similar programs
knowing reasonable earnings from the work is unlikely as possible
customers will not use a program since Windows may by-pass it at
critical
[[Page 28150]]
times when customers need be most familiar with their programs to
ensure successful outcomes. Moreover, the Court of Appeals Ruling on
page 30 (using the Adobe PDF rendering) notes having two browsers on
systems is unpalatable to OEMs as some customers will phone the
support line asking which browser to run. OEMs seek to limit such
costly calls so OEMs will not configure systems with two similar
programs to avoid customer confusion. Because OEMs carry the burden
of product support they need to be able to configure systems to best
suit the individual buying a system. Windows is a most adaptable
Operating System allowing buyers to run Personal Computers in a
personalized fashion, giving OEMs an option to begin the
personalization process would be one way to make using a new
Personal Computer easier. Conversely, if via Section III.H.3.1
Windows ignores buyer chosen software to increase ease of use by
using only one browser buyers will of necessity run Internet
Explorer to be able to update Windows. Some violations the Court of
Appeals upheld deal with promoting exclusive use of Internet
Explorer, no part of any settlement should allow for any similar
eventuality. Microsoft must be encouraged to quickly implement open
standards so any browser can interact the same way with any server.
The guiding goal should be the example of the telephone system which
at one time only allowed equipment built by the phone company to be
connected to the system. By the early 1980s, equipment built by any
manufacturer was allowed to connect to the telephone system
something that helped the greatly expanded types of telephone
services available now. Plus at that time telephone companies
stopped requiring that handsets be wired into the system by their
employees as telephone sockets were fitted with jacks that allow
easy connection of handsets. Having seen other technologies become
much easier for customers to handle alone it would be most
unfortunate to go backwards against that trend by letting Personal
Computers appear to be devices that only a central authority can
setup.
Car dealers offer customers many options, although the supply
chain for assembly is long with an involved manufacturing process.
Since car dealers let customers pick items such as seat color
likewise 0EMs can have options for Web players, browsers, and other
preferred software components. (Dell Computer buyers custom
configure hardware for new systems http://www.zdnet.com/anchordesk/
stories/story/0,10738,2834200,00.html fifth paragraph, doing the
same with some Web ``plug-in'' software merely extends an
existing concept.) Yes the finishing stages of Personal Computer
assemble will change to yield widespread benefit as new systems have
the newest versions of programs installed.
Customers satisfaction should go up given less need to update
new systems with the most recent versions of programs helping lower
or hold steady OEMs costs by reducing phone calls to support on what
to do when an update causes a malfunction. Microsoft benefits by
having some updates done before customers receive systems. A 3 Dec
2001 article at http://www.wired.com/news/print/0,1294,48756,00.html
shows a patch which closes many security holes in Microsoft Outlook
is very seldom downloaded as a percentage of estimated Outlook
users. And that a tiny test group had little success installing the
patch. (Having run desktop systems for 23 years, I'm fully familiar
with instructions for software I found those for the patch process
involved. Not complex, just a process needing diligence to
complete.) All software firms try to make updates easy, yet
customers, especially the majority not interested in the technology
itself, are fatigued by frequent updates. By having the Operating
System supply fewer components (where they become outdated with
unfortunate speed) OEMs will be able to relieve buyers of some extra
setup chores, making them more immediately productive! For retail
sales OEMs could provide CDs (which stores could also update) with
new versions of programs.
Returning to the comparison with the phone system where
interoperability (meaning seamless operation between components from
diverse manufactures) reigns supreme the idea that only Microsoft
programs (besides when self-updating) be allowed to access Microsoft
servers is as inefficient as calling the phone company for customer
service merely to be told to call back on handset it built. Possible
problems with other browsers using Microsoft servers probably stem
from Microsoft placing proprietary functions in its own Internet
Explorer browser (please see http://www.pcmag.com/article/
0,2997,s%253D1470%2526a%253D4804,00.asp) and then
using those function on Microsoft servers. The public interest is
only served by universal Web access as exemplified in continental
telephone systems where those responsible for the system do not
limit customer choice. lb. My 23 years of experience with desktop
class computers (then called ``micros'') stems from my
being a person who is physically disabled (having Cerebral Palsy
entails lack of fine motor control, unsteady and shaky movements,
and difficulty in moving). That familiarity with keyboards began in
about 1961 with I began using a headwand to type on a typewriter. My
first ``micro'' computer in 1978 enabled me to complete a
Bachelor of Arts in History by 1982. Even a computer did not speed
up my typing though (a photo at http://www.opera.com/press/guides/
operapower suggests how I work) so the whole Degree took seven years
to finish, letting me to all the reading (and much more) related to
the History, Political Economy, and Economics courses for the
Degree. A background enabling me to place this case in a broader
perspective than is often done, with the skill to look at all
factors and sides before writing an analysis.
Vital to note also is the wide power of software to do amazing
things! It is software which transforms the diverse components
within desktop computers into cohesive wholes able to a universe of
tasks. If you do not want to, or cannot hold down two keys at once
solutions abound! A two key command can be programmed on to one key
or software`holds'' modifier keys like Shift on till
another key is typed. Personal Computers adapt to the person. For
browsing the first thing I did on purchasing Web access in 1995 was
Search for a suitable browser and found NCSA Mosaic 2.1 highly
usable.
Please see http://archive.ncsa.uiuc.edu/SDG/Software/mosaic-w/
releaseinfo/2.1/WBook--;60. html for its one key commands which
were enough for keyboard Web navigation, at that time. By mid-1996
the Web was more complex and Opera Software http://www.opera.com had
a browser that has since filled the bill. Being able to find and run
commercial software is huge a cost saving, too. On the Web site for
the White House, ``Fulfilling America's Promise to
Americans with Disabilities'' http://www.whitehouse.gov/news/
freedominitiative/freedominitiative.html says adaptive technology to
make Personal Computers usable by people with a disability costs
$2000 to $20,000 a system. In comparison Opera and this macro
program (to program commands or often used phrases to run by typing
one or two keys) http://www.macros.com together cost $65, showing
that great software can reduce some expense of making computers
usable by people with a disability. Such a large saving is rare, yet
it illuminates the power of software.
The malleable nature of software is the vital point as that
versatility lower costs. Every program does not have to use the
exact same approach to accomplish any task. Most programs even have
a few ways to do any one task. Some macro programs carefully guide
you through macro building, the one I run also does direct building
which is less work for me. Neither approach is more correct, the
best solution is the one most suited to the interest and skill level
of the person performing the task. With Microsoft moving to place
more full programs in the Operating System the best feature of
software, its malleable nature, will be lost.
We risk reaching a point where people only know how run a few
programs by rote as they service the computer instead of computers
serving the individual. In an enlightened age of reduced regulation
it is very strange to see Microsoft regulating the Personal Computer
industry. Because many clauses in the Proposed Judgement give
Microsoft ways around prohibitions, especially Section III.H.3 using
the word `notwithstanding'' (meaning despite stated
limits Microsoft may have its way), it is no over statement to say
Microsoft may now regulate its industry. With it being able to still
influence many aspects of OEM systems customers will largely see
Windows in the form Microsoft wants, placing it at the center of the
Personal Computer letting Microsoft regulate industry affairs. When
a monopoly impedes the free flow of products that is at odds with
the nominal workings of a capitalist economy and its open markets.
1c. Technology plays its best role in economic growth when it is
deployed in a manner that does not favor or give special status to
any party (which is separate from financial returns due product
creators). Applying that concept to Operating Systems for Personal
Computers is illuminating. DOS began in 1981 as a system with the
bare essentials to run a computer, some might say so bare that it
was like selling an engine with no spark plugs.
[[Page 28151]]
Other vendors began selling software to perform such essential
tasks. In 1991 Microsoft released DOS 5 which later with DOS 6 were
the first more complete versions, (http://www.nukesoft.co.uk/msdos/
dosversions.htm) less requiring third party software to enable
computer features of that day.
Notable these implementations left room for improvement and
customer choice. Although by 1993 the engine definitely included
spark plugs demanding customers seeking their view of complete
computing were free to buy software offering a full of range options
in areas like memory-management from a number of vendors. What
Microsoft added to DOS are functions virtually fundamental to the
workings of an Operating System, yet there was no wide attempt to
exclude other vendors from those markets. Windows 95 had improved
memory-management so third party software for it all but vanished,
which is natural because the Operating System should be able to
handle a basic computer resource like memory itself.
To understand the impact of combinations a careful review of
whether another product brings a finishing touch to an Operating
System does help. Optional utility software to check Operating
System integrity and better memory-management refine the Operating
System, increasing its ability to perform without incident. Those
items represent more intensive development of what the Operating
System is meant to do, make Personal Computers ready and able to run
programs the owner needs. A built-in browser, media player or the
like expands the Operating System without increasing the integrity
of that software. Expansion adds to the Operating System without
polishing it. When such tying occurs the Operating System can become
more difficult to maintain, unlike the customer benefits derived
from intensive development.
Problems with an expanding Operating System are illustrated by
the security holes Internet Explorer lends Windows. Two articles on
http://www.extremetech.com/article/0,,s%3D25124&a%3D21033,00.asp
explain matters. ``Microsoft Releases IE `Mega-
Patch''' notes that a combined patch now closes various
Internet Explorer holes (one even lets someone take over your
computer, details on http://www.infoworld.com/articles/hn/xml/01/12/
13/011213hnbackdoor.xml). Yet it is not always clear the browser
must be updated to version 5.5 before the patch will install, thus
after download some people gave up. Brett Glass writes further in
the article that stopping is bad, the patch is essential since
Microsoft nearly always has Internet Explorer run, (to view email
sent in the style Web pages) ``unbidden,'' even if
computer ``owners'' act ``to make another browser the
default''. That means owners using another browser must still
maintain Internet Explorer because Microsoft expanded the Operating
System to include its own product. That means just not using
Internet Explorer does not avoid security problems in Windows. Extra
software in the Operating System brings extra problems. This is a
particular bad time for compromised security so it is unwise to make
people work hard for security.
Despite such hard work the second article, ``Internet
Explorer Violates Basic Security Principles,'' on the above
link says that how Javascript runs in Internet Explorer makes it
vulnerable. Malevolent Web sites can ``hijack browsing
sessions,'' steal items like credit card numbers from browser
cookies or read sensitive information from files on computers. No
patch existed when the article went to the Web on 10 Jan 2002.
Disabling Javascript is the only way to seal the gap for now. And
that makes the Web very difficult to use since many sites employ
Javascript to exchange information with browsers and to have Web
page pieces properly placed. An expanded Operating System makes it
difficult for people to decide what browser best serves their
interests because Internet Explorer asserts itself in Windows.
And it seems silly, at first glance, to seek other programs when
the Operating System maker provides software in a persistent manner
to do things. That persistent hampers competitors from fulfilling
the browser or other functions. Brett Glass notes that Internet
Explorer at time runs despite efforts of computer owners to have
Windows launch a non-Microsoft browser when a third program requests
browser functions. Such behavior is anticompetitive because it will
cause some users to surrender and use Microsoft products to get
their jobs done instead of toiling to have Windows always use the
browser they want. Usually Microsoft says bundling will not inhibit
customer choice of software that does not seem to reflect real world
experience. Worse than being anticompetitive is that people are led
to using software which is not secure. Bringing the discipline of
the market is the best way to let customers choose great and secure
software uninfluenced by the first blush of tying.
2. How Microsoft dominance and now monopoly in desktop class
computer Operating Systems functions demonstrates surprising
durability. A product primarily sold on new computers each edition
of the Operating System has a fresh plateau to maintain its
dominance. Not depending on static plants or structures to provide
goods or services in a certain locality means this monopoly is
unlikely to weaken due to age, obsolescence, or outside
encroachment. Not having to finance and maintain fixed assets to
manufacture tangible products means Microsoft is able to quickly
apply resources to new challenges without the lag and expense of
having to retool manufacturing plants to build new kinds of
products. Which is not to say software development is instantaneous
or that Microsoft has no costs only that the expenses are not
structural, not binding it to one course for any time span. With
little to hinder it Microsoft can quickly respond to meet emerging
market trends making the monopoly durable.
What sustains the Operating Systems monopoly is fascinating.
Increasing yearly sales of systems licensed to run Microsoft
Operating Systems created a huge installed base of systems with the
hardware specification derived from the first IBM Personal Computer
in 1981. About 100 million Windows client licenses (including
corporate updates) now ship yearly, with declining computer prices
making it more ``enticing'' to buy new systems than to try
upgrading old ones http://www5.zdnet.com/zdnn/stories/news/
0,4586,5100875,00.html. With Windows put on many new systems the
monopoly is self-renewing as the equipment it runs on is continually
updated. For entities running Windows there is not one large unit or
factory to age and be replace by equipment from competitors at one
moment in time. Interesting too, is that buyers of the Operating
System pay for the equipment its runs on, relieving Microsoft of
paying for equipment to maintain the monopoly. Low costs to
Microsoft, with no decisive point in the product cycle to switch
vendors due to continual buying means the Operating System monopoly
is durable and long lasting.
Development of this point stems from the Court of Appeals note
that Joseph Schumpeter saw only temporary monopolies in technology.
The ruling (page 12) cites Schumpeter's idea of product improvement
causing many firms to dominant a market in sequence. A dynamic
technology market would appear difficult to dominant for long, as
another firm will improve the given item such that buyers flock to
for a few years till a third firm replaces it and so on. That works
when a given item has no dependances on it. If changing the one
item, however, demands that other things must be changed too product
improvement has difficulty unseating the first monopoly.
Schumpeter's theory does not apply to Personal Computers
Operating Systems because Schumpeter could not be expected to
foresee the huge network effect in this arena. Producing a better
Operating System in isolation will not enable buyers to adopt it.
When Microsoft began with MS-DOS and early Windows it did not face a
dominant rival ``with a massive an installed base and as vast
an existing array of applications'' (Court of Appeals ruling
page 23). Instead of being temporary deep support makes the Windows
monopoly most resilient.
2a. Remedies to antitrust activities need to reflect the
strength of the Microsoft monopoly. It is very durable so the
company is much, much more likely to be able to damage other firms
than anything in a judgment disrupting it. Windows is as much a
cornerstone of personal computing as are plumbing and electricity to
a building. Buyers require Windows to be able to run the programs
that form their daily activities and will purchase the Operating
System in a basic or its present expanded form. Any discomfort
experienced by Microsoft is a necessary of result of allowing the
free market to again operate. Bumps in the new open market road are
just the expected opposite reaction to benefits from antitrust
activities. In specifying what Microsoft must not do its ability to
employ its own interpretations of matters needs to be considered to
achieve the desired result. The firm managed to sidestep the 1994
Consent Decree http://www.usdoj.gov/atr/cases/f000/0047.htm (page
nine, paragraph three) item that Microsoft not require notification
of any New System line sold with no Microsoft Operating System. In a
most innovative
[[Page 28152]]
fashion, Microsoft had a contest in early 2001 to have system
builders inform Microsoft of systems shipped without Windows.
Builder employees gained more valuable prizes for telling Microsoft
of higher numbers of non-Windows system sales. Microsoft wanted to
see that Enterprise licenses are not misunderstood as covering new
systems, a necessary thing noted in, ``Microsoft offers PC
builders prizes to be finks'' http://www.infoworld.com/
articles/hn/xml/01/05/02/010502hnsitelicense.xml
Letters to Enterprise license holders could of accomplished the
same result without garnering builder sales information which is
private between seller and buyer! Instead, what Microsoft did went
against the idea of the 1994 Decree with a method to gain details on
builder sales by using a voluntary entry to contest which seems to
get around the point Microsoft not require such information, except
perhaps to dissuade clients running non-Microsoft server Operating
Systems (``Be a Microsoft Stoolie, Win a Chair'' http://
news.cnet.com/news/
0-;1278-;210-;5816847-;1.html). Though it is
unknown if Microsoft used information from the contest to influence
software usage it is seen that Microsoft cuts close to prohibited
actions in pursuing its goals, for this case all requirements must
be exacting to prevent sidesteps. Nor can the anticompetitive
ingredient of the contest be ignored as it clearly made known
Microsoft's concern over systems selling without Windows. Because
builders must be able to put Windows on desktop computers to retain
buyers, system builders (particularly less known firms) could take
pause and decide not to risk relations with Microsoft by selling
relatively few (if more expensive) server systems without Windows.
All system software and hardware suppliers can be replaced except
for Microsoft because only it licenses Windows which brings together
all the products from other suppliers into a cohesive unit that can
be sold.
Such complete dependence on a single supplier for the only
product with no substitute would make builders wary of offending
Microsoft since it is the only firm in the Personal Computer
industry that can put other firms out of business by halting access
to merely one product. The Court of Appeals ruling on page 16 says
customers will not change Operating Systems due to the cost of new
programs and training for them which is a burden while other
Operating Systems offer fewer programs.
Also, each hardware component requires a piece of software
referred to as a ``driver'' to mediate communications
between a component and the Operating System the
``driver'' is written for. Component makers write Windows
``drivers'' almost exclusively so system builders lack
options for any simple substitution. Thus relations with Microsoft
are a prime concern leading builders to stay attuned to what
Microsoft wishes. Yes, another Operating System can be used, yet it
demands a seldom seen deep commitment. Lack of ``drivers''
deters buyers from trying another Operating System on new computers,
adding to why buyers stick to Windows despite frequently new
purchases. Linux distributors do provide ``drivers'' with
their Operating System, but these seldom drive all features on
components making these ``drivers'' unattractive
substitutes. Components makers over time have sold many items in
their product category making it difficult for distributors of other
Operating Systems to timely develop ``drivers'' to suit
specific components. A tiny part of the remedy should prohibit
Microsoft from in any way deterring or interfering with components
makers possible writing ``drivers'' for other Operating
Systems.
3. Pricing is the one area where, at a glance, the Operating
System monopoly is not readily discerned. The price is usually not
high compared to other Personal Computer components so previously
cost was not an issue. Point 2 of this submission notes Windows
sales are now about 100 million unit a year. Over an approximate
three year mainstream life of an Operating System total sales do
perhaps yield a monopoly like profit. Especially as Microsoft has
low fixed costs. A humble suggestion to the Court is to investigate
the cost of producing software in a very high volume to discover how
price per unit relates to production cost. Another item to account
for is Microsoft having no direct enduser support costs when
builders put Windows on systems. Not facing that cost could let a
lower price yield unexpected returns.
Annoyance, too, is a reason Microsoft has unremarkable prices.
In software development ``the-state-of-the-art'' produces
good programs which seldom run as well as common, everyday devices.
The science, or art, of software is young so somewhat less
reliability is reasonable. That means to sell many units a year
prices cannot be maximized to the same extent, for example, as can
prices for ad space in the sole newspaper for given area. Annoyances
is even the name of a popular Web site http://www.annoyances.org for
dealing with Windows so what have been moderate prices were a trade-
off to keep buyers. Of Windows 98 a prominent writer said one reason
to spend the $90 is that 98 crashed less than Windows 95 http://
content.techweb.com/winmag/library/1998/0701/ana0001.htm
4. Bundling is a pivotal matter here making understanding it
important. Bundling is common to enhance the value of new kinds of
products, movie rentals included with VCR purchases when that
product was new to spur customer interest, a process now happening
with DVD players, are fine examples of the more frequent kind of
bundling. When Personal Computers first became fast enough to
display usable graphics on monitors writers of programs to do charts
and graphs arranged to have makers of the new, fast graphic boards
for systems bundle those programs with new boards to increase sales
of both products! All temporary arrangements to boast new product
recognition.
Similar to this Operating System and browser packaging,
``AWeb-II 3.4 Packaged with Amiga OS3.9'' http://
browserwatch.internet.com/news/story/news-20001229-;1.html
Amiga is a neat, niche computer and Operating System with some loyal
supporters. Bundled with Amiga OS3.9 is the AWeb browser for buyers
to try out as v3.4SE Special Edition has some features disabled so
if folks wish to keep using it they need to buy a full version.
Limited versions let prospective buyers try a product without
damaging potential sales. Notable these test versions can be removed
from systems if customers so wish. Probably the instances of
Operating System and browser bundling presented at the original
District Court hearing allowed the browser to be removed from the
Operating System, as well. What Microsoft did in binding Internet
Explorer to Windows was atypical since other programs can always be
removed. Apple Computer could not create and tie the two products
together, for instance, being under contract to Microsoft for its
MacOS Internet Explorer to be the default browser on Apple systems.
That the Internet Explorer experience can be duplicated on
Apple's MacOS without placing that Microsoft browser in the Apple
Operating System shows the browser is a product category, not
Operating System plumbing like memory-management that wholly depends
CPU and Operating System interaction. That the product category
exists is illustrated by its functions. Unlike most computer
programs a browser is meant to show on a local system information
that is formatted into Web pages on remote computers. A browser
would quickly become boring without a connection to the Web to
provide fresh and new information. A browser is part newspaper,
radio, and TV for computers that only really shines because of its
outside connection while other programs deal what they create.
Separating the browser from other software is that it does not
create what it displays. Even most computer games create files to
allow games to be resumed at a later time.
Demonstrating a possible market for browser is difficult because
once a firm with market power uses its builder distribution network
to distribute its browser with no regard to cost by not charging for
it buying a second browser seems odd. NetMechanic http://
www.netmechanic.com though, is a firm in business to make Web sites
work in a variety of browsers, and different types of computers,
demonstrating not everyone prefers the Web as presented by Windows
through Internet Explorer. Tastes do change. One noted computer
commentator recently wrote (20 Dec 2001) he now uses Opera's style
of having a number of Web pages open within the browser's one window
(called MDI), instead of one program for each Web pages as Internet
Explorer does producing a ``blizzard'' of separate
programs http://www.scotfinnie.com/newsletter/18.htm.
If the playing field was more level, with no firm having market
power using its very special access to computer distribution, there
is reason to think buyers would seek browsers that suited their
individual preference instead of just happening to use what ships
with the computer. Equally important is that other types of
computers do access the Web so a proprietary specification of how to
interact with browsers is anticompetitive since it favors one type
of computer. Microsoft's main focus is the Personal Computer, making
it less interested
[[Page 28153]]
in the advancement of other computers to protect its principal area
of business. That is natural for Microsoft to do, yet it is bad for
customers as possible choice for computers will not have the options
as the kind Microsoft caters to. An example is on http://
www5.zdnet.com/zdnn/stories/comment/0,5859,5101802,00.html noting
that Microsoft's PDA named the Pocket PC does not support Apple's
Mac computers. Not a big item, yet it is another way to make Windows
look better. Microsoft is so fiercely competitive it should not be
left to handle a cross-platform standard better formulated by an
industrial association.
(I must now apologize to the Court as time is now very short to
finish the filing and I still type slowly so I need to work in point
form, I hope you will excuse me.)
These 4 columns note that open standards greatly reduce costs
for buyer and much improve the number and quality of available
choices. ``Standards can put you in control''
http://techupdate.zdnet.com/techupdate/stories/main/
0,14179,2837626,00.html
Open Standards Vital, PC's Founding Fathers Say''
http://www.extremetech.com/article/
0,3396,s%253D201%2526a%253D11568,00.asp,
``Why we should hail IBM's ode to open source--;the
Purple Book''
http://zdnet.com.com/2100-;1107-;503981.html and
``Group builds onto wall of Web standards'' http://
news.com.com/2100-;1023-;802022.html. The W3C stands for
Web open standards with interoperability between all software,
Microsoft should be urged its lead.
5. The most effective remedy to administer with most ease is
that Microsoft only sell Windows with the basic plumbing to run
computers for the 1st 30 months of a judgment. That will be called
disruptive, yet it is the best way to remind everyone Windows is the
means to let many companies run programs on Personal Computers, not
just Microsoft, and not as 2nd class players. If that is not done
Microsoft will have decreasing reason to accommodate other firms on
Windows as those firms will not much add to Windows''
popularity. Plus that will encourage Microsoft to have enough
Windows'' APIs so any browser runs all browser functions in
Windows instead of the APIs being limited to Internet Explorer.
During that 30 months programs now in Windows will sell at
prices as determined from sources like the Web. After 30 months such
programs and basic Windows most stay available for 10 years. And
Microsoft may then sell 2 other Windows versions with prices
reflecting having some extra programs in 1 version, and all extra
programs in the 2nd version; as well as direct Microsoft support
being of 1 contact for setup (only good if used in 1st 35 days after
buying) that may go on for a time after the contact began, and a 2nd
6 months starting from a later contact within 15 months of system
purchase. Simple reason for Microsoft support is that it be
responsible for any full programs put in with Windows, that is only
creating a consequence for Microsoft's action which is fundamental
to a well running market economy.
5a. Judgment needs to last a long time so market can develop
products and just get use to being fully open (so participants in
markets related to Personal Computers have no reason to act in
anticipation of its end).
Allowing time for those notions to be entrenched so OEMs will
react strongly to unusual demands instead of merely accepting them
so Microsoft regains its position.
That is a big concern given Microsoft's habit is to disparage
what other firms make, ``Novell sues Microsoft over ad
campaign'' http://news.com.com/
2100-;1001-;273775.html while a later review found the
Novell progressing quite well, 17 Dec 2001 ``Not Just Another
NOS--;NetWare 6 includes impressive Web tools, file and print
services''
http://www.eweek.com/article/
0,3658,s%253D708%2526a%253D20078,00.asp.
Unfortunately such ads and the blocking of 3rd party browsers
from some Microsoft Web sites occurred while Microsoft negotiated
this Proposed judgment suggesting Microsoft may not be serious about
this process. It was soon seen that the browsers dealt well with the
Microsoft sites, ``MSN.com shuts out non-Microsoft
browsers''
http://news.com.com/2100-;1023-;274944.html,
``Parts of MSN Still Off-Limits to Amaya, Opera Users''
http://browserwatch.internet.com/news/stories2001/news-
20011101-;1.html,
``Microsoft backpedals on MSN browser block''
http://news.com.com/2100-;1023-;274980.html. Perhaps 1
remedy could have Microsoft mostly deal in the benefits of its own
products in ads and not supposed flaws in what other firms produce,
generally leaving buyers to decide what suits them best.
5b. To give independent developers the opportunity to write a
browser based on its code, Netscape Communications made its source
code available through http://www.Mozilla.org. As a result the
specification for Netscape style ``plug-ins,'' which add
functions as helpers to browsers, is now commonly known. This
specification allows any company developing a browser to run
``plug-ins'' in its browser application.
Because Microsoft now has such a wide lead in browser usage, its
support of ``plug-ins'' in all its browsers is critical to
such helpers being created both in ActiveX and ``plug-in''
style. To give market forces the chance to establish a market for
browsers, Microsoft shall include ``plug-in'' support in
all its browser for 12 years. That period will begin on the first
day of the first month after Microsoft demonstrates restored
internal ``plug-in'' support in all current (or future)
browsers from by Microsoft, its subsidiaries or successors. Menu and
other means that exist to modify program options in Windows could
turn off ``plug-in'' support. If it becomes apparent
``plug-ins'' fall out of common usage Microsoft may be
allowed to end its support early.
A 12-year time period is necessary since many Web sites are
built to mainly support Internet Explorer and many Web designers
will require time to become accustomed to using an open standard
(likely from http://www.w3.org). Customers will also need to adapt
and choose a Web browser that best meets their usage requirements,
the usual way of choosing products. And the 12-year period
approximately doubles the time Microsoft hindered usual market
forces through special distribution requirements. Thus, 12 years is
reasonable recompense to that market.
Restored Microsoft ``plug-in'' support (dropped in
August 2001 http://news.cnet.com/news/
0-;1005-;200-;6881773.html) is a fine part of a
remedy as it reinvigorates the browser market without steering it in
any direction. Requiring Microsoft to publish its source code for
Internet Explorer would merely develop copies with strengths and
weaknesses similar to the original. Leaving them dependent on
Microsoft for core code development, not creating an open market.
Browsers do not relate to the booting of computers so showing source
code is currently unneeded. So long as a browser is not commingled
in the Operating System it is just another program making for easy
substitution. Both ActiveX and ``plug-ins'' have strengths
and drawbacks with no clear winner. ActiveX deeply ties into
Windows, which is troubling if security breaks down. Meanwhile,
Microsoft has doubts about ``plug-ins.'' Such issues are
exactly the type best left to customer choice.
More importantly, ensured ``plug-in'' support only
produces a level playing field since all browsers have good access
to helper programs leaving it to market forces to determine what
browsers succeed. This point is forward looking as it leaves the
market open with minimal or no market distortion making it very much
in the public interest.
6. Varied point2: Using ActiveX on the Windows Update site does
not exclude people from general access to the Web as the Court of
Appeals ruled. The anticompetitive element is that only Microsoft
knows how to have browsers run ActiveX meaning that users must
maintain Internet Explorer to be- able to reach the Update site
which is a crucial, must reach site for anyone running a Windows
Operating System! Above this filing shows it is a long and somewhat
difficult process to keep Internet Explorer current and secure. Also
the Court of Appeals ruling (page 30-;1) says Microsoft twice
acknowledged two browser icons can be confusing. Running two
browsers would be confusing as well, the easiest course for most
people is to only run Internet Explorer. It thus has a very distinct
advantage over other browsers. Yet Microsoft must ensure the
integrity of its products so of course it may have Windows invoke a
single purpose client that would check and service only Microsoft
software. Such a client would have limited, specialized usage likely
only for connecting to Microsoft servers, it will not be anti-
competitive because it will not effect perceptions of programs from
other vendors. That differs from the present wording of Section
III.H.3.1 and its preamble which gives Microsoft programs special
rights users could see as making it better than similar products
from other vendors.
6a. Relating to Microsoft Passport: If Microsoft wants customers
to create a basic account (using an existing e-mail address)
[[Page 28154]]
before providing product assistance that account should only be for
dealing with Microsoft, and not for dealing with other firms over
the Web. Privacy and security concerns of individuals deem that each
person be able to make their own decision on whether to create an
account to deal with Microsoft alone or a process for giving out
information to third parties. Having 2 kinds of accounts means
Microsoft will not be able to unduly leverage the Operating System
monopoly into the de facto identification and information dispersal
process for the Web. That will also much decrease the possibility
that newcomers to PCs would erroneously think only Microsoft
provides software for this class of computers. A central repository
for all personal information will be probably a target for thieves
trying to steal credit card number to commit fraud and perhaps where
malevolent forces will go for personal information in efforts to
build false identities. Signing in to a creation like Microsoft
Passport is not something to be done while people are trying to
setup another product. It must be considered on its own drawbacks or
merits, and then perhaps entered into.
Thank you for this opportunity.
Sincerely,
Bryan Campbell
MTC-00027872
From: Bradley G Leonard
To: Microsoft ATR
Date: 1/28/02 11:44am
Subject: Microsoft Settlement
I, Bradley G. Leonard, am a U.S. citizen who disagrees with the
proposed settlement. It is a bad idea.
MTC-00027873
From: Garrett Williams
To: Microsoft ATR
Date: 1/28/02 11:40am
Subject: Microsoft Settlement
To whom it may concern,
I strongly encourage a fair and appropriate settlement
concerning Microsoft and their anti-trust violations. The company in
question has abused it's position and created an unfair market place
to which they are the dominate player. In order to right this
situation the government must truly punish Microsoft for their
unethical behavior. This means creating opportunities for other
companies that have suffered at the expense of Microsoft's business
practices. Proposals such as the education solution only increases
Microsoft's market share and shows that the current presidential
administration is oblivious to the current problem. Microsoft is a
monopoly and that is definitely not beneficial to the economy. In
order to increase competition steps must be taken to thoroughly
punish Microsoft and give businesses such as Apple Computer, Java,
and a host of others a fair chance.
Thank you,
garrett williams
MTC-00027874
From: Violet L Hubbard
To: Microsoft ATR
Date: 1/28/02 11:44am
Subject: microsoft setlement
AS A SENIOR CITIZEN, I FEEL THAT THE SETTLEMENT IS AS FAIR AS
POSSIBLE. WE CONSUMERS NEED TO WIN ONE EVERY NOW AND THEN.
W.H. HUBBARD,
7700-;1 S. ARAGON BLVD.
SUNRISE, FL. 33322
MTC-0027875
From: Rick Spiewak
To: Microsoft Settlement U.S. Department of Justice
Date: 1/28/02 11:39am
Subject: Microsoft Settlement
Rick Spiewak
37 Berkeley Rd.
Framingham, ma 01701
January 28, 2002
Microsoft Settlement U.S. Department of Justice ,
Dear Microsoft Settlement U.S. Department of Justice:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is time for this trial, and the wasteful
spending accompanying it, to be over so that companies like
Microsoft can get back into the business of innovating and creating
better products for consumers, and not wasting valuable resources on
litigation.
Thank you for this opportunity to share my views.
Sincerely,
Rick Spiewak
MTC-00027876
From: Gary Hill
To: Microsoft ATR
Date: 1/28/02 11:45am
Subject: Microsoft Settlement Support
Gary G. Hill
44024 Countryside Drive ? Lancaster, CA 93536
January 26, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As an elected member of the Antelope Valley Health Care District
representing 450,000 people, I am writing this letter as in support
of the settlement in the case against Microsoft. I believe that this
whole suit was a waste of time and money. Only in America do we
focus on tearing down success, and destroying a product line the
works. There are choices out there, but none of them work as well as
the Microsoft products.
There are more pressing issues that are of concern to me in this
country such as the energy crisis here in California. The state has
lost $22 billion dollars resulting in consumers getting gauged. In
addition, the price of gas has risen 20 cents per gallon, just in
the last week. The Department of Justice should have taken a strong
NO to the rash of oil company mergers this past decade; we can live
without a home computer, but must have gasoline (real public transit
has not arrived yet)
Microsoft did not get off as easy, as its opponents would have
people think. They agreed to terms beyond what was required in the
suit. They also agreed to design future versions of Windows,
starting with an interim release of XP, to provide a mechanism to
make it easy for computer companies, consumers and software
developers to promote non-Microsoft software within Windows.
Microsoft seemed to be generous when settling the case. Let's end
litigation now so that Microsoft can go back to work. We, the
American people, need a company like Microsoft to stay strong, so
they can continue to create innovative products, well paying jobs,
and help strengthen the tech sector of the economy.
Sincerely,
Gary G. Hill
(661) 723-;6035
(661) 723-;6180--;Fax
[email protected]
Gary G. Hill
Director of Finance
City of Lancaster
Lancaster Redevelopment Agency
44933 No. Fern Avenue
Lancaster, CA 93534
(661) 723-;6035
(661) 723-;6180--;Fax
[email protected]
MTC-00027877
From: Bill Baker
To: Microsoft ATR
Date: 1/28/02 11:46am
Subject: Microsoft settlement
Please settle this suit now and let Microsoft get on with its
business.
Thank you,
Bill Baker
2051 Morningside Drive
Mount Dora, Florida 32757
MTC-00027878
From: Don Campbell
To: Microsoft ATR
Date: 1/28/02 11:47am
Subject: Microsoft Settlement
The current settlement of the Microsoft case is a travesty.
Since becoming a monopoly, Microsoft has almost continuously ignored
antitrust law against anticompetitive behavior. When caught and
tried, they deny the obvious. After agreeing to cease the
anticompetitive behavior they carry on as before.
They have shown negligible effort at compliance and continue to
operate against consumer interest and consumer choice. If anything,
they have extended this approach beyond their traditional software
market into other markets of Internet and media commerce.
I do not think that a remedy which falls short of structurally
modifying the company will work. Microsoft will go on as usual and
destroy more companies. In so doing they will continue to chant the
false mantra that they are ``innovating'' and being
punished for that. They should be broken up, Windows code should be
opened up to the competition and they should not be allowed to
leverage their current monopoly into new ones.
Don Campbell
MTC-00027879
From: Tom Skinner
To: Microsoft ATR
Date: 1/28/02 11:47am
Subject: Microsoft Settlement
January 27, 2002
Attorney General John Ashcroft
[[Page 28155]]
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The antitrust suit against Microsoft has been settled. This
agreement was arrived at after extensive negotiations with a court-
appointed mediator. The whole process took three years, which I
believe is long enough, if not too long. This settlement has
profound implications for all software publishers, the rest of the
IT industry, and consumers.
New government regulations will be imposed on the IT sector. The
proposed agreement requires major changes in how Microsoft develops
and markets its products, while allowing competitors the possibility
of suing the company if it does not comply with these new rules. The
settlement is in the best interests of the state, the economy and
our nation as a whole.
The recession has had a devastating effect on budgets at both
the state and federal levels. It is important to allow the IT
industry the ability to concentrate solely on its business at hand.
The original agreement reached by the Justice Department is
beneficial to the industry and the economy at this point. The
settlement needs to be agreed upon by all members of the federal
government, permitting us to continue being a leader in the
technological market at home and around the world.
Sincerely,
Tom Skinner
6186 Mountain Vine Avenue
Kannapolis, NC 28081
CC:[email protected]@
inetgw
MTC-00027880
From: vv.mann (a) home
To: Microsoft ATR
Date: 1/28/02 11:50am
Subject: Microsoft settlement
VIRGINIA V. MANN
3004 Normandy Place
Evanston, Illinois 60201
January 25, 2002
Renata B. Hesse
Anti-trust Division
US Department of Justice
601 D Street, NW
Washington, DC 20530
Dear Ms. Hesse:
I was pleased to hear that the Department of Justice had settled
its ridiculous suit against Microsoft.
Clearly, this lawsuit was politically driven and using our
government and our laws in this fashion was unfortunate from the
beginning. I am relieved to see this dispute resolved, although
believe it should never have been brought in the first place.
Although Microsoft has agreed to the restrictions in this
settlement, I believe it is unfortunate that our government has
chosen to do anything less than completely dropping the case.
Microsoft has done more to improve our efficient and effective
communications than has any other company in history.
They should be left alone to continue their fine work without
further interference from our government. Sincerely,
MTC-0027881
From: VanderPyle, Nicholas
To: Microsoft ATR
Date: 1/28/02 11:51am
Subject: Microsoft Settlement
Whomever it may concern,
My JOB is dependant on the hard work Microsoft has done to
create products, support, and certifications!
I depend on being able to go home to a computer that is similar
to the one I use at work, being able to keep all my tasks and
appointments with me on the road in my handheld computer, and using
the internet in an easy and efficient method. Microsoft has jumped
through hoops to make sure I can do all of that without learning
several new operating systems, buying several browsers, and having
compatibility problems with my handheld computer.
Consider a world where your missile defenses are running on a
LINUX computer whose core operating software is partially written by
a 12year old in Russia... and it has a fatal bug! You can't exactly
goto a single company and demand a fix overnight like you can
Microsoft.
Don't make a mistake by hurting the one company that has driven
innovation as well as created and supported hundreds of thousands of
jobs WORLDWIDE.
Thank you for your time.
Nicholas VanderPyle
Boeing
Fort Walton Beach, FL
(850)302-;4553
Please update your contact lists to reflect this email address!
Do NOT use HSV.Boeing.com
CC:Microsoft's Freedom To Innovate Network
MTC-00027882
From: Peter Hill
To: Microsoft ATR
Date: 1/28/02 11:51am
Subject: Dear Judge,
Dear Judge,
As a young person, I would like to see growing oppurtunities in
computer choices in my future. Microsoft is a wonderful company
staffed by wonderful people, but they are guilty of anti-competitive
violations. They should be punished according to US laws. If this is
accomplished, it will provide a better and more competive market for
me to enter.
Thank you,
Peter Hill
66 Hobson St.
Boston, MA
MTC-00027883
From: Jane Quirk
To: Microsoft ATR
Date: 1/28/02 11:51am
Subject: Microsoft settlement
Dear Attorney General Ashcroft:
It seems to me that the Microsoft antitrust suit has gone on
long enough and has been subject to some questionable decisions.
Microsoft has been a leader in its field and that always brings a
certain amount of envy. The settlement agreement seems to be fair
and I feel Microsoft has agreed to put some checks and balances in
place to avoid the possibility of conflict in the future.
I am in favor of the terms of the settlement and hope you will
consider an end to this expensive litigation and allow all parties
to move on.
Thank you,
Jane Quirk
MTC-00027884
From: Caghan, Susan
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:51am Subject: Microsoft Settlement
http://www.primepro.com
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I believe that the antitrust suit against Microsoft has been
detrimental both to the economy and to the IT community. This suit
was an attempt by Microsoft competitors to use the legal system to
manipulate a market for their own gain. It is time to let us in the
technology industries get back to the work; to do our part in moving
our economy forward.
The antitrust suit has had a negative, trickle-down consequence,
that if not stopped, will lead to spiraling business downturns both
of companies that partner with Microsoft as well businesses that use
Microsoft products. The settlement guidelines are tough and
rigorous. It is time to finalize the settlement and let us get back
to the work of revitalizing the economy and the IT industry.
I urge that all action taking place at the federal level be
stopped. Microsoft must be allowed to return to innovation.
Sincerely,
Susan Caghan
President
MTC-0027885
From: Marmelstein Robert E LtCol AFRL/IFSE
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:52am
Subject: Re'' Microsoft Settlement
See atch.
Robert E. Marmelstein
Robert Marmelstein
67 Whitford Ave.
Whitesboro, NY 13492
January 25, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I have been following this case, and don't believe litigation
was necessary at all. The computer industry is very competitive. I
believe the competition pursued litigation in order to distract
Microsoft and level the ``playing field''. Now that
several more states and companies want to pursue further litigation,
what are they trying to accomplish?
Microsoft has been more than fair in settling this case. They
agreed to license its operating system to the twenty largest
computer companies for identical conditions and prices. They also
agreed to design all
[[Page 28156]]
future versions of Windows, to provide a mechanism to make it easier
for computer companies, consumers and software developers to promote
non-Microsoft software within Windows.
Let's end the distraction and go back to business. Microsoft can
go back to reviving its company and the technical sector. Government
can work on bringing us out of this recession.
Sincerely,
Robert Marmelstein
MTC-00027887
From: RandyRotter (MSN)
To: Microsoft ATR
Date: 1/28/02 11:53am
Subject: Microsoft Settlement
This whole jihad against Microsoft by varied government
officials at the behest of Microsoft's competitors has been ill
advised, corrupt and unproductive. It has harmed the company, harmed
our international leadership in technology, harmed how young people
view a career in technology, harmed the consumer with legal fees
added to product cost, and introduced the attempt to have technical
elegance determined by states'' attorney generals.
Do not let the zealots and the cynics determine the fate of
Microsoft's ability to delivery complex solutions. Look at the
strides being made in China with wireless and you will see what can
happen quickly if we weaken our own ability to provide large scale
solutions. I am old enough to have learned to drive in a beautiful
1960 Buick convertible. Within a few years I watched the automobile
industry's abilty to product a decent car greatly decline relative
to our competitors and saw the takeover of our main industrial
hallmark by foriegn companies. We have had to wait for Microsoft to
create an American world competitive flagship company to again
provide the ability to command domestic and world markets.
Because this case is about the fragility of intellectual
property, the old rules do not always apply and should not be
allowed to push an American success story into mediocrity.
Randall Rotter
9013 Nisqually Way NE
Bainbridge Island, WA 98110
(206) 855-;9625
MTC-00027888
From: Edward Goodrich
To: Microsoft ATR
Date: 1/28/02 11:52am
Subject: Microft Settelment
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I understand that the Department of Justice is presently
accepting public comment on its agreement with Microsoft to settle
the antitrust litigation. I wholeheartedly support the agreement.
Microsoft was just being punished by the last administration for its
success, and that's not fair. Microsoft's competitors complained
that they were frozen out of competition by Microsoft's licensing
and pricing practices as well as by their inability to offer
competing software within the Windows system.
Microsoft has agreed to uniform pricing guidelines as well as
less restrictive licensing agreements with distributors. Microsoft
has also agreed to open its operating systems to competing software
applications.
I believe that Microsoft's actions more than adequately answer
the complaints, and Microsoft should be allowed to get back to
business. Please implement the settlement as soon as the law allows.
Thank you for your consideration and attention.
Sincerely,
Edward Goodrich
MTC-00027889
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:50am
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Ken Lindsay
6272 209th. rd.
Live Oak,, FL 32060
MTC-00027890
From: Doug Grinbergs
To: Microsoft ATR
Date: 1/28/02 11:53am
Subject: Microsoft Settlement
With respect to the proposed Microsoft settlement, I would like
to offer these brief comments:
To the great disadvantage of its customers, as well as users and
manufacturers of competing systems, I believe that it would
effectively leave the monopoly intact; well-funded, highly-paid,
highly-motivated Microsoft lawyers will easily avoid the vague
settlement rules and the giant will continue largely unchecked.
Public meetings are essential to a democratic process and there
should be public hearings nationwide to afford citizens the
opportunity to speak out on this important matter.
Doug Grinbergs
[email protected]
PO Box 17455
Boulder, CO 80308 USA
MTC-00027891
From: Mitch Stone
To: Microsoft ATR
Date: 1/28/02 11:55am
Subject: Microsoft Settlement
I wish to register my strenuous objections to the proposed
settlement to the Microsoft Antitrust case.
Of all the provisions which I find most objectionable are those
related to so-called ``middleware.'' The proposed
settlement provides Microsoft with more control over software to be
included with Windows then they have today. If the settlement is
approved, they will be permitted to discriminate in ways which
before the settlement would almost certainly generate antitrust
scrutiny. This proposed settlement does not open the door to
middleware development, it slams it shut.
This settlement does not promote competition; it
institutionalizes the Microsoft monopoly. To approve it would not be
in the public interest.
Mitch Stone
[email protected]
MTC-00027892
From: Thomas Hahn
To: Microsoft ATR
Date: 1/28/02 11:55am
Subject: Microsoft Settlement
Gentlemen:
I would like to add my voice to those who feel that this is a
just settlement and should go forward without further delay. Thanks.
Thomas Hahn
MTC-00027893
From: Bob Frazier
To: Microsoft ATR
Date: 1/28/02 11:55am
Subject: Microsoft / AOL Settlement
Sir;
I am completely in agreement with the DoJ settlement worked out
between Microsoft and AOL. It satisfies the ruling of the Court of
Appeals and represents the best opportunity for this industry to
move ahead.
Sincerely,
Robert D. Frazier
19 Applewood Lane
Temple, NH 03084
MTC-00027894
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:55am
Subject: Microsoft Settlement
Dear Sir/Madam:
I just wanted to comment on the Microsoft matter with respect to
``pending'' matters in the courts. I feel as a consumer
that Microsoft has been a strong American company and has helped to
``standardize'' the disparate software in the PC industry
over the last 10 years. Competitors such as AOL (who BTW appear one
again to be against ``standardization'' ) are not happy
with a ``large systems integrator'' concept, which by
default in the software industry goes to the Most Aggressive Company
..in this case Microsoft. Most Microsoft products I purchase are
``fairly priced''. In fact SUN's compilers and tools were
once ``way more expensive'' than Microsoft products, but
thanks to the ``Microsoft Trial'' their SUN product line
``price'' has improved ``considerably'' for
consumers. Microsofts'' has always been in the $100-;500
range...I was mystified as to why ``consumers were
[[Page 28157]]
hurt'' as SUN claimed. (they were probably jealous of volume)
However aggressive Microsoft has been, it HAS helped to achieve
standardization, which the PC industry needed to ``get off the
ground'' and bring ``mass market'' consumer awareness
to many things, PC desktop, Common Operating Environment, Office
tools, etc all of which operate ``together'' with a
forward vision that DOES include many growth opportunities for
smaller competitors. I know of many small vendors who
``need'' standardization that Microsoft provides as a
``defacto large systems integrator'' for consumers. AOL,
who makes only a Browser (purchased for $10B from Netscape) and its
AOL instant messenger are only TWO products. This is not enough to
``standardize an industry'' and consumers like myself (who
are also software developers) are aware of this and keep Microsoft
in the ``lead role'' by spending our consumer dollars for
``better integration''...what in fact comsumers vote for
with their $$$.
When AOL makes products that ``hit all bases'' as far
as ``developers need'' I'll buy more AOL products...right
now they have a limited product line...who's fault is that????? If
$10Billion were spent in the right place it may not have happen as
it did.
If they (AOL) want to be a ``large systems
integrator'' in ``consumers minds'' they they should
compete by trying to ``bring together'' lots of smaller
companies as Microsoft has done well as a platform and help
consumers ``see this'' instead of just complaining and
trying to do this ``via other means''...thinking the
browser is the ``only thing'' that consumers
``see'' ...in fact alot more goes on in terms of data,
binaries and libraries that make an ``integrated product''
which microsoft has been far ``better at doing'' than AOL
and their ``vision''. end of comments.
+vfg
Vince F. Golubic
Software Developer & Consumer
Allen, Texas
CC:[email protected]@in
etgw
MTC-00027895
From: James E. Strang
To: Microsoft ATR
Date: 1/28/02 11:58am
Subject: Letter
Please see attached letter regarding Microsoft.
James E. Strang
Campbell Company
(p): (206)763-;5000
(f): (206) 763-;6700
e-mail: [email protected]
CC:
[email protected]@
inetgw
575 S Michigan Street
Seattle, WA 98108
January 27, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing in full support of the recent settlement between
Microsoft and the US Department of Justice. It is time that this
foolishness comes to a prompt end. More than enough time has been
used to cover all of the bases and I feel that it is just a
political standoff at this point.
The terms of the settlement make apparent to me the intense
lobbying efforts of Microsoft's competition as they will be granted
new rights to configure Windows so that non-Microsoft products can
be promoted more easily and also be given interfaces that are
internal to Windows'' operating system products.
Even though these concessions do not actually protect consumers
and just help Microsoft's competitors that were unable to be
innovative on their own, I urge your office to finalize the
settlement. It is in the best interests of our economy, IT sector,
and public for the case to end and our country to move on. Thank
you.
Sincerely,
John Odonnell
MTC-00027896
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:56am
Subject: MicroSoft Settlement
Date: Mon, 28 Jan 2002, 09:55
Sirs:
Regarding the MicroSoft Settlement ``Proposed Final
Judgment'', I am in extreme opposition.
I am in complete agreement with the amendments proposed by Dan
Kegel (ref: www.kegel.com/remedy) in his essay to be submitted to
the DOJ, entitled ``On the Proposed Final Judgement in the
United States vs Microsoft''.
It has been my professional observation over the last 20 years
that Microsoft provided useful innovative products SOLELY when there
was string and significant competition.
It is my strong belief that should the PFJ be approved, the
result will be an extraordinary loss of innovation in commercially
available software within the United States; a significant erosion
of respect for the US laws and regulations thus established, mainly
among commercial and independent software developers in other
nations less tolerant of large corporate monopolies; and a
significant increase in litigation in the Federal courts to
challenge the consequences of the PFJ.
NB: this note represents ONLY my PERSONAL OPINION, and should
not be construed as representing any official position of Storage
Technology Corporation.
Jeff Hayas
Senior SW Engineer, Storage Technology Corporation
Email: jeff--;[email protected]
Phone: 303-;661-;8691 (w), 303-;938-;8933
(h)
Postal: POB 1378; Boulder CO 80306-;1378
Proverb: ``Be well, stay in touch, and do good work.''
MTP-;00027897
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 11:53am
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Curtis Stauffer
1600 Univ. Dr. E.
College Station, TX 77840
MTC-00027898
From: Anthony, Kelly K.
To: Microsoft ATR
Date: 1/28/02 11:57am
Subject: Microsoft Settlement
Dear Ms. Hesse:
I am wriing in support of the proposed settlement agreement with
Microsoft that would provide technology funds, computers and
software to schools in low-income communities.
Wisconsin schools would benefit from the technology funds. Our
state falls below the national average in the percentage of fourth
through eighth grade students in schools that have computers
available in all classrooms. As a future teacher, I am learning
about teh benefits of technology in the classroom.
However, many schools do not have the funds or equipment to give
the students these experiences. I think teachers and students should
be given the opportunities technolgy can give.
Computers are important educational tools in schools. No student
or teacher should be denied this opportunity. THe proposed
Settlement is very positive and would benefit students, teachers,
schools, and communities that need the technology funding most.
Thank you.
Sincerely,
Kelly Anthony
MTC-00027899
From: Steve Anderson
To: Microsoft ATR
Date: 1/28/02 11:57am
Subject: The proposed settlement in the Microsoft antitrust case
does not go far enough
Dear Sirs,
The only way to level the playing field after the years of abuse
by Microsoft is to let the competition have access to the source
code.
Microsoft should be compelled to make available a license to any
interested party for the source code for all versions of Windows(R)
for a reasonable fee, perhaps $1,000,000.
Thank you.
Steve Anderson
Phone 480-;315-;8577
[[Page 28158]]
FAX 508-;300-;0337
[email protected]
www.eosgroup.com
MTC-00027900
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:59am
Subject: Microsoft settlement
205 Sweetwater Trace
Roswell, Georgia 30076
January 12, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you today to express my opinion in regards to the
Microsoft settlement. I feel this debate has gone on long enough,
and I feel after three years of litigation enough resources and time
have been wasted on this issue. It is time to focus our attention on
more pressing concerns facing us today.
I am a believer in free enterprise, and I do not think Microsoft
should be penalized for doing its job well. That is the goal of
every American worker. This settlement finally ends three years of
litigation and will allow Microsoft to continue designing and
marketing their innovative software, while no longer focusing on
litigation. This settlement was reached after extensive
negotiations, and Microsoft has agreed to terms that extend well
beyond the original terms of the lawsuit, just for the sake of
ending it. For example, Microsoft will now be required to share
information regarding the nature of the internal workings of its
Windows operating system, allowing them to place their programs on
it. Personally I consider this akin to charging the consumer for e-
mails because the post office is losing money...paying a competitor
because they aren't smart enough to compete.
During these difficult times, one of our highest priorities
should be to stimulate our businesses so as to strengthen our
lagging economy. Please support this settlement.
Sincerely,
Victoria Barkan
MTC-00027901
From: Gordon Slipko Sr.
To: Microsoft ATR
Date: 1/28/02 12:00pm
Subject: microsoft settlement
I as an american can not beleive that you keep harassing a
company that has changed America for the better. It hasn't hurt
anyone, but today in our justice system we allow everyone to sue
everyone. Its all about money money mnoey, 1st it was one lawsuit,
then another,now everyone wants to get in on the pie,because they
know microsoft has the money and until they get their hands on it
this will just keep continuing. LETS GET ON WITH OUR OTHER PROBLEMS
IN THE WORLD TODAY AND LEAVE MICROSOFT ALONE. ENOUGH IS ENOUGH.
THANK YOU ROSE MARIE SLIPKO thank u and please confirm this email,
have a nice day gordon
MTC-00027902
From: Les Dunaway
To: Microsoft ATR
Date: 1/28/02 12:00pm
Subject: Microsoft
I have been in the business since 1964. I saw the creation of
Microsoft and have seen their business practices over the years.
Microsoft exists only because of their dishonest and immoral
business practices. They have never produced even on product that
could have succeded in an open market.
Les Dunaway
MTC-00027903
From: jane wellens
To: Microsoft ATR
Date: 1/28/02 12:00pm
Subject: Microsoft Settlement
I am a shareholder of Msft stock and think this is time to put
an end to the trials and settle this at once so we can all get back
to business. This is very disruptive to the business climate that is
dealing with a whole new set of issues themselves since 9/11. Jane
WellensGet more from the Web. FREE MSN Explorer download : http://
explorer.msn.com
MTC-00027904
From: Alonzo Gariepy
To: Microsoft ATR
Date: 1/28/02 12:00pm
Subject: Microsoft Settlement
To Whom it May Concern:
Pursuant to the Tunney Act, I am writing to comment on the
proposed settlement of the United States vs. Microsoft antitrust
case. An important point to be made regarding the large amount of
comment that you have received regarding this case is that the many
points made must be taken very seriously, although some are not as
well presented in these emails as they might be with more time or by
other people. I doubt that any quick resolution to this case will do
justice to the many issues raised; the answers are not obvious and
the exact solutions are not necessarily ones that have been
considered by the DOJ up to this point.
Microsoft continues to roll over software companies by
incorporating into Windows features that have been developed by
other companies as their main product. One continually comes back to
this issue of what Microsoft should be allowed to make part of its
Windows product. What is needed is some philosophical (and
eventually legal) foundation for the consideration of this issue.
Despite work on such products as Wine (a linux Windows emulator)
Microsoft has a defacto monopoly. Ironically, the hardware involved
is one of the most diversely manufactured devices in history. One of
the reasons this continues to be so is that Microsoft puts a huge
amount of work into making sure that Windows will run on all the
different PCs that are manufactured with their huge diversity of
devices, and Microsoft includes a great number of drivers for all
these devices.
Regardless of whether one can ever forsee an alternative to
Windows, the problem is that every time Microsoft adds a feature to
Windows, that feature becomes part of its monopoly. The marginal
cost for the consumer is perceived as zero, and the originator of
the feature in some other company can no longer compete. A perhaps
too simple example is that the latest Windows OS supports ZIP files
as virtual folders, saving users from having to acquire another
piece of software to open ZIP files.
Many such pieces of software are free or shareware, but
shareware is a valid marketing model and its developers deserving of
protection as anyone else. The greatest example of this would
probably be Netscape.
Perhaps what is needed is some kind of patent protection. Once
someone else has made an add-on for Windows to perform a certain
task, Microsoft (and perhaps others) cannot add that feature to
Windows without paying some kind of royalty. Nothing else strikes me
as a reasonable long term solution to this problem. As an
experienced software developer, I don't generally believe in the
concept of patenting software, but in this particular case, it
appears an ideal solution.
Sincerely,
Alonzo Gariepy
(ex microsoft software developer)
[email protected]
MTC-00027905
From: Shu Jan Lin
To: Microsoft ATR
Date: 1/28/02 12:01pm
Subject: Microsoft Settlement
Shu-Jan Grace Lin
204 Christopher Lane
Ithaca, NY 14850-;1715
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to support the recent settlement between the US
Department of Justice and Microsoft. I think the lawsuit has gone on
for way too long now and is becoming a waste of taxpayer dollars.
The government interferes with free enterprise too much and should
start facilitating business instead of hindering it.
I care about what is fair for the public and I think that
although very harsh, the settlement is in the best interests of the
public. Microsoft will make some concessions that include disclosing
interfaces internal to Windows'' operating system products,
granting computer makers broad new rights to configure Windows, and
forming three-person team to monitor settlement compliance.
I hope that your office does what is best for the American
public, not what is best for politicians, lawmakers, or big business
that can't win in the market. Please make the right choice and
finalize this settlement. Thank you.
Sincerely,
MTC-00027906
From: Thomas Winzig
To: Microsoft ATR
Date: 1/28/02 12:02pm
Subject: Microsoft Settlement
The problem with the Microsoft settlement is that it leaves them
intact. If you want to really open up the computer industry to
newcomers, and punish Microsoft for their illegal activities, you
should break them up into five or more groups. An operating
[[Page 28159]]
system company; an applications company; an internet services
company; a hardware company; a gaming/entertainment company. If you
are not willing or able to do that, then consider the following:
FAIR OEM CONTRACTS
Force Microsoft's OEM licensing deals to be fair. They killed
Be, Inc. and many other companies that offer choices to consumers
with these OEM deals. Specifically, Be was unable to deliver it's
well-regarded OS via new PC's, because the OEM's would not (could
not) bundle it on their new PC's, due to Microsoft's contracts. Be
even offered to give their OS to OEM's for FREE to try and break
into the market. Only Hitachi risked the wrath of Microsoft, and
even then, they were not able to show the installation of BeOS to
the end-user (due to Microsoft's license restrictions).
Microsoft should be forced to come up with a fair contract for
an OEM which does not provide a BARRIER TO ENTRY for other OS
companies, and which is the same for all OEM's.
DISTRIBUTE (BUT NOT NECESSARILY ``OPEN'') WINDOWS
SOURCE CODE
Force Microsoft to sell their operating systems with the source
code. I'm not talking about Open Sourcing their OS--;just
provide the source code with the copy of Windows that was purchased.
The source code license would restrict distributing the source code,
but would NOT restrict developers and consumers from being able to
create applications that integrate with Windows just as well as
Microsoft's applications. It would also allow developers and
consumers to do things like: create patches to remove MSIE entirely;
find and fix bugs in security before Microsoft can, etc. But the
primary purpose is to allow third parties to be able to develop
competing applications that integrate well with Windows.
COMPLETELY DETAIL ALL MS OFFICE DOCUMENT FORMATS
Force Microsoft to release the full documentation and all
related source code for their Office document formats. Microsoft has
used the full force of its monopoly to get people hooked on Office
products. Now that Office has a monopoly on the production suite
market, the barrier to entry is maintained because new office suites
cannot adequately read/write the MS Office documents. If the full
documentation and source code for those document formats was
released (and required to be updated for each new version of these
formats), then third parties could provide read/write abilities in
their competing office suites, and consumers would have a choice. As
it is now, most people HAVE to use Office, because their friends and
co-workers do, and they must be able to share documents with them.
Thomas Winzig
8187 Sully Dr.
Orlando, FL 32818
407-;293-;7087
MTC-00027907
From: Mikal Mathisen
To: Microsoft ATR
Date: 1/28/02 12:04pm
Subject: Microsoft Settlement
11753 Sunrise Drive NE
Bainbridge Island, WA 98110-;4349
(206) 842-;5154
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing you today to express my opinion in regards to the
Microsoft settlement issue. I support Microsoft and I support the
settlement that was reached in November. I believe it will serve in
the best public interest to end this costly litigation battle.
This settlement is fair and reasonable. Microsoft has agreed to
all terms and conditions, including: disclosing information about
certain internal interfaces included in Windows and designing future
versions of Windows to make it easier to install non- Microsoft
software. A technical oversight committee has been created to
monitor Microsoft compliance.
During these difficult times, one of our highest priorities
should be to boost our lagging economy. Restricting Microsoft will
not accomplish this end. Please support this settlement so this
company can get back to the business of creating innovative
software, which will benefit all of us. Thank you for your time.
Sincerely,
Stephanie Mathisen
MTC-00027908
From: Chris
To: Microsoft ATR
Date: 1/28/02 12:03pm
Subject: Microsoft Settlement
It is apparent that Microsoft violated the law and the spirit of
the law regarding antitrust regulation. The Bush administration's
settlement proposal is totally INADEQUATE. It does not do enough to
eliminate Microsoft's monopoly and force changes in the software
market.
MTC-00027909
From: fred tenore
To: Microsoft ATR
Date: 1/28/02 12:04pm
Subject: Microsoft
I don't side with Microsft,they will do it again Now how is it
he came by windows. now how is it microsoft wound up in court, are
you goiung to let it happen again. So attack! repeat attack! Fred
Tenore
MTC-00027910
From: Charles Faulkner
To: Microsoft ATR
Date: 1/28/02 12:06pm
Subject: Microsoft Settlement
Charles Faulkner
647 Brookfield Avenue
Brookfield, MO 64628-;1206
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
In this era of bad economic times, the news of a proposed
settlement between the federal government and Microsoft was most
welcome. I just hope that the settlement is not unfairly torpedoed
during the public comment period.
This settlement was not proposed by Microsoft merely as a way of
extracting itself from this litigation. The settlement contains a
number of substantial changes in Microsoft's business practices and
the proposal has met the preliminary approval of a court- appointed
settlement mediator. The most significant concession in my opinion
is Microsoft's agreement to grant broad new rights to computer
makers to configure Windows operating systems so as to promote
competition from non- Microsoft software programs. Both competitors
and consumers should applaud these moves.
Please don't allow all of the hard work put in reaching this
settlement to have been a waste of time. Thank you for your
consideration.
Sincerely,
Charles Faulkner
MTC-00027911
From: Decker F Wong-Godfrey
To: Microsoft ATR
Date: 1/28/02 12:01pm
Subject: Microsoft Settlement
Dear Sir or Madame,
I am writing as a concerned citizen about the proposed
settlement with Microsoft. As a professional in the industry, and as
a general computer user, I do not believe that the proposed
settlement is in the public interest for a number of reasons. These
are a few:
* The PFJ doesn't take into account Windows-compatible competing
operating systems
* Microsoft increases the Applications Barrier to Entry by using
restrictive license terms and intentional incompatibilities. Yet the
PFJ fails to prohibit this, and even contributes to this part of the
Applications Barrier to Entry.
* The PFJ Contains Misleading and Overly Narrow Definitions and
Provisions
* The PFJ supposedly makes Microsoft publish its secret APIs,
but it defines ``API'' so narrowly that many important
APIs are not covered.
* Microsoft currently uses restrictive licensing terms to keep
Windows apps from running on competing operating systems.
* Microsoft has in the past inserted intentional
incompatibilities in its applications to keep them from running on
competing operating systems.
* The PFJ allows Microsoft to retaliate against any OEM that
ships Personal Computers containing a competing Operating System but
no Microsoft operating system.
* The PFJ allows Microsoft to discriminate against small
OEMs--; including regional ``white box'' OEMs which
are historically the most willing to install competing operating
systems--;who ship competing software.
* The PFJ as currently written appears to lack an effective
enforcement mechanism.
Thank you,
Decker F. Wong-Godfrey
1006 S 312th St #233
Federal Way, WA 98003
MTC-00027912
From: Simon Lewis
To: Microsoft ATR
[[Page 28160]]
Date: 1/28/02 12:05pm
Subject: Settlement Comment
I do not agree to the terms of the pending settlement. I believe
in the market place and competition, by requiring Microsoft to
release all of its API's. That way, companies can innovate new
products because they will know how to make them work on the
monopoly platform, rather than having to ask Microsoft's permission.
No-one owns the English language, and no company should be allowed
by *unlawful* conduct) to build a monopoly on what is essentially a
computer language.
MTC-00027913
From: William Trueman
To: Microsoft ATR
Date: 1/28/02 12:07pm
Subject: Microsoft Settlement
I wanted to comment on the microsoft settlement that has been
reached. Microsoft needs to be punished more that this settlement
proposes for its anticompetitive, anti-innovative practices. Due to
its monopoly there has been a squash on Operating Systems
competition due to the inability for other superior OSes to compete
with Microsoft Windows. These operating systems such as Macintosh
OS, need to be given a chance. This settlement does not provide
enough to resolve the problem of the Microsoft monopoly and its
ranging effects on competition.
Will Trueman
Macintosh and Windows user and owner
MTC-00027914
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:07pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
United States Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Ms. Hesse,
As an educator and working professional in the Computer Industry
I thank you for the opportunity to express my concerns regarding the
Microsoft Settlement. While unqualified to speak on the legal
merits, my opinion on the affects on the computer industry may be of
some value.
Microsoft has always been an aggressive marketer of their
technology and vision of the computer in business and home. While I
respect their right to do so, I disapprove of some of their tactics
and the long term consequences of their clear and pervasive market
monopoly. Netscape was only one of their most visible victims. Do
not forget WordPerfect or Lotus 1-;2-;3, both overcome, in
part, by their inability to operate as effectively on Microsoft
operating systems as their Microsoft analogs, Word and Excel.
Because Microsoft has developed this strategy of supporting
their internal developers, the marketplace is less able to provide
innovative new alternatives. The most recent example is the decision
by Microsoft to not support the developing standards for JAVA
programming, thus ensuring another round of incompatibility issues
with applications developed using non-Microsoft tools. In other
words, Microsoft is saying ``Buy our development tools if you
want your applications to run as well as possible on our operating
systems''.
The critical distinction is between the Operating System and the
Application domains. A forward looking option is to enforce
transparency on the operating system; that they publish all the
specifications, functions, and procedure calls available to any
application. This will ensure as level a playing field as possible,
so that any application developer will be able to utilize any
feature of the system as effectively as a Microsoft application
developer.
With regard to counter arguments that this will compromise
intellectual property or corporate secrets, their copyright will
still be protected under U.S Law. They will have the remedy of the
courts for any perceived violation of their rights, and they will be
treated as any other author with regard to the fruits of their
labor.
While some remedy is necessary, in my opinion, to balance this
market influence, I disagree that the firm should be broken up. It
is a complex and possibly intractible problem with which you are
faced. The advantages Microsoft has provided to all of us in
developing, standardizing ,and popularizing personal computer
technology cannot be discounted. But some enforcement of checks and
balances must be found a reasonable course. The current proposal may
be unenforcable and may provide opportunities for Microsoft to avoid
compliance or exempt itself from the provisions.
I encourage you to hold open hearings and permit input from any
interested party, not only the competitors and the plaintiffs in the
case. Provide a forum for robust discussion of opportunities for
cooperative change.
Microsoft isn't going anywhere; decisions of this magnitude
deserve open dialog, consideration of many differing perspectives,
and careful deliberation.
Thank you for taking the time to consider these comments. If you
have any questions please contact me at your convenience.
Sincerely,
Alan M. Ford
Instructor
Computer Science & Information Systems
American University
4400 Massachusetts Ave., NW
Washington DC 20016-;8116
phone: 202.885.2283
fax: 202.885.1479
email: [email protected]
MTC-00027915
From: Joseph Haefeli
To: Microsoft ATR
Date: 1/28/02 11:56am
Subject: Microsoft Settlement
To Whom it May Concern:
After reading about the Microsoft antitrust settlement, I must
comment that I do not feel it is in the best interest of the US or
the US school systems to give Microsoft yet another opportunity to
practice their bombastic, destructive practices. Giving Microsoft
the opportunity to further their power via their so-called giving of
technology to schools just serves to erode in their favor one of the
few remaining fields where they do not currently have a monopolistic
grip. Additionally, the amorphous nature of this part of the
agreement leaves schools vulnerable to onerous license agreements in
a few years.
Thank you for consideration of these comments.
Joseph Haefeli
Director of Computer Resources
College of Performing & Visual Arts
University of Northern Colorado
MTC-00027916
From: Kimberly Brosan
To: Microsoft ATR
Date: 1/28/02 11:22am
Subject: Microsoft Settlement
Dear Ms. Hesse,
I am writing in regard to the proposed settlement in the
Microsoft Antitrust case. I feel that there are tremendous problems
with the proposal and support the open letter written by Dan Kegel.
There you will find my signature along with many many other people
who are also concerned by this proposal.
I also support Dan Kegel's essay regarding the problems and
difficulties that the proposed settlement will create. I hope that
the Department of Justice will seriously reconsider the problems
with the plan and work to revise it so that it will be of benefit to
computer users.
If Microsoft is not reined in and given more stringent
guidelines to follow, they will continue to create products which
don't work and there won't be any alternatives available. I am glad
that there are alternative operating systems available currently,
but they deserve just as much access to the market as Microsoft has.
Thank you for your time and consideration of this matter.
Sincerely,
Kimberly A. Brosan
MTC-00027917
From: Brubaker, Tony
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:07pm
Subject: Microsoft Settlement
Honorable Judge Kollar-Kotally,
I am writing to express concern regarding the proposed Microsoft
anti-trust settlement. The settlement does not adequately resolve
the damage caused by Microsoft's monopolistic practices and does not
provide adequate guarantees that Microsoft will not continue to
engage in monopolistic practices.
Even though the courts have determined that Microsoft violated
the U.S. anti-trust laws, the proposed settlement would allow
Microsoft to retain the profits from its illegal practices and does
nothing to provide remedies for the many companies that were
negatively impacted or put out of business by Microsoft's illegal
activities.
Furthermore, Microsoft is essentially being asked to police
itself, so there is no assurance that Microsoft will not continue to
engage in illegal practices. Microsoft can largely carry on as it
had before, and the government is therefore implicitly endorsing
Microsoft's monopoly.
I ask you to reconsider the proposed settlement and find another
solution that
[[Page 28161]]
addresses the issues that are mentioned above. Thank you very much.
Sincerely,
Anthony Brubaker
13 Viburnum Court
Lafayette Hill, PA 19444
MTC-00027918
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:56am
Subject: Microsoft Settlement
Dear Mr. Ashcroft,
That Microsoft has maintained a very strong position in the IT
marketplace is a given. That Microsoft has done so unfairly is not.
Microsoft has always maintained its position of strength through
business strategies that simply make good sense. I am not so sure
that these strategies warrant this federal lawsuit.
That the lawsuit suddenly collapsed into a settlement rather
makes my point. Even though the terms of the settlement are
certainly not favorable to Microsoft, it has the advantage of ending
the suit. That Microsoft will be forced into a position of greater
cooperation with its OEMs and third party software developers is
good. However, that they will be forced to give up some more of its
source code is not. Since both sides have agreed to these terms
suggests that the settlement will be more constructive than the suit
would have been.
I am writing to add my own support to the settlement. I am
hopeful that any additional court action on this matter will be
unnecessary.
Sincerely,
Ray Collins
Senior LAN Administrator
Computer Sciences Corporation
MTC-00027919
From: Tim Spink
To: Microsoft ATR
Date: 1/28/02 12:08pm
Subject: Microsoft Settlement
Honorable Judge Kollar-Kotelly, As a management student at
Boston University, the settlement between that US Justice Department
and Microsoft (PFJ) disturbs me.
To begin with, the PFJ still allows Microsoft to operate as a
monopoly through its Windows operating system. In addition to giving
permission to Microsoft to continue breaking anti-trust laws, PFJ
does nothing to punish the company of its monopolistic practices
from years past.
Microsoft has routinely used monopolistic strategies to gain a
larger market share with little regard to competitive practices
defended in the American legal system. Not only has superior
software been either absorbed or destroyed by the company, but the
chance of other companies moving competition further in the industry
has been effectively terminated by Microsoft and this settlement. In
fact, the PFJ does little to enforce the weak restrictions demanded
of Microsoft.
To sum up, I'm deeply concerned the recent settlement does not
regulate Microsoft's monopolistic tactics, nor does it punish the
company's disregard for established law. I request that you do your
best to overturn this settlement.
Respectfully,
Tim Spink
Box 5778
140 Bay State Road
Boston, MA 02215
MTC-00027920
From: T Bird
To: Microsoft ATR
Date: 1/28/02 12:09pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am objecting to the proposed final settlement that the DOJ and
MS have agreed upon behind closed doors. Not only does this go
against the findings by the U.S. Court of Appeals but, in facts
allows MS to go unpunished for past wrong doings.
In addition the Proposed Final Judgment permits Microsoft to
continue its predatory practices at the expense of other companies.
Thus, my main argument encompasses the preservation of healthy
competition and the promotion of diversity with in the business
sector. For a single entity, such as MS, to control 80 to 90 percent
of the market for PC operating systems, e-mail readers, and office
productivity software (which undoubtedly can spread viruses) is
clearly a significant risk to security. To then allow that monopoly
to actively attempt to drive out its remaining competition would
hardly be in the public interest.
Therefore, I submit to you in all fairness that the Proposed
Final Judgment will not solve the Microsoft issue.
ALL THE BEST,
DR. JIMENEZ
1786 LE BEC Court
LODI, CA
MTC-00027921
From: Justin Jones
To: Microsoft ATR
Date: 1/28/02 12:09pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft,
Today I write to encourage the Department of Justice to accept
the Microsoft antitrust settlement. This issue has been festering in
the courts for over three years now and it is time to put an end to
it. A settlement is available and the terms are fair, and I for one
would like to see the government accept it.
In order to put this issue behind them Microsoft has agreed to
many terms. They have agreed to design future versions of Windows to
be more compatible to non-Microsoft software. They have also agreed
to change several aspects of the way that they do business with
computer makers. Microsoft has even agreed to terms that extend well
beyond the products and procedures that were actually at issue in
the suit. Microsoft has given a lot to be able to put this issue
behind them, I would like to see the government accept it.
Microsoft and the technology industry need to move forward. The
only way to move forward is to put this issue in the past. Please
accept the Microsoft antitrust settlement.
Sincerely,
Justin Jones
MTC-00027922
From: Sarah E Kleinknecht
To: Microsoft ATR
Date: 1/28/02 12:08pm
Subject: Microsoft Settlement
Dear Judge,
I would like to express my concern about the case against
Microsoft. Microsoft has become a monopoly on the operating system
on computers. Microsoft needs competition so that we the American
people can receive the best products. In the case, the PFJ will
allow Microsoft to continue as a monopoly which is not right! Thank
you for your consideration.
Respectfully,
Sarah Kleinknecht
184 Earhart Hall
West Lafayette, IN 47906
(765) 495-;6126
CC:[email protected]@i
netgw
MTC-00027923
From: Mark J Antlitz
To: Microsoft ATR
Date: 1/28/02 12:11pm
Subject: Microsoft Settlement
In my opinion the government is bullying Microsoft. Our taxes
would be much better spent going after companies such as Enron and
friends. It is quite clear to me as well as any other educated
individual that our government as well as corporate America wreaks
with corruption. It is time to focus on this very real problem and
stop attacking the innocent in an effort to hide the guilty.
Sincerely,
Mark Antlitz
[email protected]
MTC-00027924
From: Stephen Yoakum
To: Microsoft ATR
Date: 1/28/02 12:10pm
Subject: Microsoft settlement
let it go cut some slack, Accept the offer of Microsofts pack
further litagation will only enhance the position of a very few.
MTC-00027925
From: david levitt
To: Microsoft ATR
Date: 1/28/02 12:12pm
Subject: Microsoft Settlement
The proposed settlement will not end abusive, anti competitive
acts by Microsoft. Any suitable remedy should include as a minimal
subset: Public disclosure of all file, disk, network protocol and
other data interchange formats used by Microsoft operating systems
and programs. This information to be sufficient to allow seamless
translation to and from Microsoft file formats, and seamless
interoperation with Microsoft software.
Full disclosure of all Application Programming Interfaces.
Microsoft applications forbidden to use interfaces unavailable to
independant software developers.
No software discounts other than quantity purchased. Uniform,
publiclly available price schedules. Microsoft product licences to
be made transferrable and vendable, the same way physical products
are treated [e.g. textbooks, novels and other common publications].
No penalties may be asesed by Microsoft against computer
manufacturers, software developers or end users for using non-
[[Page 28162]]
Microsoft software or supplying it as an option.
Computer manufacturers to have free reign to sell the hardware
and software that they deem approriate, including systems without an
installed operating system, or systems operable with multiple
operating systems.
Microsoft software installations are not permitted to disable
currently functional software. Microsoft to be forbidden to announce
products prior to 90 days before shipment to customers.
Any group monitoring terms of the settlement to have the right
and duty to provide public disclosure.
David Levitt
19 Doral Lane
Bay Shore, NY
MTC-00027926
From: Terri Tenore
To: Microsoft ATR
Date: 1/28/02 12:13pm
Subject: microsoft
I don't side with Microsoft, how do you think he came up
windows, why is it Microsoft was in court! ``they will do it
again''. attack repeat attack
Fred Tenore
MTC-00027927
From: caos vida
To: Microsoft ATR
Date: 1/28/02 12:12pm
Subject: Microsoft Settlement
I very much feel that Microsoft has too much control of the
market and this needs to be corrected. I belive that linux and any
other operating system should have an fair chance to gain access to
our computing world and be able to coexist. This is no different
than the AT&T breakup and the soloution to that worked very well
I think in retrospect.
kevin j brennan
rd#2 box 148
frankford de. 19945
MTC-00027928
From: Roger Mullan
To: Microsoft ATR
Date: 1/28/02 12:12pm
Subject: Microsoft is an essential part of the recovering IT
industry
To whom it may concern
I am a computer programmer and I feel that a whole and strong
Microsoft , as an industry leader, is an essential part of the
recovering IT industry. Some of Microsoft's tactics may be less than
honorable but that is business , the software and standards they
produce are essential to millions of people's business and social
lives. I appeal to you to, please not allow any group or individual
, to threaten the evolution of the IT industry and the progress that
Microsoft is making in all aspects of there newly innovated
standards and software.
Any breakup of Microsoft would put the industry back, at least
10 years and who knows how long it would take to recover,affecting
the work and recreation of millions.
I trust you will take these facts into account, when making your
judgment.
Yours truly
Roger K Mullan
IT Consultant
CC:Microsoft ATR
MTC-00027929
From: David Taber--;DOTnet Consulting
To: Microsoft ATR
Date: 1/28/02 12:13pm
Subject: Microsoft settlement citizen/competitor input
I understand that there is still time to submit public comment/
recommendations on the Microsoft antitrust settlement. Summary:
* The software industry is so complex, and Microsoft so
dominant, that administrative and procedural remedies will be a
complete waste of time for the government and Microsoft itself.
There are too many loopholes and back- doors to ever regulate the
company as structured.
* Splitting the company up would work to an extent, but over the
long run would simply create two or more monopolies, rather than one
big one.
* Perversely, the industry actually prospers when there is a
near-monopoly to drive de facto standardization. The software
industry does *not* thrive on the chaos of small players. So the
industry would be best if there were a quasi monopolist that didn't
do economic harm.
* The only way to actually neutralize a monopoly in the software
industry is to fundamentally alter the economics of the monopolist.
With the incentive gone, the behavior and damage to the industry
would fade away.
* The operating systems market for Intel-based PCs is brain-
dead: it exists, but it does not function in any meaningful sense.
So there is an opportunity to neutralize the bad effects of the
Microsoft monopoly.
* The government can use the argument of eminent domain to
declare the PC OS ``marketplace'' as property that will be
taken over in the public interest. The government then grants this
``marketplace'' as a dead-zone in which only Microsoft can
be a commercial supplier. The government pays Microsoft one dollar a
year, and the fees paid by PC vendors for their operating systems
goes to the US treasury. (An alternate form of this recommendation
is just to put Windows into pure open source, where many vendors can
work to make the system more secure and reliable while no vendor can
charge for the product.)
* Microsoft thus has an incentive to keep their OS innovations
going (to make their applications business prosper, but they get no
monopoly profits from the OS. They also have little power over the
PC vendors or application vendors.
Now that I've written the ``summary,'' I'll spare you
the details.
Regards, and good luck.
David O. Taber
DOTnet Consulting
555 Bryant Street, Palo Alto CA 94301
voice: +1-;650-;326-;3405 (rolls to voicemail)
page: [email protected] (keep your
message just one line ! !)
fax: +1-;650-;326-;1475
mail: [email protected]
ICQ: 138661538
www.D-O-Tnet.com
MTC-00027930
From: Raj
To: Microsoft ATR
Date: 1/28/02 12:13pm
Subject: Microsoft Settlement
Judge Kollar-Kotally,
I wish to express my personal perspective on Microsoft vs. U.S
As an 8th grader in Rantoul, Illinois I have concluded and
noticed many disturbing views of Microsoft's control of the software
industry or as we would say monopoly. I really don't think its fair
Microsoft is a monopoly because of the prices it sets on software.
$200 on software program which I know it would be about $50 if there
was competition.
I have learned in school about the Sherman Anti-Trust Act was
too weak or very ineffective because of big companies bribing high
officials which I think that Microsoft is doing. I might not have
any proof but I know that Microsoft is at least violating some part
of the Sherman Anti-Trust Act which I think is really wrong. If we
let one company do this then slowly more and more companies will
start doing this in other industries.
Although I like the stuff Microsoft makes the thing is that they
set the prices to high.We all know that there are many more
companies competent enough to make such software if given a chance.
That way people will have more variety. Microsoft is just taking it
easy with coming out with not so late and just adding a few
adjustments to their software at their own price and pace they would
like to set it at. If there are more companies the quality of the
product will become better and that way many companies will join in
to make the best quickly. The prices will be low and the people will
be content.
Thank you
Sincerely Yours,
Yashua Bhatti
MTC-00027931
From: Bob Petolillo
To: Microsoft ATR
Date: 1/28/02 12:14pm
Subject: Microsoft Settlement
Please see the attached letter concerning the lawsuit against
Microsoft.
Bob Petolillo
Enterprise Data Solutions
148 Basil Court
Lawrenceville, GA 30043-;6126
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
January 26, 2002
Dear Mr. Ashcroft:
As a member of the IT industry, I welcome an end to the
Microsoft anti-trust case. This case has had a debilitating effect
on the IT industry and the economy in general. If fair competition
is the desired end to the government's actions, competition is not
encouraged by draining the energy of one competitor. You do not get
a better race by hobbling the favorite. Howsoever, a means to end
this case exists in the proposed settlement agreement before you now
for consideration. It should be adopted and this case resolved. The
settlement fairly deals
[[Page 28163]]
with the positions of all the parties. Microsoft, by its terms, will
remain one sole corporation, but will take certain actions to dilute
its monopolistic influences in its industry. Microsoft will now
configure its Windows platforms to invite the use of non-Microsoft
software. It will no longer contractually constrain computer
manufacturers to the nearly exclusive use of Microsoft products in
licensing agreements. It will submit itself to ongoing review by a
new federal oversight committee. It has committed itself to a
completely new method of doing business entailing an active effort
to foster competition. Microsoft deserves to continue to thrive. It
is an elemental force in perhaps our nation's most important
industry. Please support this settlement.
Sincerely,
Robert Petolillo
MTC-00027932
From: Kevin McDaniel
To: Microsoft ATR
Date: 1/28/02 12:11pm
Subject: Microsoft Settlement
Distiguished Gentlemen,
Please accept my attached letter of opinion for your
consideration on the current Microsoft Settlemt Case. I am hopeful
my opinions will be mirrored in policy by the party and
administration I so adamantly support.
Respectfully,
Kevin McDaniel
President
Arrival Technologies Inc.
415 Security Square
Gulfport, MS 39507
228-;314-;1100 ext. 101
228-;323-;1166 cell
228-;897-;1109 fax
[email protected]
Arrival Technologies, Inc.
Your Single Source for Business Technology
January 16,2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I suspect the Justice Department offered to settle its antitrust
lawsuit against Microsoft due to your taking over as head of the
agency. As a reasonable man you probably recognize the Clinton
Administration's antitrust suit against Microsoft, and their
intended break-up of the company, jeopardized software innovation
and standardization. This scenario would seriously hinder the United
States'' competitive edge and is why the settlement should be
finalized without further ado.
If one accepts the premise that Microsoft is a monopoly, which I
do not, the settlement will cure the problem. The settlement speaks
for itself: 1) Microsoft has agreed not to retaliate against
computer makers who ship software that competes with anything in its
Windows operating system; 2) Microsoft has agreed not to retaliate
against the software developers who make or promote the software
that competes with Microsoft. While these are only two tenets of the
22 pages of the settlement, they alone should make Microsoft's
competitors happy because they will inhibit anti-competitive
behavior. I find it curious that certain opponent's of Microsoft
reject the settlement and refuse to sign on to it. It is
unfortunate; they should not be allowed to derail the process.
I am a small business owner in South Mississippi who specializes
in computer networking and software support. It is my steadfast
belief that the free market should be allowed to determine which
products are bought and sold by professionals in the industry.
Microsoft offers superior products and this is why they possess the
market share they do. This lawsuit has not only affected my business
but also my investments in the market. It is my hope that the
government will accept the settlement in as timely a manner as
possible so our industry can begin to heal from this unnecessary
intrusion into the free market.
Sincerely,
Kevin McDaniel
President
Cc: Senator Trent Lott
415 Security Square, Gulfport MS 39507
228-;314-;1100
MTC-00027933
From: Neal Lindsay
To: Microsoft ATR
Date: 1/28/02 12:15pm
Subject: Microsoft Settlement
To Whom it might concern:
I am a network administrator for a small engineering company,
and I have been working with computers for half of my
life--;usually on Microsoft operating systems. I have had the
chance to use other operating systems (such as various Unices and
Linux) and many have signifigant advanced features that Windows
(even XP) has not come close to. Microsoft has the money to
implement such advanced features, but it does not have to because
its customers are locked into its operating system. This is probably
the single largest problem plaguing the computer world right now,
and this case has the opportunity to force Microsoft to open up and
let in any companies brave enough to challenge it. That being said,
I do not believe that the proposed Microsoft settlement goes far
enough. The idea of making Microsoft open up its APIs is a good one,
but it is weakened by the restrictions placed upon it. For example,
any scrutiny of Microsoft's code is bound to reveal security holes
(Microsoft software is traditionally full of them). Microsoft would
almost certainly use this as an excuse to not open up more than a
token amount of what would be needed for a company to compete with
them.
This case is complicated from both a legal standpoint and a
computer technology standpoint--;to the point that almost noone
can understand the proposed settlement. You are not likely to find
an impartial voice in all of these public comments--;everyone
has a stake in the outcome. But please, don't let Microsoft off with
just a slap on the wrist. They have continued to violate anti-trust
laws even as they were in trial for breaking those same laws. They
need some sort of serious penalty AND need to take steps to reverse
their ill-gained market shares in many different markets.
Thank you.
Neal Lindsay
Network Manager
MTC-00027934
From: O B
To: Microsoft ATR
Date: 1/28/02 12:15pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am filing my objection to the Proposed Final Judgment in the
Microsoft case. In the last several weeks, close friends and
relatives have brought this proposed settlement to my attention and
in all honestly I dont like what I see. I cant possibly imagine the
Department of Justice throwing out court findings that indicts
Microsoft for all illegal activities both past and present. First
and foremost the Proposed Final Judgment grants MS a government
mandated monopoly that threatens to destroy any and all serious
Microsoft competitors. Im all for free enterprise and what it
symbolizes. To strike a huge blow against the spirit of free
enterprise, one need not look any further than to allow MS to
monopolize every sector, whether it is the gaming industry or the
software industry, by eradicating most if not all competitors. By
all means diversity is one essential ingredient in maintaining a
healthy industry and more importantly a thriving economy.
I submit to the Court that the Proposed Final Judgment does not
solve the Microsoft issue.
Respectfully,
ERLIN JIMENEZ
1786 LE BEC COURT
LODI, CA 95240
MTC-00027935
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:16pm
Subject: Re:Moicrosoft Settlement
I favor having al lof the states settlle the Microsoft cases in
the manner thant has alreadyh been done by the other states. It is
time to bring these actions to a conclusion.
Sincerely.
Robert D Roach Jr
MTC-00027936
From: Bev
To: Microsoft ATR
Date: 1/28/02 12:16pm
Subject: antitrust lawsuit
Microsoft is a creative, tough company which may, or may not,
have had some anti-trust practices in the past, but it is time to
move on. The company has worked hard to develop products that people
need and use. Just because some other companies are unable or
unwilling to work as hard and creatively, they should not be allowed
to succeed by bringing Microsoft down. This company has done much
for the economy and needs to be allowed to move on past this
lawsuit. Please find in favor of the Microsoft settlement as
presented.
Thank you,
Bev and Morris Crump
6105 284th Street NW
Stanwood, WA 98292
MTC-00027937
From: George J. Papanicolaou
[[Page 28164]]
To: Microsoft ATR
Date: 1/28/02 12:15pm
Subject: Microsoft Settlement
To Whom it May Concern:
Pursuant to the Tunney Act, I am writing to comment on the
proposed settlement of the United States vs. Microsoft antitrust
case. The proposed penalty for Microsoft's violations is entirely
prospective and the predictability of the penalty to effect a
sufficient diminishment of Microsoft's anticompetitive behavior is
completely inadequate, including being overly complex and to vague,
especially in light of published comments by Microsoft CEO Steve
Balmer after Microsoft's conviction that he does not even know what
a monopoly is. Furthermore, Microsoft has failed to live up to
previous agreements. In addition, Microsoft did not report its
extensive lobbying of Congress or a White House meeting last summer
between its chief executive, Steve Ballmer, and Vice President Dick
Cheney. This is a violation of the Tunney Act itself.
What would make the settlement fair? Divide the company into
Applications and System Software entities with a firewall between
them. Had politics not interfered, this approach was the only
logical choice. Failing this reasonable approach, other remedies,
although half-measures are required.
1) Open up all Windows APIs to all interested parties with
thorough documentation and standardization. Exorbitant penalties
would be made if either the APIs are not fully documented or if non-
open APIs are used by Microsoft.
2) Open up all Microsoft Document Standards and publish them
immediately because market dominance has created a defacto standard
for such files. In addition, the use of a non-Microsoft standards
board, modeled on the W3 organization for web site documents, could
insure that office as well as other documents generated by Microsoft
applications would be fully usable, readable, and alterable by other
programs. This would allow some competition in the office suite
industry and hopefully prevent the use of ``Microsoft
only'' codes in browser or office apps that prevent others from
having a choice in selecting an office suite. Also, features that
allow a user to assign the opening of programs with other apps
through a central registry would be useful, allowing an individual
to easily bypass Microsoft Products and Services.
3) Microsoft should be required to produce Office Software for
the Macintosh system as long as Apple remains in business. It should
not be able to again threaten Apple with canceling further Mac
Office development. In addition, Microsoft must be required to make
the Mac Office Suite with the same features and document
transparency as the Windows version. They must also not hobble the
software in any way to make the Windows version appear faster. As
Mac Office is a profitable venture for Microsoft, failing to
manufacture it would be indicative of a monopoly threatening a small
rival.
In addition, software which can interact with Microsoft server
products, such as Outlook, should be made available for the Mac,
including subsequent operating systems, and have all features
available in the Windows client.
4) In order to give more choices to consumers, either Microsoft
should create a Linux version of their Office and Browser software
or should license their software and/or ``look and feel''
to anyone wishing to produce software for the Linux system. This
would keep Microsoft from keeping offices and homeowners away from
alternative operating systems. Microsoft used to offer Word for Unix
systems with far fewer users than Linux. It cannot argue that as a
company with monopoly powers and rich coffers that it isn't
feasible.
As someone who has been using computers and programming them for
seventeen years, I have seen little innovation from Microsoft. The
advances in the field have been due to smaller players that have
been crushed by Microsoft. Currently, Microsoft has monopoly powers
and is seems less concerned with innovation, reliability, and
security, than with market domination and extension. Our national
security and economic competitiveness requires a stronger action
than has been proposed by the Justice Department.
Regards,
George J. Papanicolaou, PhD.
MTC-00027938
From: Fred Tenore
To: Microsoft ATR
Date: 1/28/02 12:16pm
Subject: Microsoft
I don't side with and don't trust Microsoft. They will do it
again, so attack! repeat attack!
Frederick Tenore
MTC-00027939
From: Adam Christian Smith
To: Microsoft ATR
Date: 1/28/02 12:19pm
Subject: Microsoft Settlement
I would just like to add my two cents on how I personally have
seen Microsoft quell, steal, or destroy creativity in the
programming and software market using proprietary language.
Secondly, they are dirty as hell. They leverage there power and when
questioned, they act like they can1t ``innovate'' if they
are restricted in any way. Truth be told, Microsoft has never
``innovated'' a thing in their history. It has all been
direct copies, cheap rip-offs of other platforms, or buyouts of
small companies again putting them in the position to dominate a
market.
Thanks,
Adam
MTC-00027940
From: jerldon
To: Microsoft ATR
Date: 1/28/02 12:20pm
Subject: Fwd: [MICROSOFT SETTLEMENT]
DEAR SIR
I AM A CONCERNED CITIZEN WHO BELIEVES THAT THE CLINTON
ADMINSTRATION STARTED THIS ANTITRUST STUFF AGAINST MICROSOFT SIMPLE
TO ALLOW THEIR ATTORNEY FRIENDS TO MAKE A LOT OF MONEY IN LEGAL FEES
AND HAd nothing to do with microsoft being A MONOPOLY. THEY JUST
HAPPENED TO BE AN EASEY TARGET. I AM SURE IF YOU
LOOK AROUND YOU CAN FIND SOME REAL PROBLEMS IE ARTHUR ANDERSEN,
ENRON, ETC.
SINCERLY
JC BOATRIGHT
1345 FALKENBURG RD
TAMPA, FL 33619
813 657 2663
MTC-00027941
From: Page, Nathan (N.L.)
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:30pm
Subject: Microsoft Settlement
I agree with Microsoft.
MTC-00027942
From: u V
To: Microsoft ATR
Date: 1/28/02 12:21pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
Your honor, I am stating my objection to the Final Settlement
agreed upon between the Department of Justice and Microsoft. I
wanted to point out several underlying flaws attributed to the
Proposed Final Judgment.
One noticeable flaw encompasses an inept enforcement device
implementing restrictions. The settlement in other words closely
monitors and screens all of Microsofts business activities. This
close scrutiny insures MS complies with all restrictions entailed in
the agreement.
A three man compliance team will oversee and insure that
Microsoft comply with the stated rules and regulations. Yet, this
three-man oversight committee will be composed of the following: one
appointee from the Justice Department, one appointee from Microsoft,
and another appointee chosen by the two existing members. In turn,
Microsoft will control half of the oversight team.
Also, in the likelihood of any enforcement proceeding, all
findings by the oversight committee will not be allowed into court.
The sole purpose of the committee is to inform the Justice
Department of all infractions by Microsoft. Subsequently the Justice
Depart will launch its own investigation into the matter and
commence litigation to halt all infractions. When all is said and
done, the oversight committee is just window dressing, who will not
strictly oversee Microsofts business moves?
In my opinion, the Proposed Final Judgment does not provide
appropriate restrictions against Microsoft. What reassurance do we
have against Microsofts illegal and illicit activities? I can assure
you that the Proposed Final Judgment does not effectively nor
sufficiently address the question. In conclusion, I submit your
honor my objection to the final settlement in the Microsoft case.
Sincerely,
Dr. Cesar Ortiz
285 Glennwood Ave.
Daly City, CA 94015
650-;758-;2658
MTC-00027943
From: Jean Peterson
To: Microsoft
ATR,[email protected]@inetg
w,[email protected]...
[[Page 28165]]
Date: 1/28/02 12:21pm
Subject: Judgement
If I understand the Judgement correctly, Microsoft is to receive
no ``punishment'' at all for it's illegal activities. They
are only instructed to stop performing them. This is a problem.
Perhaps the Government or the Court feels that Microsoft has already
suffered some penalties because of the interruption of business and
other interference because of this litigation. However, in other
cases where, for instance, a criminal's punishment is limited to
something already done (i.e. ``time served''), sentence is
still passed for the record and that stipulation that the sentence
is to be considered ``fulfilled'' is still entered into
record. And considering the amount of money that the various
governments have had to spend in legal proceedings simply to force
Microsoft to stop behaviors that were illegal to begin with, the
governments should at least apply penalties to recoup these monies
in the interests of their constituents.
Jean Peterson
MTC-00027945
From: Purple Rose
To: Microsoft ATR
Date: 1/28/02 12:21pm
Subject: Microsoft Settlement
Deborah E. Rose
7804 Briana Renee Way
Las Vegas, NV 89123-;0449
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft,
I support the recently proposed antitrust settlement between
Microsoft and the Department of Justice. I would like to see an end
to this lawsuit and I believe this is one of the more favorable
resolutions. Microsoft has given up access to several of its Windows
products, and given up much of the code that helps Windows run
efficiently.
Historically, Windows has been a large part of its competitive
advantage. This is a very generous concession on the part of
Microsoft. I hope that you will support Microsoft. It has stood out
as a great example of a company that can be charitably generous and
still make lots of profit. We should allow it to continue these
efforts.
Sincerely,
Deborah Rose
MTC-00027946
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:24pm
Subject: Antitrust settlement
Renata Hesse: I believe that the antitrust settlement between
the USDOJ, Nine States and Microsoft should be approved. From my
perspective, as a consumer, this suit was never about my protection,
How am I hurt by getting something for free, that someone else wants
me to pay them for? Putting the browser in the operating system is
so logical that I have wondered about the suit from the beginning.
This entire process has been brought on behalf of competitors. I did
not think that this was the purpose of antitrust efforts. But, the
judges have ruled, so the best thing to do is get the settlement
approved and move on.
Duane E. Matthews
7817 SE 75th Place
Mercer Island, WA 98040-;5501
MTC-00027947
From: Peter McDonald
To: Microsoft ATR
Date: 1/28/02 12:25pm
Subject: Microsoft PFJ Comments.
To whom it may concern,
As a consumer of Microsoft products as well as a business
professional in the software industry I would like to add a few
important comments concerning the proposed final judgment between
the US DOJ and Microsoft. Simply put the proposed settlement does
very little to address the three items listed by the US Court of
Appeals. Hence, my recommendation is that the PFJ proposal in its
current form is not acceptable. I ask that the DOJ needs to address
the three key components listed unanimously by the U.S. Court of
Appeals ruling. Specifically, to
*terminate Microsoft's legal monopoly
*deny Microsoft the fruits of its past violations
*prevent future anticompetitive activity.
As an observer and professional in the software world I define
Microsoft's mantra to be one of domination. Over the past few
decades Microsoft has uses both legal and illegal practices to
attain their goal of domination. If the current PFJ is accepted, I'm
left with two questions.
First, does the DOJ's definition of effective anti-trust work
include the supporting of monopolies? Second, is the precedent for
dealing with companies with a track record of violating anti-trust
laws to condone their track record of violations? I hope the answer
to both questions are no. As such I ask that the current PFJ be
updated to include the three items unanimously decreed by the US
Court of Appeals.
It is great to be an American where each individual has a voice.
Thank you for your consideration of this issue.
Regards,
Peter McDonald
Peter McDonald
Director
VerdiSoft
Palo Alto, CA
650 812-;8511 office
MTC-00027948
From: Michael Horowitz
To: Microsoft ATR
Date: 1/28/02 12:24pm
Subject: Microsoft Settlement
Hello,
One complication in this case is defining what a computer
Operating System(OS) is. Microsoft keeps adding features to Windows
and every time it does, it stretches the meaning of the term
``Operating System''. What Microsoft sells now is not so
much an OS, but a combination of an OS and assorted applications. No
doubt you are aware that what Microsoft does in expanding the scope
of the OS is tantamount to what, in other contexts, is called
``dumping''. It is as if Toyota started selling its cars
for $3,000 instead of $19,000 to drive Ford Motor out of business.
This is exactly what Microsoft does and has done many many times.
They can do it because they are rich enough and because the
incremental cost of software is almost zero, brutally different from
an automobile. This case may have been about web browsers, but
people in the computer field have seen Microsoft use the same tactic
(give away software to kill the competition) many times.
MY SUGGESTION:
I suggest that development of Windows be assigned to a separate
company that is restricted to developing an Operating System in the
strictest sense of the term. This will require monitoring by an
independent entity as to just what features and applications belong
in the base OS and which are considered external applications (more
on this below). I'm not sure if this separate Windows OS only
company should be for profit or not.
This would let Microsoft add whatever features and applications
they want to the core OS and sell a product called Microsoft's
Windows. However, Dell and Compaq and Gateway and IBM would also be
free to add whatever features and applications they wanted to the
core OS and sell it as their version of Windows. Any software
company should be free to license the core Windows OS and add
whatever features and applications they want and sell it on the open
market. Each company selling a version of Windows would compete
based on price, their reputation for quality software and support,
and the features and applications they chose to include. This, by
the way, is how Linux is sold with the exception that the core Linux
OS is free. I am not suggesting that the core Windows OS be free.
Drawing the line between the core Windows OS and extra-add-on
applications could be a full-time job. In the case of word
processing for example, it seems obvious that Notepad and WordPad
are not full-blown word processors and therefor could be included in
the core OS. In contrast, Word and WordPerfert are full featured
word processors and therefore falls into the category of a seprate
application. In other areas the distinction will not be so easy to
make. If a program to play sound files can have 100 features, which
of those features qualify for a bare-bones version that can be in
the core OS and how many features does a program need before it
qualifies as a full-blown application that can not be included in
the core OS? Someone will need to decide.
That's my 2 cents. Thanks.
Michael Horowitz
MTC-00027949
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:24pm
Subject: Microsoft Settlement
Attention: Renata B. Hesse
Antitrust Division
Department of Justice
It is my opinion the settlement represents the best opportunity
for Microsoft and the
[[Page 28166]]
industry to move forward. The rulings are fair to all parties
involved.
It is also my opinion that Microsoft is one of a few American
corporations that truly has the ``consumers'' best
interest at heart. I can't say that for many other corporations.
Respectfully,
Wendy C. Hawkins
8838 E. Sunnyside Drive
Scottsdale, AZ 85260
480/314-;8586
MTC-00027950
From: judythw(a)earthlink.net
To: Microsoft ATR
Date: 1/28/02 12:25pm
Subject: Microsoft Settlement
Sirs:
I ask you to please not allow Microsoft to continue its monopoly
operation. I ask for freedom to choose. We are trying to preserve
our freedoms now. Please help.
Judyth O. Weaver, Ph.D.
73 Montford Avenue
Mill Valley, California 94941
415-;388-;3151
MTC-00027951
From: Bock, David
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:27pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally:
I am writing to comment on the Proposed Final Judgement with
Microsoft. As one involved in the software industry, I appreciate
the contributions of Microsoft. However, their dominance of
operating systems has given them extraordinary market power, which
they have used ruthlessly to crush competitors and forestall
innovation in the interests of consumers. The PFJ needs to be
materially strengthened to level the playing field. The sanctions
must be strong and the disincentives to further monopolistic
behavior clear. Do not allow Microsoft to play on complexity, market
uncertainty or promises of different behavior in the future. The
company's culture is one of ruthless competition at a time when they
should be providing support rather than destruction. They now
operate a utility, are enjoying monopolistic returns on capital and
are utilizing their financial strength to maintain a monopoly
position.
The consumer is served by the standardization that Microsoft's
success has brought. But the consumer is also vulnerable to the
abuse of monopoly power. The public interest requires that the
Federal government either sanction and restrain the monopolist or
eliminate the monopoly position.
It's that simple.
Sincerely yours,
David Bock
EVP and CFP
Pedestal Inc.
MTC-00027952
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:26pm
Subject: microsoft settlement
Please settle with microsoft.
MTC-00027953
From: Aaron S Kamlay
To: Microsoft ATR
Date: 1/28/02 12:26pm
Subject: Microsoft Settlement
To Whom It May Concern:
I am writing to comment on the Proposed Final Judgment (PFJ) of
the United States v. Microsoft antitrust case. I believe that the
PFJ does very little to discourage Microsoft from continuing its
anticompetitive practices, and fails to restore balance to the
markets which have been seriously damaged by those practices in the
past.
Specific Failures of the Proposed Final Judgment:
1. Section III.J.2
Section III.D requires Microsoft to licence ``the APIs and
related Documentation that are used by Microsoft Middleware to
interoperate with a Windows Operating System Product'' to
``ISVs, IHVs, IAPs, ICPs, and OEMs''. However, section
III.J.2 essentially gives Microsoft the freedom to choose which
ISVs, IHVs, etc. may receive this information by allowing Microsoft
to require that any licensee ``(a) has no history of software
counterfeiting or piracy or willful violation of intellectual
property rights, (b) has a reasonable business need for the API,
Documentation or Communications Protocol for a planned or shipping
product, (c) meets reasonable, objective standards established by
Microsoft for certifying the authenticity and viability of its
business, (d) agrees to submit, at its own expense, any computer
program using such APIs, Documentation or Communication Protocols to
third-party verification, approved by Microsoft?''
This gives Microsoft the ability to keep the ``applications
barrier to entry'' artificially high. There are no restrictions
on what Microsoft may consider ``authenticity and viability of
[the licensee's] business'' or even a ``reasonable
business need''. It could be used to keep start-up or open
source software projects from gaining access to APIs crucial to
their success; in fact, it could allow Microsoft to restrict such
projects from information to which they had prior access via the
MSDN. (See, for example, Jeremy White's analysis of the impact of
section III.J.2 on the open source Wine project at http://
www.codeweavers.com/jwhite/tunneywine.html.)
2. Section III.D.1
Section III.D.1. exempts Microsoft from the requirement to
``document, disclose or license to third parties: (a) portions
of APIs or Documentation or portions or layers of Communications
Protocols the disclosure of which would compromise the security of a
particular installation or group of installations of anti-piracy,
anti-virus, software licensing, digital rights management,
encryption or authentication systems?''
It has been reported by a variety of news agencies that
Microsoft has plans to include digital rights management,
authentication, and other related security features in future
versions of Windows. See for example,
The Register, Mar 23 2001,
``MS plans ``Secure PC'' that won't copy pirated
audio files''
http://www.theregister.co.uk/content/4/17851.html
Wired News, Feb 13 2001,
``Windows XP Can Secure Music''
http://www.wired.com/news/technology/0,1282,41614,00.html
Microsoft has already included encryption services in Windows
2000 Service Pack 2
(see http://www.microsoft.com/windows2000/downloads/
servicepacks/sp2/def ault.asp).
Given Microsoft's past actions, including integration of
Internet Explorer with the Windows OS, and more recently integration
of Windows Media Player with WindowsXP (see http://news.com.com/
2100-;1040-;256387.html?legacy=cnet), there is every
reason to assume that Microsoft will integrate current and future
installations of ``anti-piracy, anti-virus, software licensing,
digital rights management, encryption or authentication
systems'' into the Operating System. Thus many key APIs, such
those dealing with basic network communication, file/disk access,
and even simple multimedia capabilities could be claimed as
exceptions under section III.D.1. Again, this would serve to keep
the ``applications barrier to entry'' artificially high.
3. General Remedies and Penalties
Microsoft has been found guilty of maintaining their monopoly
status through illegal means. They should not be allowed to maintain
the profits earned by doing so. The PFJ basically codifies the
current status quo into law, and neither punishes Microsoft for
their past infractions nor prevents them from similar actions in the
future. Strong structural and financial remedies and/or penalties
are necessary to restore balance to a horribly damaged marketplace.
The Proposed Final Judgment is completely unacceptable as a
resolution to the U.S. v. Microsoft case. Please consider stronger,
more effective remedies.
Thank you,
(signed)
Aaron Kamlay
Nashville, TN 37212
MTC-00027954
From: v g
To: Microsoft ATR
Date: 1/28/02 12:26pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
With all due respect, I object to the (PFJ) Proposed Final
Judgment in the Microsoft case. There are numerous flaws in the
final proposal, which undoubtedly gives Microsoft absolute, power to
continually abuse their existing monopoly position. Based on my
review, the proposed settlement overlooks one thing. This one defect
contains a faulty mechanism to implement appropriate restrictions.
As stated in the settlement, Microsoft will be closely monitored to
comply with all restrictions encompassed with in the stated
agreement.
A three man compliance team will oversee and insure that
Microsoft comply with the stated rules and regulations. Taking a
closer look however, this three-man oversight team will be composed
of the following: one appointee from the Justice Department, one
appointee from Microsoft, and another appointee chosen by the two
existing members. In turn, Microsoft will control half of the
oversight team. Also, in the likelihood
[[Page 28167]]
of any enforcement proceeding, all findings by the oversight
committee will not be allowed into court. The sole purpose of the
committee is to inform the Justice Department of all infractions by
Microsoft.
Subsequently the Justice Depart will launch its own
investigation into the matter and commence litigation to halt all
infractions. When all is said and done, the oversight committee is
just window dressing, who will not strictly oversee Microsofts
business moves? In my opinion, the Proposed Final Judgment does not
provide sufficient and appropriate restrictions or penalties against
Microsoft. What reassurance do we have against Microsofts illegal
and illicit activities? I can assure you that the Proposed Final
Judgment does not effectively nor sufficiently address the question.
Therefore I submit to the court my objection to the Proposed Final
Judgment.
Respectfully,
Mrs. Alsida Ortiz
285 Glennwood Ave
Daly City, CA 94015
MTC-00027955
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:26pm
Subject: Microsoft settlement
Consumer interests have been well served and it is time to end
this costly litigation against Microsoft now.
Helene K. d'Esterhazy
MTC-00027956
From: Classic de Sign
To: Microsoft ATR
Date: 1/28/02 12:31pm
Subject: Microsoft Settlement
Dear Ms. Hesse:
I am the owner of a small interior design firm and would like to
comment on the settlement with Microsoft.
I believe that there is undue haste in reaching a settlement for
what has been a carefully executed pattern of illegal behavior by
Microsoft. Microsoft controlled the application market so tightly in
the Macintosh operationg system that it not only drove out
competitors like WordPerfect but used its applications as hostage to
obtain concesions from Apple Computer, Inc.
The pattern of illegal behavior forced Apple to offer the
Microsoft, Internet Explorer to be the supported application by
Apple. If this would not have happened, there would have been no
Office, Word or Excel. Futhermore, those us who used Netscape still
found that the presence of Microsoft codes in the office
applications to crash the Netscape browser. The choice for us was
the applications or the Netscape browser. The same type of illegal
tactics got its media player dominance after finding that they
copied code from QuickTime. This issue was closed when Microsoft
gave money to Apple to drop the suit. The patter of illegal tactics
by Microsoft is quite large and pervasive and I find the current
proposed settlement to be insufficiently punitive to punish or to
encourage Microsoft to change its ways.
I strongly suggest that the monetary settlement be cash and that
the sum be increased to 5 Billion dollars, a sum that will teach a
lesson and one that Microsoft can afford.
Sincerely,
Louis R. de Alvare
MTC-00027957
From: Nolan Lameka
To: Microsoft ATR
Date: 1/28/02 12:28pm
Subject: Microsoft settlement
I believe the microsoft settlement is as fair as it can be .
Personally I think the government had no business interfering in
business on the side of microsofts'' competitors.
Leave Microsoft alone or at least don't be a tool of AOL,
Oracle, and SUNW.
Nolan A Lameka
[email protected]
MTC-00027958
From: jonathon
To: Microsoft ATR
Date: 1/28/02 12:23pm
Subject: Microsoft Settlement
Count this as one vote against the proposed Microsoft/DOJ
settlement. I feel this agreement is a bad idea and would not be in
the interest of computer users. Concrete steps should be taken to
stop bad business practices. Reason needs to prevail.
Jonathon Vreeland
www.spork.nyc.ny.us
email: [email protected]
MTC-00027959
From: Freddy Thomas
To: Microsoft ATR
Date: 1/28/02 12:29pm
Subject: Microsoft Settlement.
18203 Max Middleburg Road
Maxville, FL 32234
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my opinion of the recent settlement
between the US department of Justice and Microsoft. I think the
lawsuits have dragged on for far too long now and have been a waste
of taxpayer dollars. I am a proponent of free enterprise and the
government's interference with Microsoft is ridiculous.
The only criticism of Microsoft could be that their marketing
tactics are a bit heavy-handed, but that is hardly an antitrust
violation. The terms of the settlement are harsh against Microsoft
and should appease all competition. Microsoft will be disclosing
interfaces that are internal to Windows operating system products.
They will also be granting computer makers broad new rights to
configure Windows so that competitors can more easily promote their
own products. These concessions and more should appease all parties
involved in dispute.
I urge your office to do what is right for the public and our
economy and finalize the settlement.
Thank you.
Sincerely,
Homer Thomas
MTC-00027960
From:microscopes_sls_svc@
hotmail.com@inetgw
To: Microsoft ATR
Date: 1/28/02 12:26pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Harold Anderson
P. O. Box 118
Falls of Rough, KY 40119
MTC-00027961
From: Ken Valero, Sr.
To: Microsoft ATR
Date: 1/28/02 12:29pm
Subject: Microsoft Settlement
As a Macintosh user I feel that Microsoft did nothing wrong. I
believe what we have here is envy of Microsoft's competition in that
they did develop the idea first. Bill Gates had the foresight and
ambition to move ahead when he did. After all is this not the land
of opportunity and free enterprise. The competition was asleep at
the switch and Gates seized the moment.
Bill Gates and Microsoft should be praised for advancing the
technical knowledge of computers that we are all benefiting from.
So, my feeling is that the Federal Government should get off the
back of all businesses both big and small so that we can make
progress. It is about time that all entrepreneurs are recognized as
the people that make this country as great as it is and make the
economy strong.
Ken Valero, Sr.
President K V Associates, LLC
MTC-00027962
From: Liz
To: Microsoft ATR
Date: 1/28/02 12:30pm
Subject: Greetings,
Greetings,
I feel that the current settlement does not adequately address
Microsoft's nearly complete monopoly in the United States''
computer industry. It also fails to restore competition to the
United States'' software industry. Please consider rethinking
the settlement.
Thanks,
Liz Loveland
Somerville, Massachusetts
[[Page 28168]]
MTC-00027963
From: Mark A. Montgomery
To: Microsoft ATR
Date: 1/28/02 12:29pm
Subject: Microsoft Settlement.
C/O Renata B. Hesse, Antitrust Division,
U.S. Department of Justice,
601 D. Street NW. Suite 1200,
Washington, DC 20530-;0001
To: Judge Colleen Kollar-Kotelly
My name is Mark Montgomery. My background includes being an
entrepreneur and management consultant who was also an early booster
to Microsoft dating back to 1981. Since that time, my consulting
assignments have numbered in the hundreds, including dozens of small
businesses in networked industries and recently specifically within
the IT industry cluster.
I converted our business consulting firm in 1995 into an
independent tech incubator and lab. My only business partner joined
our firm in 1997 after working for Microsoft for 17 years. I myself
trained with Microsoft products to become an NT network
administrator, programmer, and analyst who has tested every major
public technology Microsoft produced during the period of this case,
watching in amazement and sometimes horror at the pace of justice
when compared to the environment in question.
I am writing today primarily because circumstances in this case
may allow me to see more potential areas of damage than others. As
any of us who have worked in predatory environments know all too
well, it is rarely what we see that threatens our system, but rather
what we cannot. In this case, I do not believe that any human is
capable of identifying even a small portion of the damage being done
to consumers, much less society, including of course eventually
Microsoft and their investors.
I would like to explain some of our attempts to work with
Microsoft at every level, and the extreme financial stress,
disappointment and embarrassment a few of their executive actions
have caused us and others, but the topic today is on the proposed
settlement pursuant to the Tunney Act. I have carefully studied the
proposed settlement as well as every document filed in this case
since the beginning of the trial. In the early stages of the case, I
provided analysis for the members of our global digital network.
In addition, I may have been the first to publicly label
Microsoft a threat to the global economy, one of the most difficult
declarations of my career that may also partially account for our
failure in attracting external funding to our ventures.
For me, this case represents a test of the very credibility of
the U.S. justice system. Although the case history has been
difficult, and I have not always agreed with the rulings or conduct
of the court, the system credibility was from my view in a recovery
phase until the USDOJ agreed to settle as proposed. The agreement of
the USDOJ to settle on the proposed grounds is where the system
broke down entirely. I'll leave it to others to speculate and/or
determine why.
The proposed settlement is a disgrace and an insult to those of
us who risked everything we had, and often lost, to speak out
against what I believe ranks among the most dangerous threats to the
future of the world in our time; the ability of innovative
technology to be conceived, hatched, and reach maturity. I fear that
if the proposed settlement is adopted, and the EU and Congress also
fail to restore liberty within global IT markets, that our creative
scientific genius will fail to meet the significant challenges lying
directly in our collective path.
Therefore, from my perspective, the world simply cannot afford
to allow the proposed settlement to stand. It would be more
favorable to risk having an appeal overturned on technical grounds,
and allow the political process to work (or not), than to suffer the
stamp of approval from the very entity charged to defend and protect
us against illegal predatory practices. A portion of the still
untold story of modern predatory strategy, generally speaking, is
just how successful preventative efforts have become with respect to
the invisible potential competition, and that topic is certainly not
limited to Microsoft. Indeed Microsoft is a nascent latecomer in
that regard when compared to the more historically entrenched
vertical industry leaders, revealing another glimpse of why justice
must be served in this case.
I submit to you that a just conclusion to this case is entirely
possible, but a negotiated settlement that provides justice may not
be.
Thank you for your consideration of my views, and God's speed in
your work.
Mark A. Montgomery
Founder/CEO
Global Web Interactive Network LLC
MTC-00027964
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:30pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft, US Justice Department
950 Pennsylvania Avenue, Washington, DC 20530-;0001
Dear Mr. Ashcroft,
I'm glad that a settlement was reached in the antitrust case
between Microsoft, the government and nine states. However, I don't
feel there should have been any litigation in the first place. Free
enterprise should manage itself.
Not only has Microsoft agreed to make sweeping changes so that
to computer manufacturers can configure Windows in order to promote
competitor software programs that compete with programs included in
Windows. They've also agreed to not enter into any agreements
forcing other companies to distribute or promote any Windows
technology exclusively or in a fixed percentage, except for a few
exceptions where there isn't any competition anyway.
It is obvious to me that Microsoft is cooperating so they can go
back to business and help revive the technology sector of the
economy. No more action should be taken at the federal level at all.
Sincerely,
Raymond Fairbanks
MTC-00027965
From: Don Monk
To: Microsoft ATR
Date: 1/28/02 12:28pm
Subject: Microsoft Antitrust Case
Please see attachment.
12 Fortune Cove
Brevard, NC 28712-;9101
January 27, 2002
Attorney General John Ashcroft
United States Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I am writing in regards to the settlement reached in the
antitrust case between the U.S Government and Microsoft in November
of 2001. I am asking you to support the agreement. I do not believe
any further measures are necessary.
As you know, the settlement requires Microsoft to promote
competition from other computer makers. For example, Microsoft must
license its Windows operating system to other computer makers and to
grant them rights to configure Windows to meet other system
specifications. Furthermore, Microsoft has been required to design
further versions of Windows in a manner that would make it easier
for competitors to promote non-Microsoft software within Windows. It
is my opinion that this legislation is sufficient. Microsoft was not
dealt with lightly, and I believe that further litigation would be
less of a productive and more of a vindictive nature.
I am satisfied that Microsoft has been justly dealt with in the
antitrust case. Further litigation would no doubt lead to
restrictions and obligations on products and technologies that did
not fall within the scope of the case. Microsoft has paid its dues
to society; now I ask you to let them get back to business. I
appreciate your taking time to consider my views on the issue.
Sincerely,
Donald W. Monk
MTC-00027966
From: I Y
To: Microsoft ATR
Date: 1/28/02 12:32pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am opposed to such a preposterous solution in regards to the
Proposed Final Judgment in the Microsoft case. Based on past
findings the Court of Appeals has found Microsoft guilty of
violating all rules of the anti trust laws.
Yet the PFJ (Proposed Final Judgment), the Department of Justice
throws out these findings, indicting Microsoft on all charges of
business wrongdoing. More importantly, the PFJ allows Microsoft to
continue with its monopolistic practices. I strongly believe you
will receive similar appeals entailing the numerous errors apparent
in the final settlement. To make a long story short, the PFJ does
not effectively break up Microsoft. But in fact, permits Microsoft
to leverage its current monopoly position and expand its business
into several other technologies markets. In the past most monopolies
were either broken up or carefully regulated. Why not Microsoft?
[[Page 28169]]
Severe reprimands by the DoJ do not drastically alter Microsofts
existing operation methodologies. Time and time again as history
will show, Microsoft will abuse its monopoly position. Breaking up
Microsofts business into several parts just might be the best
antidote to prevent MS from even doing more damage to the industry.
Therefore I submit to you that the Proposed Final Judgment does not
solve the Microsoft issue.
Respectfully,
Dr. Joseph Ortiz
1001 Vine Street
Paso Robles, CA 93446
MTC-00027967
From: Steve Hill
To: Microsoft ATR
Date: 1/28/02 12:31pm
Subject: Microsoft Settlement
Dear Judge,
As a high school student, I look forward to working with
computers. However, Microsoft's recent tactics and monopolistic
tendenencies will hurt competition in the computer industry. This
will cause the quality of computer related software and operating
systems to suffer. The recent settelement between the justice
department and Microsoft will allow this to continue.
Please overturn this settlement.
Stephen Hill
66 Hobson St.
Brighton, MA
MTC-00027968
From: Victor Mieres
To: Microsoft Settlement U.S. Department of Justice
Date: 1/28/02 12:26pm
Subject: Microsoft Settlement
Victor Mieres
3914 Caney Creek Rd
Austin, TX 78732
January 28, 2002
Microsoft Settlement U.S. Department of Justice
Dear Microsoft Settlement U.S. Department of Justice:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Victor Mieres
MTC-00027969
From: jorge godoy
To: Microsoft ATR
Date: 1/28/02 12:31pm
Subject: Microsoft Setlement
I'm faxing my opinion today.
Sincerely
Jorge Godoy
MTC-00027970
From: Robert Sartin
To: Microsoft ATR
Date: 1/28/02 12:33pm
Subject: Microsoft Settlement
I am against the current proposed settlement of the United
States vs. Microsoft case.
I have been programming professionally for 20 years. In
reviewing the terms of the settlement, I am unable to see how the
terms will in any meaningful way improve the competitiveness of the
current environment. The disclosures required by Microsoft are too
weak and the exemptions too great. It will be trivial for Microsoft
to continue to keep secret important information and use it for
unfair competitive advantage. The proposed settlement will
perpetuate an environment in which Microsoft can, and based on past
experience will, withold critical information from developers who
are perceived to be competing with Microsoft. Lack of access to such
information, generally available for other platforms and
specifically available to Microsoft and partner teams working on
similar applications, will prevent a developer from producing
competitive products. Continued tight bundling and coupling of
Microsoft's chosen solutions will prevent new entries into the
market of better technology at lower prices.
Consumers will continue to be forced to purchase and use the
solutions provided by Microsoft. The price we pay will be higher due
to the lack of credible competitive alternatives. Technical
innovation will be decreased because it will not be necessary for
competitiveness. Any settlement in this case must include provisions
that will create a truly competitive environment, including
competitors in the commercial and free software marketplace, and
offer a variety of choices to consumers.
Regards,
Robert Sartin
10412 Ember Glen Drive
Austin, TX 78726
MTC-00027971
From: Faith A Hill
To: Microsoft ATR
Date: 1/28/02 12:33pm
Subject: Microsoft Settlement
Dear Judge,
As a young person, I would like to see growing oppurtunities in
computer choices in my future. Microsoft is a wonderful company
staffed by wonderful people, but they are guilty of anti-competitive
violations. They should be punished according to US laws. If this is
accomplished, it will provide a better and more competive market for
me to enter.
Thank you,
Faith Hill
66 Hobson St.
Boston, MA
MTC-00027972
From: Johan L Lotter
To: Microsoft ATR
Date: 1/28/02 12:34pm
Subject: Microsoft
We attach a letter pertaining to the Settlement. Sincerely, Johan L
Lotter
Lotter Actuarial Partners Inc.
Consulting Actuaries and Project Managers
915 Broadway
New York, NY 10010
TEL (212) 529-;8600
FAX (212) 529-;6297
[email protected]
Web: Iotteract.com
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I have followed the case against Microsoft for the past three
years, watched media coverage from both sides, and I have concluded
that Microsoft, in whatever strong-arm tactics they used, should
never have been punished like this. This is a slap in the face to
one of the most, if not the most, successful companies in history.
In my opinion, the Department of Justice has no right to seek
further legal injunctions against Microsoft. The settlement
Microsoft has proposed, benefits the competition far more than it
should. The best thing for this company, the economy, and the
general public is to settle this case, so that Microsoft can get
back doing what it does best, fulfilling the computing needs of
users. Windows is incredible; there may never be a product quite
like it. I can see how the have-nots want to have a big piece of the
haves. The settlement certainly gives the have-nots what they want
without handing over Microsoft.
I believe that Microsoft is entitled to this settlement in every
way. It appears to be reasonable to Microsoft and more than fair to
the competition. Approving this settlement can do so much good for
the economy, which has been weakened by stresses on our country. I
passionately urge you to agree to settle this case.
Sincerely,
Johan Lotter
President
MTC-00027973
From: Travis Cramer
To: Microsoft ATR
Date: 1/28/02 12:34pm
Subject: Microsoft Settlement
To Whom It May Concern:
I am writing to address the issue surrounding Microsoft, and
their abuse of antitrust laws. In my opinion, Microsoft should not
be able to abuse these laws. First of all, abusing law is illegal,
so the corporation is breaking law. Second, the size of Microsoft is
the closest thing to a monopoly. They have unbelievable power, and
they are making it extremely difficult for any competition to exist.
Our government set
[[Page 28170]]
our economy up in such a way to prevent monopolies from forming.
Microsoft is violating these laws, and that must be stopped.
Microsoft must be kept under the law, punishment of some sort is
necessary.
Thank you for your time on this matter.
Sincerely,
Travis Cramer
1247 W 30th St., Apt. 110
Los Angeles, CA 90007
MTC-00027974
From: T Mac
To: Microsoft ATR
Date: 1/28/02 12:35pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I wanted to state my objection and the error existent in the
Proposed Final Judgment. There are several apparent flaws with in
the final proposal favoring Microsoft. Based on my assessment the
proposed settlement does not dish out any due justice or punishment
on the side of Microsoft. At the same time no devices are in place
to ensure MS compliance to the stated rules enclosed in the
settlement.
Although being closely monitored, Microsoft will not have any
direct supervision to reassure the company complies with the stated
agreement. A three-man compliance team overseeing Microsoft remain
in alignment to the stated rules and regulations. This three-man
oversight team will be composed of the following: one appointee from
the Justice Department, one appointee from Microsoft, and another
appointee chosen by the two existing members. In turn, Microsoft
will control half of the oversight team. All findings by this
committee will not be allowed into court. The sole purpose for such
a committee is to inform the Justice Department of all infractions
committed by Microsoft. Subsequently the Justice Depart will launch
its own investigation into the matter and commence litigation to
halt all infractions. When all is said and done, the oversight
committee is just window dressing. In turn, who will not strictly
oversee Microsofts business moves? In my opinion, the Proposed Final
Judgment does not provide sufficient and appropriate restrictions or
penalties against Microsoft. What reassurance do we have against
Microsofts illegal and illicit activities? I can assure you that the
Proposed Final Judgment does not effectively address the question. I
object to the Proposed Final Judgment.
Respectfully,
Janice Ortiz
1001 Vine St.
Paso Robles, CA 93446
MTC-00027975
From: earl g harper
To: Microsoft ATR
Date: 1/28/02 12:34pm
Subject: Microsoft Settlement
Gentlemen:
It is time to stop the harrasement of Microsoft by dragging out
the legal battle.
This will not benefit them or us tax payers...only add bragging
rights to some politcal hacks...and the special interest groups..
Enough is enough..let's get on with business and let Microsoft do
the same.
Earl G. Harpor
1430 Regency Drive
Ft. Collins, CO
THE HOUSE OF HARPERS
INDJC
Numbers 6: 24-;26 & Rev. 14:2
MTC-00027976
From: iBradley
To: Microsoft ATR
Date: 1/28/02 12:34pm
Subject: microsoft settlement
Dear Renata B. Hesse Antitrust Division U.S. Department of
Justice and appointed Judge;
I'll get right to the point, microsoft is about as unamerican
and anti-competitive and consumer as ever there was a corporation.
They've lied under oath, they've lied to their customers and they've
lied to corporate investors. Their total motivation for any and
everything they do or will ever do is about GREED, cash flow and
bill gates, at whatever the cost to the consumer and customer.
They've proven that microsoft suppressed technology by using their
power and influence to intimidate. USB technology developed by intel
corporation for one. If Apple hadn't built USB into the iMac when it
was first introduced and now has become a standard for add-ons, I
believe it would still be suppressed today. microsoft has never been
honest with those who've purchased their OS! window's has never run
or operated as they've claimed. It's not nor has it ever been or
ever will be secure or stable! xp their latest release has been
heralded to be the most ``Stable and Secure OS they've ever
produced! It's better then previous, and that much is somewhat true.
But it's far from stable or secure. It has failed to live up to it's
claims. The in-store sales say it all to well, It's selling far
below previous releases, this is a good sign that the consumer is
finally seeing microsoft with ``Eyes wide open instead of Eyes
wide shut! But even so it's to late for those who've bought into the
lies and are now victims of false marketing and advertising hype.
The countless virus attacks and hacks to their online service and
severs, prove their statements of ``Stable and Secure are
rendered mute.
I'm not nor have I, nor will I ever be an owner of anything with
windows as an OS. I don't support anything wintel! (that's a PC
running an intel processor with window's OS by microsoft) 95% of the
computer market worldwide uses microsoft window's. 51% or above in
my estimations would be considered a MONOPOLY! microsoft's .Net,
licensing of software (taking away ownership and replacing with
leasing) and Passport initiatives is a clear attempt at Corporate
slavery and an invasion of our personal privacy! These initiatives
are DRONE driven! USE microsoft TECHNOLOGY, AND ONLY microsoft!
Where's the consumer's FREEDOM of CHOICE here? It's already been
proven what bill gates said when he saw Apples Mac OS with GUI
(Graphic User Interface). His words go something like this: bill, I
want it! paul, That's stealing bill! bill, I don't care! I want it,
this is what I WANT! window's is about 98% similar to the Mac OS. If
you're familiar with the Mac OS and you saw window's or use it, you
know all to well that the truth behind window's is Apple's Mac OS.
To quote a friend of mine's son when he first saw window's 95,
``It looks just like the Mac's we use at school! He turned said
Huh! And walked away. If it's that clear to a child, what's wrong
with the adults in public, political and corporate America?!
I never have nor will I ever like microsoft! I believe there is
at the heart of this company, something very WRONG and DARK and
definitely not GODLY! I believe their motives are based and rooted
in pure corrupt business practices. The only shining light of Good
within the Black on Black existence that is microsoft, is the
Macintosh Design Department! There is a saying, ``Sometimes you
have to go through hell to get to Heaven.'' The only thing
you'll find on the other side of microsoft is pure darkness.
microsoft should be hit hard and deep, hit where it will hurt the
most and that being in REAL CASH outlays in the amount of 33 billion
dollars. This amount would be for all the States involved in the
lawsuit, the consumers hurt by microsoft's Monopolistic practices,
Corporate businesses, some should go to ``Homeland Security
Initiative and finally 7 billion dollars set aside through a Private
Organization and distributed for use in Private and Public Schools
who need it for use where they feel it is best used and on whatever
OS or Computer (Apple) they deem appropriate for the benefit of
their Teachers and Students! If microsoft isn't reprimanded severely
for their illegal activities through REAL CASH outlays that are made
payable within one year of settlement, and hits them where it hurts!
They will never stop doing what they do! BREAK the LAW! NOBODY IS
ABOVE THE LAW! (The Enron disaster is evidence enough for that!)
microsoft will just keep pushing the envelope of illegal activity,
simply because they think they can! This time they can't be ALLOWED
to get off with a slap on the hand, even if those in power say
``It could be damaging to the economy!'' That argument
doesn't hold any water anymore! Not after the events of September
11th and the resulting effects on the economy thus far. In closing;
I don't hold any respect for bill gates or steve balmer, nor should
anyone! They haven't earned it as individuals or a company, nor do
they deserve it! They're not nor is microsoft a Good example of Good
Business or Corporate ethics for the youth to look up to and learn
from! microsoft has done everything wrong from a moral and ethical
perspective. Thank you.
Take Care;
Bradley R Johnson
MTC-00027977
From: A. W. Dalgleish co.
To: Microsoft ATR
Date: 1/28/02 12:34pm
Subject: Microsoft settlement
East Aurora, NY 14052
11738 Liberia Road
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
[[Page 28171]]
I am writing you today to inform you of my opinion in regards to
the Microsoft settlement issue. I support the settlement that was
reached in November, and I oppose any further action against
Microsoft at the federal level.
This settlement is fair and will be sufficient to deal with the
original issues of this lawsuit. Microsoft has agreed to all terms
and conditions of this agreement. Under this agreement, Microsoft
must share more information with other companies regarding certain
internal interfaces included within Windows and any protocols
implemented in Windows operating system products. Microsoft has also
agreed to be monitored by a technical oversight committee for
compliance.
Microsoft has done so much to contribute to our daily lives, in
the office and at home. To stifle or restrict this company would be
a huge injustice to consumers and will do nothing to stimulate our
lagging economy. I urge you to support this settlement so
Microsoft's resources and talent can be fully devoted to designing
their innovative software, rather than litigation. Thank you for
your time.
Sincerely,
James Jaremka (Microsoft shareholder and registered Republican)
MTC-00027978
From: Bob Blake
To: Microsoft ATR
Date: 1/28/02 12:37pm
Subject: MICROSOFT SETTLEMENT
13 Ethel Avenue
Peabody, MA 01960
January 27,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Three years ago, Microsoft was brought to trial for antitrust
violations. I have been of the opinion from the start that this has
been a false case. Federal antitrust laws are stifling in a global
market. Microsoft has never presented a threat to the consumer by
using its market dominance to raise prices or to offer a shoddy
product. Microsoft would never have been so successful if the
consumer had not been satisfied with its actions. Now Microsoft's
competitors are upset because they are unable to pry consumers away
from Microsoft. They instigated the case in the first place, and now
they are seeking to overturn the settlement and bring additional
litigation against Microsoft.
I do not believe it is necessary to bring additional litigation
against Microsoft. By doing so, these states are essentially
crippling America. Foreign competitors are not subject to the same
laws that American businesses are, and all this infighting is making
the American market vulnerable to foreign interests.
Putting reins on Microsoft's behavior is the same as encouraging
foreign competitors to step in. The settlement should be finalized
as soon as possible, for the good of the economy, the industry, and
the consumer. The settlement allows Microsoft to remain intact,
which is, I believe, wise. It also gives Microsoft's competitors a
chance to work with Microsoft as well as compete directly. For
example, Microsoft has agreed to provide its competitors with source
code integral to the Windows operating system so that they will be
able to operate within the Microsoft framework. Microsoft also plans
to reformat upcoming versions of Windows so that the operating
system will support non-Microsoft software.
Microsoft's competitors are not going to gain any greater
advantage by continuing litigation. In fact, it is quite possible
that they will end up doing America more harm than good. I ask you
to support the finalization of the settlement.
Sincerely,
Robert Blake Jr
MTC-00027979
From: peter kloss (BITS)
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:34pm
Subject: Microsoft Settlement
The following is the personal opinion of Peter B Kloss and is
not the opinion in any shape or form of his employers, the BBSRC
(Biotechnology and Bioscience IT Services)
Dear Sir
I do not know whether non US nationals are allowed to comment on
this case. however, what happens in this case will have an enormous
influence on what happens elsewhere, so I hope I am permitted to
comment.
I am concerned that the settlement will not do what it is
intended to do, that is, restrict the predatory behaviour of
Microsoft. The nature of the exception clauses in the current
agreement makes it possible for MS to continue to do whatever they
want without hindrance. I think this is a bad thing to do and a bad
message to give.
It is important that while Microsoft have this overarching
dominant postion that the interests of the public and consumer are
properly protected. This is particularly in the area of
choice--;Microsoft have continually complained that restrictions
on them will inhibit ``innovation'' and choice. however,
history teaches us that Microsoft have hardly ever innovated and
have acted in a way to restrict choice for OEMs, business customers
and consumers like to their advantage.
Let us take innovation: It is true that most OS and application
``innovations'' have been either bought in or copied from
third parties:
DOS--;bought from a third party
Windows (the concept)--;from Xerox and Apple
Excel--;bought in from a third party
Windows 95 GUI details--;copied from Apple in many places
(eg the keyboard short cuts)
Explorer, Web Browsing--;copied the concept from NCSA,
Netscape etc
Additional features in windows XP such as CD burning, camera
connection and video editing--;a straight copy of advanced
features in Apple's MacOS
As for choice: In most respects Microsoft's leveraging of their
position has restricted choice by squeezing out competitors and
competing products.
A loss strongly felt personally was that Aldus once made an
excellent presentation package called Persuasion. It is now a
discontinued product because Aldus could not justify continuing
marketing and developing the product in the face of PowerPoint being
given away free by Microsoft with MS Office. This is classic
predatory pricing killing off a product which was superior in every
respect.
A more recent case is the free bundling of Internet Explorer and
Internet Information Server with desktop and Server OS to the
detriment of competitors such as Netscape and many other smaller but
genuinely innovative companies. a recent scandal was the attempt by
Microsoft to block access to their Web sites by non--;MS
browsers on the grounds that they were not ``standards''
compliant. This was strongly contested by suppliers such as Opera
Software and Microsoft had to grudgingly relent. but this attempt is
only the tip of an iceberg in which MS try to persuade us that their
browser is the standard by brute force. This must also be seen in
the context that both browser and server are notorious security
risks, in part due to the insecure architecture inherent in
operating systems and applications supplied by Microsoft.
Furthermore it is also true that Microsoft devote more attention
to adding features to their products in an attempt to crush
competing products than they do to fixing long existing problems,
for example, Excel still has a number of arithmetic bugs which have
existed from before version 4 which have never been fixed.
Even now, Microsoft are attempting to extend their grip in other
areas to the detriment of consumer and business choice: In the area
of network validation of personal credentials with the proprietry
``Passport'' authentication system In the area of video
streaming delivery with bundling of ``Windows Media
Player'' to the detriment of Real Inc's Real Player and Apple
computer's Quicktime (a genuine standard)
In the area of on-line music delivery by attempting to corner
the market with windows specific server and delivery technologies In
the area of home automation and device control with embedded OS
products I have not even touched on Microsoft's attitude towards
OEMS, competing OS suppliers etc ..
This kind of behaviour is structural in a provenly monopolistic
company. Remedies must be strong to correct this behaviour and I
urge the DOJ to rethink its compromises to ensure that restrictions
and punishments are appropriate to yield better behaviour. To be
truthful, with the current huge market penetration of MS products,
restrictions will not hurt the company for a long time to come. When
they do, it will becuase genuinely innovative and superior products
have taken a hold.
The fact is that in many areas where Microsoft have obtained an
almost complete grip of the market they exhibit genuine monopolistic
behaviour--; such as many price increases forced on business
users through less favourable bulk licensing schemes recently
introduced. It is only a matter of time before this is attempted in
other areas.
[[Page 28172]]
Microsoft has been legally proved to be a monopoly and to have
abused its position--;please treat it as such with remedies that
bite.
Thank you for listening to me
with kind regards, Peter Kloss
MTC-00027980
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:36pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;000
2002-;01-;28
Dear Renata B. Hesse:
I do not believe that the proposed Microsoft settlement is
appropriate. I believe there are numerous problems, however, I will
only comment on a couple of items here.
Without any requirement that Microsoft provide detailed data
file documentation on its application files (for example, the
internal format of a .DOC file) there is no hope for inter
operability between Microsoft and other potential software
suppliers.
The same applies to Microsoft's operating system interface.
Without proper documentation of the interface, all the interface,
and a constraint that Microsoft may not use undocumented interfaces,
other software developers will never be able to produce software
that is competitive and will not be independent of changes made,
perhaps deliberately, to the os interface that are detrimental to
the proper functioning of applications.
May thanks for your time.
Regards,
David Beausang
MTC-00027981
From: Joe Brady
To: Microsoft ATR
Date: 1/28/02 12:36pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
Washington, DC 20530
Dear Mr. Ashcroft,
This lawsuit against Microsoft has proven to be more contentious
than most would have anticipated. Its effects have been felt in a
slowing down of consumer purchases of computer products due in part
to an increased sense of anxiety on the part of the buying public.
It is for this reason that the settlement recently negotiated
between Microsoft and the government is good. While I am not too
familiar with the specific terms of the settlement, other than that
it mandates changes in the way Microsoft licenses its software to
OEMs, among other things, since both sides have agreed, then the
public litigation is at long last at an end.
I am writing to express my support of this settlement, along
with my hope that any further federal action will be unnecessary.
Sincerely,
Joseph Brady
President
MTC-00027982
From: Marty Leisner
To: Microsoft ATR
Date: 1/28/02 12:35pm
Subject: Microsoft Settlement
I wish to comment on the Proposed Microsoft Antitrust Settlement
via the Tunney Act. I'm a professional software developer with Xerox
Corporation. I have been developing software for over 20 years. I
have seen the industry change over 20 years--;while the hardware
has improved by orders of magnitude, software is a mixed
bag--;some chores are harder to accomplish (and sometimes take
longer) than 20 years ago. One thing that has changed is the growth
of the computer industry and the PC on every desk. Almost every PC
runs microsoft software. I've been following the Microsoft-DOJ
debacle with interest for years. I develop free software. I try to
use products which work and which I can customize--;it turns out
I try not to use microsoft products. I do not want to live in a
world where I have to use microsoft products to interact with other
people. I have no problem if microsoft defines file formats and
networking standards, as long as they are public and correct. The
proposed settlement does not appear to address this. As a free
software developer software developer, am I entitled to rights as a
third party? Software is a new and unique creation. I think its
important to have a resolution of this case which actually
encourages competiting products (both free and commercial). Dan
Kegel's critque is well thought out. I endorse it and urge you to
read it: http://www.kegel.com/remedy/remedy2.html
I also endorse Ralph Nader and James Love's views as: http://
www.cptech.org/at/ms/rnjl2kollarkotellynov501.html
Thank you,
Martin Leisner
332 Shaftsbury Road
Rochester, New York 14610
Free Software Writer/User
MTC-00027983
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:39pm
Subject: Microsoft Settlement
I am forwarding this letter, since I strongly concur with it's
premise.
thank you
Karl Heimberger [[email protected]]
1 VAN DYKE PLACE
STONY BROOK, NEW YORK 11790
January 24, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
This letter is in support of the settlement with Microsoft. We
must stop wasting money on unnecessary litigation and concentrate
our resources on matters that actually need more action. Let's move
forward, not backward.
This settlement allows us to go forward and end the waste.
Microsoft has agreed not to retaliate against computer makers who
ship software that competes with anything in Windows. Plus,
Microsoft has agreed to design future versions of Windows so that
computer makers and consumers can easily promote non-Microsoft
software within Windows. Finally, Microsoft has agreed not to enter
into agreements with other companies to promote any Windows
technology exclusively. All these will be enforced by a new federal
government commission.
The most impressive aspect of the settlement is that it even
applies to Microsoft products that were not at issue in the lawsuit.
This agreement is fair and reasonable, and it will clearly prevent
future anticompetitive behavior. We must accept this settlement and
allow the IT industry to concentrate on business as soon as
possible.
Sincerely,
Karl Heimberger
MTC-00027984
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 12:37pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Joseph Pemberton
609 Danbridge Drive
Hixson, TN 37343
MTC-00027985
From: John W. Manhollan
To: Microsoft ATR
Date: 1/28/02 12:46pm
Subject: Microsoft Settlement
To Whom It May Concern:
I believe that the proposed settlement is problematic for two
reasons:
1. The settlement furthers Microsoft's strangle hold on the
desktop platform by seeding into thousands of locations where
impressionable youngsters will have access to only the Windows
environment and thereby influence their future purchases.
2. The settlement only benefits a small number of the
individuals who would have been harmed by Microsoft's blatant
disregard of the results caused by its business strategy. America's
school children of today were not the consumers affected by
Microsoft's practices.
Thank you for your time and interest in my comments.
Sincerely,
John W. Manhollan, Technology Coordinator
[[Page 28173]]
West Middlesex Area School District
3591 Sharon Road
West Middlesex, PA 16159
v: 724.528.2002 x122
f: 724.528.0380
The directions said, ``Requires Windows 98 or
better.'' So I bought a Macintosh.
MTC-00027986
From: Fred Nugen
To: Microsoft ATR
Date: 1/28/02 12:42pm
Subject: Microsoft Settlement
As a United States citizen, I urge you to withdraw your consent
to the revised proposed Final Judgment settlement in the United
States v. Microsoft Corp. antitrust case. The limitations and
punishments imposed upon Microsoft do not sufficiently restore the
competitive conditions previailing prior to Microsoft's unlawful
conduct. The Settlement only prevents Microsoft from future
monopolistic practices; it does not punish Microsoft for previous
unlawful behavior. The advantages of immediacy and certainty of the
proposed Final Judgment are not sufficient cause for abandonment of
pursuit of further litigation.
I urge you to pursue litigation of the issue of remedy, whether
as set forth in the Final Judgement entered by the District Court on
June 7, 2000, or as one of the other remedy proposals described in
the Competitive Impact Statement, section (V) Alternatives to the
Proposed Final Judgement.
Fred Nugen
407 W 18th #207
Austin, TX 78701
512.478.9617
MTC-00027987
From: Altes, James
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:44pm
Subject: Microsoft Settlement
It is my opinion that his is not a good idea, will only increase
Monoply status of MicroSoft.
James Altes
Electronic Publishing Specialist
The American National Red Cross
202.639.3236
[email protected]
Together, we can save a life
MTC-00027988
From: Thomas Allbee
To: Microsoft ATR
Date: 1/28/02 12:42pm
Subject: Microsoft Settlement
Thomas Allbee
16870 SW Camino Drive
Tigard, Oregon 97224
503-;624-;9431
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am sending you this brief letter in hopes of adding my
sentiments to those millions who would like to see an end to the
Microsoft case. This litigation has stymied an entire industry and
contributed to our general economic malaise. There is no further
reason to prolong the resolution of this case. I hope you will use
your office and influence to see it settled soon. By the terms of
the proposed settlement plan, Microsoft will endeavor to actively
undermine its own predominance in the IT industry. It has agreed to
surrender its past practice of demanding exclusive domain over
software in its Windows platforms. It has even agreed to render its
Windows platforms in configurations that invite the use of non-
Microsoft software. It has agreed to open its technology to
exploitation by its competitors. It has, in fact, agreed to
facilitate competition.
These and other concessions validate Microsoft's claim to desire
an open and fair playing field in the industry. Microsoft deserves
this settlement and so does the country.
Sincerely,
Thomas Allbee
MTC-00027989
From: O M
To: Microsoft ATR
Date: 1/28/02 12:43pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I oppose the Proposed Final Judgment in relations to the
Microsoft case. As one can plainly see, Microsoft continues to
violate business practices. The Proposed Final Judgment does not
punish Microsoft for its past violations to the anti-trust laws.
With out a doubt, Microsoft is guilty of breaking several anti-
trust laws. Under the final settlement, Microsoft is permitted to
retain most if not all profits gained through their illicit
activities. Subsequently, the PFJ will not compensate parties
injured or harmed through Microsofts egregious misdeeds.
In addition, the PFJ will not take into account all Microsoft
gains made through its illegal maneuverings. With all due respect,
the final settlement is basically acknowledging the acceptance of
Microsofts anti-competitive behavior. What kind of message does this
send out to the public? I can assure you that the message is clear
and simple.
The PFJ encourages big corporations to engage in monopolistic
and predatory conduct, which in turn is detrimental to the
technology industry at large. With all due respect your honor, I am
outraged at such a preposterous proposal that only helps Microsoft
to remain intact and continue with its unethical practices. In
conclusion I submit to you my objection to this Proposed Final
Judgment.
Respectfully,
Dr. Marylin Ortiz
1001 Vine St.
Paso Robles, CA 93446
MTC-00027990
From: Laura Akers
To: Microsoft ATR
Date: 1/28/02 12:43pm
Subject: Microsoft Settlement
I oppose the current settlement with Microsoft as not
acknowledging and supporting the ability of other organizations,
such as those staffed by volunteers, to compete.
Laura Akers
Oregon Research Institute
[email protected]
MTC-00027991
From: Jeanette Gonzales
To: Microsoft ATR
Date: 1/28/02 12:45pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I'm writing to you as a Supporter the Free Market. Recently it
was brought to my attention that over the past 3 years every federal
court that has reviewed the Microsoft antitrust case has found that
Microsoft repeatedly and aggressively violated U.S. antitrust laws
and was liable for its illegal conduct. It was also surprising to
know that the Justice Department had announced that it had cut a
back-room deal (the Proposed Final Judgement) with Microsoft that
granted Microsoft a government mandated monopoly that threatened to
destroy any and all serious Microsoft competitors. How can this be
allowed to happen? Why here, in a free capitalist country, is it
permitted to allow a company like Microsoft infringe the rights of
consumers and competitors everywhere. Men have gone before us, seen
the issue, and have made a way so that the rights of consumers and
other competitors were protected. So why now is there an exception
to the rule to let Microsoft be allowed to abuse antitrust laws?
Sure the name Microsoft has prestige, and people trust in the
company's quality, however no good can ever come of a monopoly. That
is why the Tunney Act passed by Congress is so vital because it
ensures that all antitrust settlements proposed by the Justice
Department are not ``contrary to the public interest.''
Believe me, the public interest wants to see the Microsoft
Industry put to a stop before it completely wipes out all of its
competitors--;other defenders and leaders of the free world.
Sincerely,
Jeanette Gonzales
[email protected]
MTC-00027992
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:46pm
Subject: Microsoft comments
My inputs on the Microsoft matter.
I am a patent attorney, and I take my responsibilities very
seriously, of course. I have seen several cases of hackers
penetrating Microsoft systems, such as at a law firm I was
associated with until recently. While most attacks seemed to be
intent on corrupting files, there were some attacks that I am
convinced could have and may have resulted in data being taken.
I am unwilling to expose my clients to such risks, especially
since I believe the Microsoft XP OS has the capability of allowing
?someone?, such as at Microsoft, to copy data off your system with
no indication to the owner. I am changing to Linux, and I find that
most companies that offer software packages that run on Microsoft OS
systems are discontinuing support for other than Microsoft systems
(the exception is Apple, which depends on Microsoft investment and
[[Page 28174]]
help for their existence). In fact, since Apple has a Linux-type
system and IS supported, it appears that the decision by these
companies not to support other Linux-type systems has no legitimate
purpose. The companies I refer to that are moving to Microsoft-Apple
support only are Adobe, the Acrobat product, and the various
companies that make .TIFF readers. I need both .PDF (Adobe Acrobat)
and .TIFF for my patent work, and I find that to have them I must
use an OS from Microsoft. Even Mapquest, where I have been getting
map data, gives very unsatisfactory results on other than Internet
Explorer. By unsatisfactory, I mean the results on other than
Internet Explorer are such as to indicate sabotage of the Microsoft
competitors.
I feel I must not expose my clients to the hazards of a
Microsoft system, but I find that Microsoft, directly or through
companies that depend on Microsoft, is poisoning all competing
systems. I hear even WordPerfect, a clearly superior word processor,
is ?on the ropes? due to Microsoft's tactics.
I would like to sue Microsoft. Can you provide any help?
Marion E. Cavanaugh, patent attorney
720 Promontory Point Lane
Suite 2203
Foster City, CA 94404-;4025
800.954.2277
650.578.0692
650.533.4363 (cell)
650.572.2370 (fax)
CC:[email protected]@
inetgw
MTC-00027993
From: Dolly Waters
To: Microsoft ATR
Date: 1/28/02 12:45pm
Subject: Microsoft settlement Please read.
THIS ELECTRONIC MAIL MESSAGE AND ANY ATTACHMENT IS CONFIDENTIAL
AND MAY CONTAIN ATTORNEY PRIVILEGED INFORMATION INTENDED ONLY FOR
THE USE OF THE INDIVIDUAL OR INDIVIDUALS NAMED ABOVE.
If the reader is not the intended recipient, or the employee or
agent responsible to deliver it to the intended recipient, you are
hereby notified that any dissemination, distribution or copying of
this communication is strictly prohibited. If you have received this
communication in error, please reply to the sender to notify us of
the error and delete the original message. Thank You.
Dolly Waters
43 Webster Avenue
Manhasset, NY 11030
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft: I did not agree with the federal government's
decision to sue Microsoft, and I am glad to see the two sides have
reached a settlement. Microsoft is a strong and successful company
because it develops the best products for the industry, and k is
time to start spending the government's money on more important
issues than trying to hinder this company's success. Microsoft has
agreed to change its business operations so that competition will
increase in the technology industry. The company will design future
versions of its Windows operating system so that computer makers can
promote non-Microsoft software within Windows. Microsoft has also
agreed not to retaliate against computer makers that ship software
that competes with anything in Windows. This settlement was reached
after many long and costly hours of litigation, and extensive
negotiations. It is fair and reasonable, and k should be finalized
as soon as possible.
Settling now will benefit consumers and the industry, and this
was what the government sought from the beginning. The American
economy needs a boost right now, and stopping this litigation is a
great step in the right direction.
Sincerely,
Dolly Waters
MTC-00027994
From: Henning Dalgaard Jeppesen TACDk
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:47pm
Subject: Microsoft Settlement I don't agree
MTC-00027995
From: c c
To: Microsoft ATR
Date: 1/28/02 12:49pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally-
I am stating my objection to the Proposed Final Judgment. Most
honorable one, I implore you to see the true facts in the matter and
judge accordingly. In the past week it has been brought to my
attention an interesting development in the case involving the
Department of Justice and Microsoft. A Final Settlement has been
reached between the two parties, which will supposedly end the
never-ending fiasco. Yet astoundingly enough based on my
understanding and the information provided to me, the Proposed Final
Judgment would overturn findings by the U.S. Court of Appeals
indicts Microsoft on violating antitrust laws. After further review
of the proposed settlement I find it hard to believe the Justice
Department would withdraw their charges against Microsoft. In fact,
based on the assessments made on the proposal, Microsoft will go
scotch free from any charges of wrong doing in the matter. How can
this be? There are several glaring flaws in the PFJ. However, non-so
more apparent than allowing an absentee landlord to govern
Microsoft. With all due respect, the final settlement provides no
security to restrict MS from breaking any laws in the future. In my
humble yet accurate opinion, the future governing body, implementing
certain rules or regulations and forcing MS to adhere by them, will
not be stringent nor forceful enough to make any dramatic changes.
Similarly, I am not convinced that these stiff penalties applied to
MS will ensure the security and future growth of other companies, A
stiffer penalty and a whole new framework of laws must be
established to justly punish MS. The Proposed Final Judgment
abstains from such justification and order. Therefore I object to
the stated Proposed Final Judgment.
Sincerely,
Dr. Romeo Ortiz
1001 Vine Street
Paso Robles, CA 93446
MTC-00027996
From: C. Scott Ananian
To: Microsoft ATR
Date: 1/28/02 12:50pm
Subject: Microsoft Settlement.
I am a graduate student at MIT, and author and maintainer of
many commonly-used ``open source'' applications[*]. I have
also contributed code to the Linux kernel that is used by millions
of people every day. I wish to express my dissatisfaction with the
terms of the DOJ/Microsoft settlement. It does not, in my opinion,
serve the public interest and provide remedy for the anti-
competitive actions of the monopolist. In particular, I urge a
closer examination of how the terms of the proposed settlement
impact *non-profit* competitive entities; as a case study you might
want to examine the Apache foundation (www.apache.org), which
produces the *only* web server which is a real competitive threat to
Microsoft at this time. The terms of the agreement, by letting
Microsoft decide what constitutes a ``real business'',
threaten to exclude independent developers and non-profits like the
Apache foundation from the disclosures (API and otherwise) which the
settlement hopes will place a check on Microsoft. In this way,
Microsoft may actually be able to edge out its last remaining
competition from the marketplace --;- certainly not the result
the DOJ intends, and certainly not in the public interest. As an
independent developer who has written (for example) a competitive
reimplementation of Microsoft's PPTP protocol *without benefit of
any information from Microsoft* and who would almost certainly *not*
qualify for API disclosure however Microsoft decides to define
``viable business'', I have a personal interest in seeing
this settlement loophole closed. And on behalf of the many people
who have used my software, I can state definitively that there is a
public interest in allowing developers like myself to compete with
Microsoft.
Thank you.
C. Scott Ananian
305 Memorial Drive
Cambridge, MA 02139
[*] More correctly called ``free software'', with the
``free'' referring to freedom, not to price. In fact you
are allowed to charge whatever you like for ``free
software'', provided you do not restrict the purchaser's
ability to make use of it in various specified ways.
MTC-00027997
From: Tom Gardner
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 12:45pm
Subject: Microsoft Relief
To whom it may concern:
It appears to me that a great deal of Microsoft's market power
comes from its policy of leasing its software and then using the
copyright laws to enforce anticompetitive requirements. May I
suggest that Microsoft be required to sell its software and thereby
relinquish relevent copyright rights, much as a book seller
relinquishes such rights upon sale of a book. Customers, such as PC
[[Page 28175]]
manufacturers, would then be free to alter Micorosoft products to
provide additional value to the end using consumer.
Microsoft will argue that any such alterations to the software
will then make the product not maintainable and thereby void its
warranty. While in the limit this is indeed possible, it practice
most alterations would have little impact upon maintainability.
Microsoft should therefore be also required to maintain any altered
product unless and until it can show beyond reasonable doubt that
such maintenance is an unreasonable commericial endeavor.
I have participated in the computer industry since 1968 and have
at various companies been involved in the selling of hardware and
software to PC manufacturers and PC end users. I testified for the
people in US vs. IBM on software interface manipulation as an anti-
competitive tactic.
The opinions expressed above are mine alone, and not necessarily
those of any service provider enabling the transmission of this
email.
Thomas E. Gardner
(650) 941-;5324
[email protected]
MTC-00027998
From: Cherry
To: Microsoft ATR
Date: 1/28/02 12:48pm
Subject: Microsoft
I would like to see this suit finalized as soon as possible.
Sincerely,
Cherry S. Garrison
Pendleton, South Carolina
MTC-00027999
From: Jonathan Doughty
To: Microsoft ATR
Date: 1/28/02 12:50pm
Subject: Microsoft Settlement
TO:
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
FROM:
Jonathan Doughty
9701 Rhapsody Drive
Vienna, VA, 22181
I urge you to reject the Proposed Final Judgement (PFJ) and
replace it with one that is simpler to test Microsoft's adherence
to, allows for the full range of competitors to Microsoft's
practices including explicitly addressing open source alternatives,
and better protects consumers from being the continuing victims of
Microsoft's monopolistic practices.
The PFJ does not, as stated in the Competitive Impact Statement
provide ``prompt, certain and effective remedies for
consumers.'' Nor will the PFJ ``eliminate Microsoft's
illegal practices, prevent recurrence of the same or similar
practices, and restore the competitive threat that middleware
products posed prior to Microsoft's unlawful undertakings'' as
also stipulated in that statement.
Microsoft has shown by past and current monopolist behavior, by
its tactics of embracing and extending technology in ways that force
consumers to use and upgrade only its products (e.g., their
extensions to the Kerberos security protocols), by selectively
incorporating technology that in some cases it has appropriated from
competitors into its operating system (e.g., Stac Electronics disk
compression and Mosaic browser-based technology), and by adding code
into their operating systems and middleware that unfairly targets
competitors products (e.g, the DR/DOS code added to Windows 3.1 and
the way in which consumers were steered away from Kodak applications
for digital photography in the just released Windows XP) that they
actively work against consumer choice.
The PFJ does not ensure ``computer manufacturers have
contractual and economic freedom to make decisions about
distributing and supporting non-Microsoft middleware products
without fear of coercion or retaliation by Microsoft'' because
it specifically allows Microsoft to enforce ``any provision of
any license with any OEM or any intellectual property right that is
not inconsistent with'' the PFJ. One can already find examples
of a variety of Microsoft End User Licensing Agreements (EULA) in
which Microsoft has forced consumers and OEMs to accept agreements
that effectively tie use of Microsoft products to its middleware and
operating systems and restrict the consumers right to substitute
competitive technology.
The PFJ does not ensure ``that computer manufacturers have
the freedom to configure the personal computers they sell to feature
and promote non-Microsoft middleware, and ensuring that developers
of these alternatives to Microsoft products are able to feature
those products on personal computers, by prohibiting Microsoft from
restricting computer manufacturers'' ability to install and
feature non-Microsoft middleware and competing operating systems in
a variety of ways on the desktop and elsewhere.'' Microsoft has
already demonstrated they have no intent to adhere to this
restriction by insisting, prior to the release of Windows XP, that
their own products be given equal display on the desktop to
competitive alternatives.
Finally, Microsoft has shown by its behavior of rushing products
to market to further extend its monopolies, while continually
delaying and extending the trials that might restrict that behavior,
that it has no intention of modifying the past behaviors with which
it has so successfully eliminated competition and restricted
consumer choice. The PFJ is riddled with loopholes, more even than
the 1994 consent decree that Microsoft flaunted the intent of, while
at the same time providing cover for Microsoft to browbeat
competitors with the very language that is supposed to protect those
competitors. For example, the PFJ's wording explicitly excludes
Microsoft from having to deal with the one consumer alternative that
Microsoft has recently shown the most fear of, the open source
movement, by explicitly allowing Microsoft to condition the release
of documentation of its APIs and communications protocols based on
Microsoft's own judgement that the third party ``meets
reasonable, objective standards established by Microsoft for
certifying the authenticity and viability of its business.''
The PFJ states ``Microsoft shall begin complying with the
revised proposed Final Judgment as it was in full force and effect
starting on December 16, 2001.'' I believe a court interested
in ensuring consumers'' choice would agree that Microsoft's
actions since the release of the PFJ on November 6, 2001 with
respect to their .NET initiative, their attempts through
orchestrated ``grass roots'' campaigns to influence the
outcome of the court and legislative inquiries into their
activities, the security of their existing products in maintaining
consumers privacy and Microsoft's lack of ability to protect that
trust, and their attempts to advance their monopolies into other
markets (e.g., gaming devices and multimedia) demonstrate that
Microsoft's is already flaunting the intent of the PFJ just as it
has in the past flaunted the intent of other consent decrees.
Jonathan Doughty
MTC-00028000
From: Robert G. Prickett
To: Microsoft ATR
Date: 1/28/02 12:49pm
Subject: Microsoft Settlement
This vendetta by jealous competitors has got to be stopped. I
have watched over the years and only commented to friends how
Microsoft is being attacked by companies who want the U. S.
Government to make their businesses flourish without working hard
for it.
Call the dogs off. They have treed enough ghosts.
Robert G. Prickett
MTC-00028001
From: Douglas Lewan
To: Microsoft ATR
Date: 1/28/02 12:52pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
2002 January 28
Douglas Lewan
10 Fredwood Pl.
Matawan, NJ 07747
Please accept the following comments regarding the Revised
Proposed Final Judgement published by the DOJ at http://
www.usdoj.gov/atr/cases/f9400/9495.htm .
I agree with the obvious implied spirit of the Final Judgement.
However, I believe it fails to truly attain that spirit in practice
in several ways, the most important of which I discuss below.
Sections III.D and III.E regarding scheduling the publication of
APIs and protocols:
These two sections fail to meet the spirit of the Final
Judgement in two important ways.
First, the schedules based on delays of 9 and 12 months
respectively would place publication of those APIs and protocols
about halfway Microsoft's own development and deployment cycle.
Vendors who could benefit from using those APIs and protocols
[[Page 28176]]
would thus only be able to deploy products with them as Microsoft
has new products looming on the horizon.
Second, the publication mechanisms specified in those two
sections remain far too closed to foster competition outside of
Microsoft controlled circles.
Publication of APIs as specified in III.D would be only to a
select audience and only by the purchase of the MSDN (currently at a
cost of between $1000 and $3000). That publication should be
entirely public, possibly through a recognized standards body like
ISO, ANSI or the IEEE.
Otherwise Microsoft will continue to wield essential absolute
control over those APIs and their use.
Similar arguments apply to the publication of protocols.
With regard to protocols and ``interoperating with a
Windows Operating System Product'' it should be recognized that
all file formats used by Windows Operating System Products fall
under the umbrella of ``protocol''. Interoperability must
be explicitly recognized to cover any data produced by any program
on any medium that might be used by any other program for a specific
purpose. The current phrasing is far too weak and vague to allow
interoperable alternatives to the likes of Word, Project, Visio,
etc., all important Windows Operating System Products.
Section III.J further weakens sections III.D and III.E.
Section III.J has several flaws.
First, in it the Department of Justice and the nine plaintiff
states sanction a policy of /security through obscurity/, an
mechanism known to be flawed. It is far more secure to allow public
scrutiny of security mechanisms to reveal the most egregious holes
before commitment, implementation and use. Consider the work
regarding DES, AES, Kerberos, etc.; even the theory behind RSA was
published and widely discussed long before practical implementations
were made. The possibilities and implications of vulnerabilities in
the field under such policies are far worse that under published
security mechanisms. Among other things, fixes become nearly
impossible: (1) backward compatibility is necessary, difficult and
counter-productive leading to a false of security and (2)
deployments of such fixes can never be expected to be complete.
Second, by not publishing secure aspects of application
protocols (authentication and authorization), third party software
can never reach the point where it /can/ use the functional
application protocols intended by section III.E.
All in all, sections III.D, III.E and III.J create at best a
documentary opening of Microsoft products with (1) consequences for
Microsoft and (2) no improved opportunities for the rest of the
software industry.
Thank you for taking my comments under consideration.
Douglas Lewan
MTC-00028002
From: Kermit Holman
To: Microsoft ATR
Date: 1/28/02 12:51pm
Subject: Microsoft Settlement
During the past few years I have followed the DoJ case against
Microsoft and the difficulty with getting an agreement for
settlement of the case. In the technology arena this has been
deleterious to business and the consumer. I believe it is time to
get this item cleared and get on with the business of computing and
technology.
Sincerely,
Kermit Holman
holman--;[email protected]
MTC-00028003
From: Ralph Green, Jr.
To: Microsoft ATR
Date: 1/28/02 12:51pm
Subject: Microsoft Settlement
Introduction
As a software engineer with 25 years experience developing
software, mostly for personal computers, I would like to comment on
the Proposed Final Judgement in United Stated vs. Microsoft.
I believe that The Federal Government is attempting to achieve a
remedy that infringes as little as possible on the market, while
trying to stop illegal conduct. I applaud that attempt and think
that was just what you should have been trying to do. I think,
however, that the Proposed Final Judgement fails to stop the illegal
conduct and should be rejected in its present form.
I am not looking for the federal government to pick winners and
losers in the marketplace. I want my federal government only to
ensure that fair competition will let the marketplace decide the
winners. At the very least, any part of this agreement should be
neutral in its effect on further entrenching Microsoft's monopoly.
And since this agreement is supposed to be a remedy for illegal
conduct, it should lean slightly to the effect of opening the market
in order to remedy past wrongs. Then, and only then, the free and
fair market can benefit the consumer.
As your own Competitive Impact statement says ``The
District Court held that Microsoft engaged in a series of illegal
anticompetitive acts to protect and maintain its personal computer
operating system monopoly, in violation of Section 2 of the Sherman
Act and analogous state laws.''
Failures of the Proposed Final Judgement
1) Section III.D states Microsoft shall disclose to ISVs, IHVs,
IAPs, ICPs, and OEMs, for the sole purpose of interoperating with a
Windows Operating System Product, via the Microsoft Developer
Network (``MSDN'') or similar mechanisms...''
The problem here is that Microsoft, as a monopolist, is setting
standards for the industry. For a competitor to arise,
interoperability must be possible. Restricting this API information
for the sole purpose of interoperating with a Windows Operating
System Product only entrenches the monopoly. There is no legitimate
purpose served by restricting this interoperability to only Windows
Operating Systems. For example, a competing middleware product may
ask for these APIs so they can make their product compatible with
both Microsoft Operating System Product and its competitors.
Microsoft could refuse and thus their product tying would have
succeeded in stifling competition. If Section III.D is to have the
effect of fairly documenting these interfaces to stop the tying, the
section quoted above should read:
``Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and
OEMs, via the Microsoft Developer Network (``MSDN'') or
similar mechanisms...''
2) Section III.E states ``Microsoft shall make available
for use by third parties, for the sole purpose of interoperating
with a Windows Operating System Product, on reasonable and non-
discriminatory terms (consistent with Section III.I), any
Communications Protocol''
This is a similar failure to number 1, but more serious. These
communications protocols need to be documented so that any competing
operating system may use them. Microsoft's monopoly does not
currently extend to the server market. If Microsoft were to gain a
server monopoly by the quality of their product offering, that is
fine. If they gain it by tying the server market to their current
monopoly, that is the same kind of improper behavior that brought
about this case. This judgement should not encourage that improper
behavior and so this section I quote should be changed to read:
``Microsoft shall make available for use by third parties,
on reasonable and non-discriminatory terms (consistent with Section
III.I), any Communications Protocol''
3) Section III.G.2 states ``on the condition that the IAP
or ICP refrain from distributing, promoting or using any software
that competes with Microsoft Middleware.''
This is too narrowly drawn and to use a metaphor, confuses the
cart with the horse. The illegal conduct was the attempt to preserve
the monopoly on operating systems. Middleware was the tool used to
preserve the monopoly. Microsoft should not discriminate against
businesses that encourage the use of other Middleware, but they
should not discriminate against businesses that encourage other
operating systems, either. If the phrase ``Microsoft
Middleware'' were replaced with ``Microsoft Platform
Software'', this would have meaning. With the phrase
``Microsoft Middleware'' in place, an IAP encouraging the
use of Linux, BSD or other competitive operating systems could be
discriminated against.
4) Section III.H.2(second 2) states ``(e.g., a requirement
to be able to host a particular ActiveX control)'' This is a
terrible example and significantly lessens the likely intent of this
paragraph. Hosting ActiveX controls is not a technical requirement.
It is an implementation using a proprietary method. A reasonable
technical requirement should not necessitate the use of Microsoft
development tools. The only slightly reasonable point here is that
ActiveX has been around long enough that there are a few alternative
tools. I am not sure whether it is possible to build ActiveX
controls withoutout the use of Microsoft development tools. If it is
not, ActiveX should definitely go as an example.
5) Section IV.B.9 states ``prohibiting disclosure of any
information obtained in the course of performing his or her duties
as a member of the TC or as a person assisting the TC to anyone
other than Microsoft, the Plaintiffs, or the Court.''
[[Page 28177]]
As worded, the TCs will not even be able to communicate
important information to their staff or other TCs. There is also no
reason to protect information about improper business practices by
Microsoft. This should be amended to read ``prohibiting
disclosure of any proprietary information obtained in the course of
performing his or her duties as a member of the TC or as a person
assisting the TC to anyone other than other TC, the TC staff,
Microsoft, the Plaintiffs, or the Court.''
6) Section IV.B.10 states ``No member of the TC shall make
any public statements relating to the TC's activities.''
This sentence should go. The purpose of the TC is to apply
pressure to Microsoft to stay within the law. Secrecy does not serve
that purpose. A better clause would read
``The TC shall make quarterly public reports. These shall
be available on a web pages provided by Microsoft. Microsoft may
fufill this requirement by hosting the web pages or paying for their
hosting elsewhere, as long as the web pages are generally
available.''
7) Section IV.C.3.h states ``maintaining a record of all
complaints received and action taken by Microsoft with respect to
each such complaint.''
The purpose of this judgement is to end the illegal practices of
the past. Light must be shed on questionable practices and credit
should be given to improvements in behavior. These records should be
easily accessible to all and the best way to do this is the change
this sentence to read ``maintaining and publishing on a public
website at the expense of Microsoft a record of all complaints
received and action taken by Microsoft with respect to each such
complaint.''
8) Section IV.D.3.c states ``Microsoft shall have 30 days
after receiving a complaint to attempt to resolve it or reject it,
then promptly advise the TC of the nature of the complaint and its
disposition.'' and will There is no feedback mechanism here to
ensure that complaints are actually resolved. The complaintant
should also be notified by Microsoft. If the resolution is
unsatisfactory, then the complaintant would be prepared to take
appropriate action. This should read ``Microsoft shall have 30
days after receiving a complaint to attempt to resolve it or reject
it, and will then promptly advise the TC and the complaintant of the
nature of the complaint and its disposition.
9) Section IV.D.4.d states ``No work product, findings or
recommendations by the TC may be admitted in any enforcement
proceeding before the Court for any purpose, and no member of the TC
shall testify by deposition, in court or before any other tribunal
regarding any matter related to this Final Judgment.''
This is completely unreasonable if the issue is a further
proceeding involving this matter. If the TC finds out about illegal
behavior, they should have a duty to report it and stand behind
their claims.
Conclusions
The final judgement as it now stands will only make things worse
for the following reasons.
1. After this suit is ended, there will be tremendous pressure
to leave Microsoft alone and see if the judgement leads to a free
market. If the judgement is a reasonable one, I would join in
protesting actions against Microsoft.
2. The failures of this judgement mean that the illegal and
unsportmanlike conduct of Microsoft will likely continue. Because
the people who may see the evidence, i.e. the TCs, must keep silent,
we will have to wait until great harm is done before we will realize
it.
3. That means real competition is less likely to get its foot in
the door and offer real chice to the public. This is what really
drives me. I think that if Microsoft wins a fair fight in the
marketplace, then we are all better off. When they use their
monopoly position to keep entrants out of the market, I think
everyone but Microsoft loses. I wish Microsoft was prepared to fight
a fair fight, but their history tells me they won't.
I really do think kudos are in order on this attempt at a Final
Judgement. It is better than I expected in many ways. The breaking
up of the company, as proposed at one time was too great a
punishment and I am glad to see that solution is gone. In spite of
my optimism at what I first heard about this agreement, a careful
reading leads me to say that this proposed judgement is not good
enough. Because of the significant failures I addressed above, this
agreement will not serve to undo any past wrongs and I strongly
believe it will only make things worse. With a few changes, it could
serve the public interest and not unnecessarily impinge on the
rights of a great American corporation. If the only choices are to
take the Proposed Final Judgement as is, or reject it, I say you
must reject it.
Respectfully submitted on January 28, 2002
Ralph Green, Jr.
MTC-00028003--;0005
MTC-00028004
From: Mike Byrns
To: Microsoft ATR
Date: 1/28/02 12:54pm
Subject: Microsoft Settlement
Which of Microsoft's competitors has even expressed an interest
in undertaking the gargantuan task that is writing a desktop
operating system that could compete with Windows XP? I think we must
discount the tiny startups like Be, Inc. since they are no more
positioned to compete with Microsoft anymore than Tucker or Rosen
Motors was positioned to compete with GM. Both had superior,
innovative products but were just not realistically positioned to
compete with GM. Face it, there is just as much barrier to entry
into any major market as there is into desktop operating systems if
you are not already a megacorp.
I think the whole scope of the ``market'' that
Microsoft has been found to be monopolizing has been carefully
crafted to make them the the only player. That scope makes Intel a
monopolist in that market too and by the same token Apple a
monopolist in the Motorola-based PC market. Look at some of the
dirty tricks Intel has pulled vs. AMD and how Apple displayed
undeniable market control in the Motorola-based PC market--; it
allowed Mac clone vendors to exist and then immediately when Jobs
came on board, it canceled all their licenses and put them all out
of business.
To me, the market is for ``personal computing
devices'' not just Intel-based PCs. It should have included
Apple and Palm as well. For this reason I think the case has been
fundamentally flawed from the start and I think it's whole reason
for being is too. I don't think there would be a case if it weren't
for competitors in other markets (Oracle, AOL, SUN) where Microsoft
cannot remotely be considered a monopoly (more like a struggling
underdog!) playing protectionist politics. Not one of those
companies has ever made even the slightest indication of intent to
create a full-featured desktop operating system for Intel-based
personal computers.
Their only intent in their friend of the court activity is to
get back at Microsoft for competing with THEM in their near-monopoly
franchises.
If you look at it from that perspective then they are even more
anti-competitive than Microsoft and certainly more opportunistic.
The bottom line: Settle this. It was never in the public
interest. You've already spent too much of my tax dollars playing
marionette for billion dollar Microsoft competitors.
Mike Byrns
MTC-00028005
From: Paul Staudenmeier
To: Microsoft ATR
Date: 1/28/02 12:54pm
Subject: Microsoft settlement
692 Raven Road
Wayne, PA 19087-;2329
January 25, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing in full support of the recent settlement between
the US Department of Justice and Microsoft in the antitrust case.
Firstly, I do not agree with a lawsuit being brought against
Microsoft in the first place. Microsoft is not a monopoly, as they
have never tried to deliver poor quality goods at inflated prices.
They have at times employed tough marketing tactics, but that is by
no means a crime in our capitalist society. In fact, I would say it
is often the only way to be successful, let alone survive, in our
free enterprise system. Microsoft spent huge amounts of time and
money to develop excellent products and services. But rather than
being allowed to enjoy the fruits of their labor, Microsoft is now
forced in one term of the settlement to disclose interfaces that are
internal to Windows'' operating system products. This seems to
violate their intellectual property rights. I hope the settlement
goes through anyway because I think our IT sector and economy cannot
afford further litigation. We need our strongest assets innovating
and trying to grow. I know many others echo my opinion that I work
and live with. I hope your office takes a firm stance against those
who want to drag the suit on still longer, and instead strongly
supports the implementation of the settlement.
Sincerely,
Paul Staudenmeier
cc: Senator Rick Santorum
[[Page 28178]]
MTC-00028006
From: bob becker
To: Microsoft ATR
Date: 1/28/02 12:54pm
Subject: Microsoft Settlement
To Whom it May Concern:
The proposed remedy for the Microsoft anti-trust case is a bad
idea. It does nothing to ensure that Microsoft won't continue to
force its standards and use of its products by every possible means.
Bob Becker
CC:[email protected]@inetgw
MTC-00028007
From: James Houston
To: Microsoft ATR
Date: 1/28/02 12:55pm
Subject: Microsoft Settlement
I hope you can settle this suit ASAP. It has gone on to long and
continued litigation is harmful to our economy, due to the
disruptions in the software industry. Microsoft is guilty of only
trying to put the best product on the market. I've been a software
user for over 20 years now and have never felt I was forced to use
only a Microsoft version of a program. I have tried several others
over the years and have always returned to Microsoft versions,
because they are better. Would you want to be forced to buy a KIA
vs: a Toyota?. Netscape was a big thing. I tried it for two years
and the switched back to MSN. I use earthlink as my browser and not
MSN's browser. This was a conscious decision and executed in a free
market. I did not fell forced to use MSN's browser. Did breaking up
AT&T really help us? We don't know where we are getting our long
distance service most of the time. And rates for LD phone service??
You could write another book about that. Why don't you devote your
efforts to clarifying the up and down fluctuations of the oil and
gas market? That would be something the consumer would really be
interested in. These state attorney generals are just looking for
political headlines so they can be considered for state governors
jobs. What is the average consumer really going to get out of a
settlement penalizing Microsoft? Look at the Ag'S track records. How
many governors were previously AG's?
Please give us a break and end this Microsoft ``witch
hunt'' now.
James M. Houston
[email protected]
CC:Diane Feinstein,Barbara Boxer
MTC-00028008
From: v d
To: Microsoft ATR
Date: 1/28/02 12:55pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally, I oppose the proposed resolution in
the MS case, better know as the Proposed Final Judgment. Over and
above the usual economic risks presented by an unchecked
monopolist--;rising prices and monochromatic innovation the
nations computer infrastructure will be increasingly vulnerable to
attack if a single software system predominates.
Obviously I am referring to Microsoft.
Suppose that 80 or 90percent of the world's grain supply came
from a single variety of corns. We would be faced with the
unacceptable risk that some single disease, might wipe out an
enormous portion of our food supply. Having only one kind of
operating system or one kind of browser would make it terribly
easier for saboteurs to bring the entire Internet to its knees.
For one entity, such as Microsoft, to control 80 to 90 percent
of the market for PC operating systems, Internet browsers, e-mail
readers, and office productivity software is clearly a significant
security risk. To then allow that monopoly to actively attempt to
drive out its remaining competition would hardly be in the public
interest. Diversity is the key in producing economic prosperity and
improving the society as a whole.
It's now up to you, Judge Kollar-Kotally, to decide whether the
proposed settlement between Microsoft and the DoJ is a correct and
just solution. However from where I sit, it contains too many
loopholes to drastically effect Microsoft's behavior, much less
bring about a certain kind of diversity which would enhance our
security.
Kind Regards,
Eddie Ortiz
601 Kilpatrick Street
Vallejo, CA 94589
MTC-00028009
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:56pm
Subject: Microsoft Settlement
I agree with it because it is for the best interest of the
American people who use Microsoft products.
Juanita L. Lizano
CC:[email protected]@
inetgw
MTC-00028010
From: Richard Griest
To: Microsoft ATR
Date: 1/28/02 12:59pm
Subject: Microsoft Settlement
The Honorable Colleen Kollar Kotelly
U.S. District Judge
RE: U.S. DOJ /Microsoft Settlement
Your Honor:
The remedy proposed by the Department of Justice (DOJ) brings to
mind the Oct. 22nd statement of the SEC chairman Harvey Pitt,
``the SEC would henceforth be a kindler and gentler place for
accountants. We all know what a disaster this attitude has resulted
in, the Enron scandal. That DOJ would accept the settlement it has,
shows that either they don't understand the impact software has in a
modern economy or they don't understand the way that Microsoft
exerts a negative influence as a monopolist. This settlement is
definitely not in the public interest. I use software everyday on my
job, as a controls engineer, in factory automation. Over the past
two decades I have seen the software get more complex by an order of
magnitude, requiring faster and faster computers just break even,
with little increase in accomplishment. Increasingly you spend more
time getting your operating systems and interfaces to work than you
do actually writing the ladder logic that controls the motions and
cycles of the factory equipment.
Personally, I feel the disclosure requirements required by
Microsoft so that third parties can interface with Windows should be
identical to that required by U.S. patent office. In the case of
patents, if you don't publicly disclose enough information so that
anyone skilled in the art can replicate your invention (interface
with it in this case), your patent is invalidated.
Because it is a monopoly, a Microsoft copyright has the same
effect as a patent, in preventing other people from entering the
market. Forcing Microsoft to come up with a version of Office that
would run on Linix as nine states who refused the DOJ settlement are
requesting, still doesn't solve the problem. The real dollars are
spent buying the Office product not in buying the Windows operating
system. So you save $200-$300 by using Linix instead of Windows XP,
you still have to fork over $500-$1000 to get Microso ft's Office
for Linix.
In addition, there should be an anti-churning provision in the
remedy. We are all familiar with churning in the stock market where
your broker buys and sells stocks solely for the purpose of gaining
commissions. This is exactly what Microsoft does when it brings out
a new version of Windows and forces everyone to upgrade. To prevent
this, the court should allow only two versions of Windows to be
copywrighted at any one time, a business version and a consumer
version. When a new version is brought out, all previous versions
would revert to the public domain.
One of the benefits of allowing a monopoly is the
standardization that it can bring. With Microsoft having so many
different versions of Windows the standardization is gone. This is
true both from an operator standpoint and from a software standpoint
as many programs will only run on one version of Windows.
Finally let me detail two instances of fraud on Microsoft's
part. The first envolves the removing of spelling check from the
Internet Explorer 5 browser with Outlook Express.
When I downloaded I.E. 5 for free circa 4/28/99 it came with
Outlook Express 5 version 5.00.2314.1300 for Windows 95. Under the
tools menu the spelling check was a very useful feature for catching
errors in you email. Recently I purchased a Dell Inspiron 3800
laptop that came with Windows 2000 and Outlook Express
5.00.2919.6700 which has the spelling check feature disabled.
In any other business this would be called bait and switch. Just
to call up and ask the software support people at Dell about a
Microsoft problem like this they want $29 for each question asked.
Microsoft refers you to the OEM you bought the computer from. Now
that they have browser dominance Microsoft wants you to fork over
$500 for Office to get the spell checker you used to get for free.
And with a Justice Department that ``hears no evil'',
``sees no evil'' and ``speaks no evil'' they get
away with it.
The second instance of fraud involves the removal of QBasic from
Windows 200 0. If a person goes to a car showroom and sees an engine
listed on the sticker, buys the car and then subsequently finds out
it has no engine, he would have little trouble in sending that
dealer to jail. Yet when Microsoft does the same thing the DOJ just
looks the other way.
The contents of the help file is the sofware equivalent to an
automobile window sticker.
[[Page 28179]]
The help file for Windows 2000 clearly shows that QBasic is included
as part of the product.
When you inquire the Microsoft knowldge base as to why QBasic
isn't on your CD rom it suggests copying it from an NT CD rom. In as
much as not all people with Windows 2000 have legally purchased
Windows NT, Microsoft is clearly guilty of conspiracy to get people
to violate the copyright act by making these suggestions.
In as much as DOJ's knowledge of computers seems limited, let me
elaborate on the significance of leaving out QBasic. A computer
operating system such as Windows 2000 can do nothing towards solving
problems, which is the reason most computers are purchased. Without
QBasic or some other additional software your computer is a $3000
piece of junk. Deleting QBasic is another example of Microsoft's
bait and switch. QBasic was part of Windows NT, and it says right on
the Windows 2000 boot up screen ``based on Windows NT''
Yet QBasic is gone. What Microsoft is doing here is described in the
Wall Street Journal article ``Technology Grows Up'' by
Walter S. Mossberg 10/25/01 pg B1 ``On the software side a
similar consolidation and drying up of innovation and competition
has taken place ....There are two main reasons for the demise of
boxed software. First, Microsoft has become a brutal monopolist in
the key software categories squeezaing out competitors.''
(pardon the spelling mistakes, Microsoft took my spell checker away)
So now you have to purchase Microsoft's Visual C boxed software if
you want to write some code to solve even the simplest of problems,
like you can on a programable calculator.
Let me close by saying that it took extraordinary effort to
locate the address to send these comments to even though I have been
looking for months. I contacted Sun, several attorney generals
offices, and my local newspaper's office. I find it significant that
neither www.pcmag.com now www.pcworld.com felt comfortable posting
the address on their web sites.
This kind of fear only a monopolist commands. Something needs to
be done.
Sincerely,
Richard M. Griest
Nashville, TN
CC:[email protected]@
inetgw
MTC-00028011
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:56pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse: Please put a stop to the economically-
draining witch-hunt against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon from
the desktop; the fact is, this case against Microsoft is little more
than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user. This is just another method for states
to get free money, and a terrible precedent for the future, not only
in terms of computer technology, but all sorts of innovations in the
most dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Don Stevens
5511 20th Street Lubbock, TX 79407-;2005
MTC-00028012
From: LJ Sweet
To: Microsoft ATR
Date: 1/28/02 12:58pm
Subject: Law suit
Stop meddling in the competition between competitors. This is
not for the government to decide this should be settled by the
consumer let them use the soft wear that works the best and costs
the least. Let AOL and netscape make a better product.
Stop whining.
Drop the law suits
MTC-00028013
From: E G
To: Microsoft ATR
Date: 1/28/02 12:59pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I object to the so-called Proposed Final Judgment in the
Microsoft case.
As every one knows, Microsoft continues to violate anti-trust
laws set in place many years ago. The Proposed Final Judgment goes
against all logic. Previously the US Court, has found Microsoft
guilty of breaking the anti-trust laws. However, under the proposed
final settlement, MS is permitted to retain most of its profits
gained through their illegal activities. Subsequently, the PFJ will
not compensate parties injured by the Microsoft debacle.
Moving forward, the PFJ does not take into account all Microsoft
gains made through its illegal maneuverings. The final settlement
basically acknowledges the acceptance of Microsofts anti-competitive
behavior. What kind of message does this send out to the public? Do
you think the public will be in favor of such a move?
I can assure you that the message is clear and simple. The
Proposed Final Judgment encourages big corporations to engage in
monopolistic and predatory conduct, which in turn is detrimental to
the technology industry at large. With all due respect your honor, I
am outraged at such a preposterous proposal that only helps
Microsoft to remain intact and continue with its unethical
practices. I submit to you my objection to this Proposed Final
Judgment.
Respectfully,
Gigi Ortiz
601 Kilpatrick Street
Vallejo, CA 94589
MTC-00028014
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:56pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user. This is just another method for states
to get free money, and a terrible precedent for the future, not only
in terms of computer technology, but all sorts of innovations in the
most dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Carol Morrell
1412 Glen Echo Drive
Huntingdon Valley, PA 19006
MTC-00028015
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:56pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user. This is just another method for states
to get free money, and a terrible precedent for the future, not only
in terms of computer technology, but all sorts of innovations in the
most dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely, Carol Morrell 1412 Glen Echo Drive Huntingdon Valley, PA
19006
MTC-00028016
From: Joseph Lin
To: Microsoft ATR
Date: 1/28/02 1:00pm
Subject: Microsoft Settlement
Judge Kollar-Kotally,
I feel the Microsoft settlement before you has serious flaws,
and I urge you to reject it. Every court has agreed that Microsoft
has used its monopoly powers to reap unjust profits, yet the company
is now being allowed to retain those.
Furthermore, there is no provision to ensure that their anti-
competitive won't continue.
Respectfully,
Joe Lin
MTC-00028017
From: Adrian M. Fitzpatrick
To: Microsoft ATR
Date: 1/28/02 1:01pm
Subject: Microsoft Settlement
I urge you to accept the Microsoft Settlement as it now is in
the best interest of the public to do so. I think to drag this out
[[Page 28180]]
longer will just cost more in litigation fees which will ultimately
be paid for by the consumer. Thank You
MTC-00028018
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 12:58pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Dr.Philip Sekar
Box 29729
Thornton, CO 80229-;0729
MTC-00028019
From: Brian Gregory (EWU)
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 1:01pm
Subject: Microsoft settlement
I am an electrical engineer working at a telecom research
division in Boulder, CO. I am in favor of ruling as strongly as
possible --;against--; Microsoft in the current case. The
only step I'd not advocate is breaking the company up. I find
Microsoft's behavior in the matters being investigated if not
illegal--;which I'm not qualified to judge--;reprehensible,
immoral and absolutely un-American. They're every bit as
manipulative and predatory while hiding behind a panoply of
legalisms as the worst stories of turn-of-the-century rail barons
ever boasted. Microsoft is clearly an abusive company and near-
monopoly. If Microsoft is not reined in, it could continue to foster
and force upon an unsuspecting public, mediocre products that have
not been properly subjected to the scrutiny and competition of open
markets. The result will be a country ill prepared to cope with the
21st-century information age; prone to computer virus infection and
poor software reliability.
Punish Microsoft! Share with them some of our pain, please.
Sincerely,
Brian Gregory
Boulder, CO
303.664.1085
brian--;[email protected]
P.S.: Some history
In this case, the DoJ was accepting public input until Jan 28th
on the DoJ vs Microsoft case. The DoJ theoretically must weigh
public opinion before making their final decision.
CC:'Tom Jones','Kevin Gregory','Home''
MTC-00028020
From: Don Parry
To: Microsoft ATR
Date: 1/28/02 1:02pm
Subject: Microsoft Settlement
To whom it may concern, my wife Carolyn and I wholeheartedly
support the Microsoft settlement as presently constituted. Thank
You,
Donald S. Parry
Carolyn S. Parry
1178 Wood Duck Hollow
Jacksonville, Fl., 32259-;2932
904-;287-;7720
[email protected]
MTC-00028021
From: N B
To: Microsoft ATR
Date: 1/28/02 1:03pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am object to the final settlement in the MS court case. Not
only does this go against the findings by the U.S. Court of Appeals
but, in facts allows MS to go unpunished for past wrong doings.
The Proposed Final Judgment allows MS to continue its predatory
practices. My main argument entails the preservation of healthy
competition. The way to accomplish such a task is by promoting
diversity with in the business sector. For a single entity, such as
MS, to control 80 to 90 percent of the market for PC operating
systems, e-mail readers, and office productivity software (which
undoubtedly can spread viruses) is clearly a significant risk to
security. To then allow that monopoly to actively attempt to drive
out its remaining competition would hardly be in the public
interest.
Therefore, I submit to you that the Proposed Final Judgment will
not solve the Microsoft issue.
ALL THE BEST,
Bernie Bonefacio
951 2nd Ave
San Mateo, CA 94401
MTC-00028022
From: Rhodes, Vaughn
To: Microsoft ATR
Date: 1/28/02 1:04pm
Subject: Microsoft Settlement
Dear DOJ,
I am the former product manager at Compaq Computer Corporation
who was responsible for the Compaq/AOL deal in 1995. I worked for
Rod Schrock at the time, who worked for John Rose. You used several
of my email messages in your case against Microsoft. Name: Vaughn
Rhodes.
I HIGHLY object to the proposed settlement with Microsoft. I'll
go a step further: I have a hard time believing that it is even
being proposed. It is a gross miscarriage of justice. I know because
I was at the heart of the project at Compaq that resulted in
Microsoft sending a letter of termination to Compaq.
Let me provide some background for you.
In 1995, I was placed in charge of defining Compaq's consumer
online strategy. I proposed a relationship with America Online, one
which was great for America Online, and even better for Compaq. It
was worth HUNDREDS OF MILLIONS OF DOLLARS IN INCREMENTAL PROFIT to
our business unit. The deal, in a nutshell, involved Compaq heavily
promoting the AOL service, in exchance for AOL giving Compaq a large
revenue share.
Microsoft heard about this forming relationship. They contacted
us and asked that we work with them instead of AOL, to promote their
new online service code-named Marvel (now known as MSN, the
Microsoft Network). We responded the we would be happy to work with
them, but we would expect them to pay us in a similar fashion to how
AOL was to pay us.
Their response? I'll paraphrase: We are Microsoft. We own the
customer, not you, Compaq. You Compaq have three choices:
1) Do the deal with Microsoft. We will pay you NOTHING, but
we'll have a closer relationship, with various intangible benefits
(wink wink lower price on the OS, etc.)
2) Cancel the deal and do it with nobody. We Microsoft are OK
with that.
3) Do the deal with AOL. WARNING: IF YOU PURSUE THIS OPTION, WE
WILL PUT
YOU OUT OF BUSINESS.
Our team at Compaq reviewed the situation, and concluded that
Microsoft must be bluffing. They couldn't do it, because it would be
such a blatant violation of anti-trust laws.
We decided to proceed with the deal.
Shortly afterward, Microsoft sent us a letter telling us that we
were in violation of their Windows Licence agreement, and we could
no longer sell PCs with Windows installed. THEY WERE PUTTING US OUT
OF BUSINESS!!!
Needless to say, we ended up having to redo the deal with AOL,
dramatically watering it down and making it effectively into a
nothing deal: no real benefit to AOL, no real benefit to Compaq.
If this kind of behavior is not a flagrant abuse of monopoly
power, I don't know what is.
I would be glad to discuss this further with anyone from the
DOJ.
Please contact me at your earliest convenience.
Thank you,
Vaughn Rhodes
Formerly Strategic Planning Manager (and Product Manger) at
Compaq
Computer in Houston, TX
650-;938-;8587 (home)
650-;279-;6221 (cell)
[email protected] (work email address)
[email protected] (home email address)
MTC-00028023
From: Michael McLay
To: Microsoft ATR
Date: 1/28/02 1:05pm
Subject: Microsoft Settlement
The comments on the Microsoft Settlement by Dan Kegel [1]
highlight many reasons for handing down a swift and harsh punishment
for Microsoft. There should be no negociating this settlement. They
are at the mercy of the court and should suffer the conseqences of
their actions. The following suggestion on the nature of the
punishment has not been
[[Page 28181]]
proposed in any discussions I have seen to date.
I am concerned that the settlement talks with Microsoft have
ignored the assignment of a financial penalty. Antitrust law allows
for treble damages so the court has ample power to punish violators.
An effective settlement must include a stiff financial penalty that
is proportionate to the profits that Microsoft gained through their
violations of the law. The abuse of monopoly power has resulted in
many billions of dollars in windfall profits to the company. A fine
of $20-;30 billion would send a message that Microsoft will
understand. It isn't excessive (it would be less than a year's
profits) and wouldn't do excessive harm to the company's financial
health (they have the cash to pay the fine immediately). Anything
less will be a simple slap on the hands which they will ignore.
Awarding this money directly to those who where damaged by the
abuses of Microsoft is not practical. Not everyone registers the
purchase of the products involved and even if the fine were
distributed the resulting award would only be a few dollars per
person. A straight distribution of the fine would have no lasting
outcome.
The judgement could leverage the fine against Microsoft to
strengthen the punishment and benefit those who were harmed. This
can be done by using the money to set up a foundation to fund open
source software projects. This would result in a just solution that
helps those who were damaged directly by Microsoft. Open source
software is freely available to everyone, so everyone benefits
equally. Open source software is also the one potential
``competitor'' that Microsoft still fears. A $20B trust
fund that assigns matching grants to those who are willing to work
for the public good would benefit everyone equally and potentially
help restore competition to the software world. There are many open
source organizations set up to help fund open source developers.
Organizations such as the Free Software Foundation [2] and the
Python Software Foundations [3] would be able to make significant
progress in projects that otherwise only make progress through the
voluntary efforts of motivated and highly skilled software
developers. Imagine the good that would be had by funding 20 such
organizations with a $1B trust fund. This remedy will do much to
help restore the market balance, but it will not be sufficient if
Microsoft continues to control the definition of standards.
The punishment must also require Microsoft to participate in the
development and use of open and well documented standards. The
Kerberose abuse is evidence of their intentions to subvert
competition. The punishment must prevent them from further harming
the market though the abuse of standards and secret interface
definitions.
[1] http://www.kegel.com/remedy/
[2] http://www.fsf.org/
[3] http://www.python.org/psf/
MTC-00028024
From: Bart Locanthi
To: Microsoft ATR
Date: 1/28/02 1:06pm
Subject: Microsoft Settlement
A Better Settlement Proposal
Microsoft was found guilty of violating antitrust law. Microsoft
has never abided by any previous findings or judgements beyond the
narrowest definition of the letter. During the various legal
proceedings, Microsoft continuously demonstrated its contempt for
the law and its process. The proposed settlement is, more than
anything else, a license for Microsoft to continue and extend its
abusive behavior at the expense of the consumer and the industry.
Accepting the settlement as is would be an outrage. There must be
punishment for previous crimes. There must be compensation for the
vast quantity of parties injured by these crimes. There must be
consequence for continued, renewed, and new anti-competitive
behaviors. And, there must be a mechanism to deter Microsoft from
dragging out process, as has been their habit and intent, to outlast
competitors, judges, and public attention.
It is with these points in mind that I suggest the following:
1) Require that Microsoft make public all file formats and APIs,
past, present, and future, without charge, to anyone who asks. There
can be no squirm room here, no hiding behind a supposed need for
Microsoft to safeguard internal secrets. Microsoft has always used
file formats and APIs as weapons to injure customers and
competitors, and any loss of business advantage from this
requirement would be a minimal and fair compensation to the world at
large.
2) Implement a penalty schedule to force compliance of Item 1.
For each file format or API not already published, a clock would
start at the first request for it, and a fine imposed for every week
said item it not made publicly available. This fine would increase
geometrically: a weekly fine would start at $100,000 and be doubled
and collected each week. The total cost of delay for four weeks
would thus be $1,500,000, and for eight weeks it would be
$25,500,000. The fines and penalty schedules for information
requests would be independent--;by dragging its feet, Microsoft
could wind up paying several fines at varying penalty levels at the
same time.
This geometric increase is essential, as it addresses the
important issue of time, which Microsoft has always used as an ally.
Any notion of these fines being ruinous is easily dispelled by two
points:
1) all fines can be avoided by immediately complying with
information requests, and
2) this is punishment, after all--;Microsoft has no business
asking for mercy, having always acted with brutality and bad faith
in their dealings.
Information may not be witheld for reasons of presentability.
Or, rather, if Microsoft cares to polish its presentation, or
disentangle it from, say, strategic business information, there
would be a known cost for delaying its publication. Again, there can
be no excuse for non-compliance. Penalties must be exacted with the
extreme prejudice justified by judicial findings and Microsoft's
historical refusal to comply with the law.
It is important that fines be collected as they are incurred.
There should be no incentive for Microsoft to delay compliance, or
hope that by running up a huge total fine they might gain public
sympathy and again escape punishment. On the contrary, delay of
payment should be met by freezing of their assets and forced
collection. There can be no fear of enforcing the law--;after
all, there is nothing that Microsoft makes that is essential to the
economy. To the contrary, the economy has suffered long enough at
the hands of Microsoft, and Microsoft needs to learn how to become a
proper citizen. The hard way, if necessary.
Bart Locanthi
[email protected]
Beaverton, OR
MTC-00028025
From: Jay Chell
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 1:05pm
Subject: Microsoft Monopoly Settlement
I disagree with the current settlement plan. It will leave the
fox in charge of the hen house. This settlement will cause the DOJ
to visit this issue again when things once again get out of hand.
jay chell
Manager, Delegated Financial Audits
phone: 562-;989-;4455
fax: 562-;989-;5192
e-mail: [email protected]
MTC-00028026
From: Kenneth Olafson
To: Microsoft ATR
Date: 1/28/02 1:06pm
Subject: Microsoft Lawsuit
January 28, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Since the filing of the Microsoft lawsuit by the Clinton
Administration Department of Justice, I have tracked the case. I
believe it was wrong to file the lawsuit and I am relieved that it
is finally over. We do have the unfortunate situation with some
renegade Attorney General's around the country, however. Please take
the settlement and close the case We need to move forward with our
technology investments and with new ideas and technology. We need
this case behind us.
Sincerely,
F. Kenneth Olafson
Utah Coalition for Accountable Government
MTC-00028027
From: DJMaytag
To: Microsoft ATR
Date: 1/28/02 l:13pm
Subject: Microsoft Settlement
I have to take objection to this:
``59. The primary channel through which Microsoft
distributes its operating systems is preinstallation on new PCs by
OEMs. Because a PC can perform virtually no useful tasks without an
operating system, OEMs consider it a commercial necessity to
preinstall an operating system on nearly all of the PCs they sell.
And because there is no viable competitive alternative to the
Windows operating system for Intel-based computers, OEMs consider it
a commercial
[[Page 28182]]
necessity to preinstall Windows on nearly all of their PCs. Both
OEMs and Microsoft recognize that OEMs have no commercially viable
substitute for Windows, and that they cannot preinstall Windows on
their PCs without a license from Microsoft. For example:''
Look at today's PCs and try to buy a PC from Dell, HP with both
Windows and Linux factory installed. You can't. You can get Linux in
some places, mostly WinMe, but not both. The reason is MS plays a
clever game. To use a boot loader, if you're a Windows licensee, you
must use the MS loader. Then, if you read the MS Boot Manager
license, you can only use it to load MS OSs, DOS, WindowsXX, Windows
2000. Otherwise you lose your Windows license. This explains why you
cannot buy a dual boot Windows and a competing OS loaded at the
factory. If and when the DOJ wins their case for good and winning
means Dell or Compaq can install competing OS at the factory, MS
will have to compete on merits. Today, they abuse their monopoly.
See http://www.befaqs.com/mirror/classic-be/developers/bmessage/
issue01.html for the full article:
Manufacturing Consent
by Jean-Louis Gass,e
Perhaps I should call this column ``Manufacturing Public
Opinion,'' rather than ``Manufacturing Consent.'' The
idea for it occurred to me as I read the opinion ``polls''
taken right after last Friday's announcement of the DOJ's proposed
remedies in the MS anti-trust trial. The pollsters found that the
majority (more than 60%) of the American public is opposed to the
remedies proposed by Joel Klein's team at the DOJ, working with the
attorneys general of 19 states. With more than 20% undecided, that
leaves relatively few people supporting the DOJ's position. Vox
populi, vox dei? Is the DOJ, which is supposed to fight for the
people, out of touch with the public good? That's what the pollster-
geist behind the probe would like us to believe. Far from me to
suggest that this poll is unscientific. Au contraire. It represents
the real science of manufacturing opinion, preferably by creating an
avalanche effect. If most people are against breaking up Microsoft,
it must be bad; therefore, I must join them, and the next poll might
show even stronger disagreement with the DOJ. What's bad for
Microsoft is bad for America.
Let's go back to December 1982. You poll consumers for what they
want in a personal computers. What do you hear? I want a better,
faster, cheaper Apple II, or ///, or PC, or CPM system (yes, these
were still around at that time). A month later, you give public
demonstrations of the Lisa. The same people now tell you that's what
they want. B-b-b-b-but, you stutter, that's not what you said last
month. Yes, no, I didn't know this existed.
In other words, the consumer had no words, no concept, to deal
with what was unthinkable at the time but which suddenly became
describable-and attractive- once seen and touched: a mouse,
overlapping windows, a bitmapped screen, pull -down menus. I can
only think and discuss what I have reference points for and, in
general, I tend to describe the future in today's vocabulary. In
this case, most PC users have only been exposed to Microsoft's
lineage of operating systems. As a result, there are few reference
points for thinking of life with more than one breed of operating
system and applications.
Microsoft made sure that an alternative OS such as Be's, Linux,
or FreeBSD couldn't be loaded next to Windows by PC OEMs. As a
result, people have no data other than the Microsoft experience.
They're told that some of the remedies would make the Windows system
riskier and that applications might not work as well. We have
something that works, the jack-booted thugs at the Justice
Department want to make it less than what it is today, so why should
I be in favor of breaking up Microsoft? Setting aside the
caricature, the point remains: Microsoft's monopoly practices are
the very reason why we haven't experienced what a truly competitive
situation might be like. This is why the poll is so revealing of a
certain kind of science in manipulating the political situation
around the suit.
A Crack in the Wall
By Jean-Louis Gass,e
You're the CEO of a PC OEM, delivering some great news to Wall
Street: ``In an effort to offer greater variety and performance
to the customer, our factory now installs three operating systems on
the hard disk--;Windows, Linux, and the BeOS. The reaction has
been spectacular. Customers love having a choice of OS, and the
press--;from John Dvorak in PC Magazine to John Markoff in the
New York Times to Walt Mossberg in the Wall Street Journal--;has
heralded us for our bold move. This is a great step forward for the
consumer and for the industry. Oh, and by the way, we lost $50
million since we no longer qualify for Windows rebates. But it's a
sacrifice for the common good.''
You're now the ex-CEO of a PC OEM.
We know that the Windows rebate scheme exists--;but what
*is* it, exactly? And why are so many OEMs afraid of losing it?
Windows pricing practices are closely guarded secrets, so we don't
know exactly how the rebate is structured, but we can assume that it
works something like this: The total cost of a Windows license
consists of a base price offset by a rebate. The base price is set;
the rebate is flexible, and contingent on the
``dedication'' of the licensee. That is, the more you
``advertise'' the product--;through prominent
positioning, expanded shelf space, and so on--;the greater your
rebate. This quid pro quo rebate looks innocent enough, and can be a
useful tool in a competitive market.
But when you're running a monopoly--;and when it comes to
out-of-the-box, consumer-grade PC clones, Microsoft *is* a
monopoly--;``prominent positioning'' and
``expanded shelf space'' have little meaning. Microsoft
has no interest in getting ``more'' footage on the OS
shelf, because they've already got it all. What interests
them--;the only useful advantage they can ``buy'' (to
be kind) with their rebate--;is to ensure that no one else will
get any. So how is ``dedication'' measured? A real-life
example: We've been working with a PC OEM that graciously--;and
bravely--;decided to load the BeOS on certain configurations in
its product line. However, there's a twist in their definition of
``loading.'' When the customer takes the machine home and
starts it up for the first time, the Microsoft boot manager
appears--;but the BeOS is nowhere in sight. It seems the OEM
interpreted Microsoft's licensing provisions to mean that the boot
manager could not be modified to display non -Microsoft systems.
Furthermore, the icon for the BeOS launcher--;a program that
lets the user shut down Windows and launch the BeOS--;doesn't
appear on the Windows desktop; again, the license agreement
prohibits the display of ``unapproved'' icons. To boot the
``loaded'' BeOS, the customer must read the documentation,
fish a floppy from the box and finish the installation. Clever.
One suspects that Linux suffers from the same fealty to
Microsoft's licensing strictures. Linux is the culmination of 30
years of development by the Unix community. Surely an OEM can't
complain about Linux's quality or its price: It's good, and it's
free. If Microsoft licensees are as free to choose as Microsoft
claims they are, why isn't Linux factory installed on *any* PC? If
you randomly purchase 1,000 PC clones, how many have any OS other
than Windows loaded at the factory? Zero. But what about all these
announcements from companies such as IBM, Dell, and others? A few
URLs are supplied here for your convenience:
If you parse the statements, Linux is offered and supported on
servers, not on PCs. Another IBM story is that installation is to be
performed by the reseller on some PCs or laptops, not by IBM at the
factory. As an industry insider gently explained to me, Microsoft
abides by a very simple principle: No cracks in the wall. Otherwise,
water will seep in and sooner or later the masonry will crumble.
Guarding against even the smallest crack is important to
Microsoft, because it prevents a competitor from taking advantage of
a phenomenon that economists call the ``network effect.''
The ``network effect'' manifests itself as an exponential
increase in the value of a product or service when more people use
it. Applied to a computer operating system, the effect works like
this: As more people install and use an OS, the demand for
applications increases. Developers respond to the demand, which
attracts the attention of OEMs and resellers, who promote the OS in
order to sell the apps, which attracts more customers... The key to
all this is distribution and visibility --; in other words,
``shelf space.''
Bill Gates understands the network effect well--;he once
quoted it to me, chapter and verse. In the Fall of 1983, when I was
still running Apple France, I met with Bill in Paris and we got into
a conversation regarding the market share limitations of DOS. No
problem, he said, with the wide
[[Page 28183]]
distribution we enjoy, we'll get the attention of third parties, and
the marketplace will fix these shortcomings.
This puts statements by senior Microsoft executive Paul Maritz
in perspective. In reaction to my claim that Be wants to co-exist
with Microsoft, Mr. Maritz said (as quoted by Joseph Nocera in
Fortune Magazine): ``[Gassee is] articulating his strategy for
entry into the operating system marketplace. But on the other hand,
I know that Be has built a full-featured operating system, so what I
believe he's doing here is outlining his strategy about how he will
initially co-exist with Windows and, over time, attract more
applications to his platform.''
Mr. Nocera interpreted Mr. Maritz's interpretation thus:
``In other words, Gassee's spiel is little more than a trick
intended to lull Microsoft. But Microsoft isn't so easily fooled!
Microsoft will never ignore a potential threat to its Windows
fortress, no matter how slight. The software giant may be in the
middle of an antitrust trial, but--;as Andy Grove
says--;only the paranoid survive...''
[The entire article, part of a court house diary, can be found
at .]
Industry sages such as T.J. Rodgers, the CEO of Cypress
Semiconductors, as well as venture capitalists aligned with
Microsoft, criticize the Department of Justice's intervention in the
new Pax Romana we're supposed to enjoy under Microsoft's tutelage.
Don't compete in court, compete in the marketplace, they say. I'm a
free marketer myself; I left a statist environment for the level
playing field created by the rule of law in this, my adopted
country. A free market is *exactly* what we want. One where a PC OEM
isn't threatened by financial death for daring to offer operating
systems that compete with the Windows monopoly.
We started with a thought experiment. We end with a real-life
offer for any PC OEM that's willing to challenge the monopoly: Load
the BeOS on the hard disk so the user can see it when the computer
is first booted, and the license is free. Help us put a crack in the
wall.
Is the Customer King?
By Jean-Louis Gass,e
One would hope to answer this question in the affirmative, but
before I elaborate, some follow-up to last week's column, ``A
Crack In The Wall,'' along with our thanks.
Our offer of free copies of the BeOS to OEMs willing to load our
OS ``at the factory,'' on the hard disk of PCs they sell,
got a tremendous response. We appreciate the interest in our product
and we intend to do our best to honor the hospitality extended to
us. Watch this space or, more generally, www.be.com, for more
details. For a number of contractual reasons, this offer applies
only in the US and Canada, not to other countries in the Americas or
in Asia. For Europe, please contact our VP Europe, Jean Calmon,
[email protected], for country-by- country details.
As we collect data from the flow of responses, an interesting
but not unexpected picture emerges. The OEMs expressing interest are
the ones who cannot realistically be ``fined'' by
Microsoft--;that is, lose their Windows rebate. If you pay the
maximum OEM price for Windows, or close to it, you won't be afraid
to load Linux or the BeOS on your customers'' hard drives,
especially if you don't have to account to Wall Street for your
actions. If, on the other hand, your exposure is measured in
millions of dollars per quarter, and you are the CEO of a publicly
traded company, you'll load Windows and nothing but Windows on the
PCs you sell. More precisely, you might load Linux as the OS engine
on hardware other than PC servers. In any event, this represents
only a preliminary look at the returns--;it's too early to draw
definite conclusions.
Now, let's turn to the customer in the title of this column. We
hear that the Windows monopoly is good for customers--;it's a
standard, there's no confusion, users can rely on a trusted
foundation for their work, and so on. But how can this be if there
are so many obstacles placed in the way of a customer's even seeing
that (s)he has some (limited) choices? I'll take one example of what
I mean by choices. One overseas OEM announced with great fanfare
that it would offer some configurations in its PC line with a dual-
boot arrangement: Windows 98 for mainstream applications and the
BeOS for its natural media uses. Great--;exactly what we
wanted--;the specialized media OS peacefully coexisting with the
mainstream platform. Well, not exactly. If you take the machine out
of the box and boot it, the BeOS is nowhere to be seen--;the
computer boots only Windows 98. If you read the documentation
carefully, you'll find out how to ``unhide'' the BeOS.
Then, through a complicated sequence, you'll finally get to the
dual-boot situation. Should the OEM be criticized for this state of
affairs? Again, not MTC.00028027--;0005 exactly. It appears that
the fear of losing Windows rebates intervened to prevent the
customer from being offered a genuine dual-boot system. In fact, as
we verified for ourselves, the steps the customer must perform are
so complicated that it's much easier just to do the simple partition
and BeOS installation possible with our retail product, complete
with a BeOS Launcher icon on the Windows desktop.
Wouldn't one think that Microsoft behaves, in effect, as if the
PC belonged to it, rather than to the OEM or to the customer? It's
is hard to see how the customer and, more generally, the industry,
benefit if one company decides what's good for all, and what the
customer should see or not see.
A Crack in the Wall: Part II
By Jean-Louis Gass,e
Some time ago, I wrote a semi-fictional column regarding the
plight of the CEO of a PC clone company (``A Crack in the
Wall'' ). At a quarterly business review
for Wall Street analysts, the CEO extolled his vision: Giving buyers
more OS choices was A Good Thing. Everything went
well--;customers loved having Linux and the BeOS installed on
their system at the factory, next to the classic Windows. The out-
of-the-box experience was great, the options at boot time were
easily understood and, since customers could delete the system(s)
they didn't want to keep, this was the real thing, freedom of
choice--; without waste. The PC magazines loved the move, we
reaped all the Best Of... awards and generated good will and oodles
of free publicity.
Ah, another thing, the CEO continued. The company lost $50
million dollars this quarter because Microsoft fined us for offering
other operating systems. Their contract with us gives them the right
to increase the price we effectively pay for Windows if we offer
other operating systems. Microsoft even invoked an obscure--;and
confidential--;clause in their licensing agreement and grumbled
that we had no right to use their boot manager, or any DOS code, to
load other operating systems. It's OK for the customer to install a
boot manager him/herself, but you, the PC OEM shouldn't. As a
result, they claim we shouldn't offer the of out-of-the-box
experience I mentioned earlier. Some customer assembly is required.
At this stage, the CEO has lost his audience--;and his job.
As I said at the beginning, this is a concoction. But testimony
is sometimes tastier than what amateur columnists can dream up. What
we have before us is a deposition by Garry Norris, an IBM executive
and a government witness in the antitrust suit against Microsoft. In
his testimony, Garry Norris describes how Microsoft quintupled the
Windows royalties it demanded from IBM, to $220 million. There is
some dispute about the exact numbers, but you get the idea.
How the media treated this is noteworthy. One title read
``IBM breaks ranks...'' This appears to reflect a commonly
held belief: PC OEMs didn't want to break a code of silence for fear
of some kind of retaliation. In private, PC OEMs ``share their
thoughts'' quite freely. They appear to resent being treated as
vassals by Microsoft in its use or abuse of its desktop OS monopoly.
In public, they have to take care of business. Who can blame them?
Business is competitive enough as it is. Why risk a falling out with
Microsoft that will result in a competitive disadvantage? As far as
we know, there is no Antitrust Witness Protection Program, so the
tension between self -interest and the calculus of common good is
understandable. This leads to another thought: Why IBM? Is this an
example of the altruism of an enlightened corporation, or have they
decided they no longer have anything to lose in the PC business, as
various rumors have intimated in the past few months? There has been
speculation--;and denials--;that IBM wanted out of the PC
business, because it has become too commoditized and it's been
impossible for them to make a profit. Some have even read something
of that nature in their multi-year, multibillion dollar agreement
with Dell. Whatever IBM's reason for breaking the code of silence,
their testimony could make this phase of the trial as surprise-
filled as the first Three things you need to remember about me:
1. Alright, alright... I'm a DJ,
2. I changed my mind, OK? (see http://www.djmaytag.com/name/),
3. In any case, I'm STILL not a washer and dryer repairman,
either.
http://www.djmaytag.com/ <- Home page
[[Page 28184]]
http://www.djmaytag.com/303/ <- The TB-303 re-release page
Fortune cookie: Time is nature's way of making sure that
everything doesn't happen at once.
MTC-00028028
From: Patterson
To: Microsoft ATR
Date: 1/28/02 1:08pm
Subject: Microsoft Settlement
VIA E-MAIL
The Honorable Colleen Kollar-Kotelly
United States District Court for the District of Washington, DC
c/o United States Department of Justice
Washington, DC
Dear Judge Kollar-Kotelly:
For the following reasons, I feel compelled to add my voice to
those arguing AGAINST Your Honor approving of the Proposed Final
Judgment (the ``PFJ'') entered into by the United States
of America and several of the States as plaintiffs and the Microsoft
Corp. as defendant (the ``Defendant'' or
``Microsoft'') in the antitrust case known as U.S. vs.
Microsoft Corp. Judge Thomas Penfield Jackson found Microsoft guilty
of being a monopoly and of abusing its monopoly powers, among other
things, and he ordered that Microsoft be broken up into a number of
separate companies, as well as other remedies. On appeal, the U.S.
Court of Appeals for the DC Circuit, in a 7-;0 decision,
overturned several of Judge Jackson's rulings and vacated his
proposed remedies, but the Court of Appeals let one of Judge
Jackson's core rulings stand: Microsoft possesses monopoly power and
unlawfully used that power to protect its monopoly. Both Microsoft's
request to the Court of Appeals for a rehearing and its petition to
the United States Supreme Court for certiorari have been denied, so
nothing changes the fact that Microsoft is a monopoly and used its
monopoly power unlawfully. Now the question arises: What are the
proper remedies in the case in question? The quick answer is that
the proper remedies are NOT those set forth in the PFJ.
Notwithstanding The Honorable Attorney General's pre-nomination
pledge not to go ``too easy'' on Microsoft, the U.S. (and
some of the States) and the Defendant have entered into a
``sweetheart deal'' by entering into the PFJ. Numerous
financial analysts and computer industry experts agree that, under
the terms of the PFJ, the Defendant would conduct ``business as
usual'' should Your Honor approve the PFJ. Too often, we forget
the purpose of remedies. Sure, there should be a rehabilitative
component--; i.e., the remedies to be applied should mandate or
at least encourage the wrong-doer to reform its wrongful ways. But
that fails to see the forest for the trees. There should also be a
punitive component--;i.e., the remedies applied should also mete
out a punishment for the injurious conduct that the wrong-doer
engaged in, if only BECAUSE there was, in fact, wrongful conduct and
concomitant harm.
In the situation before Your Honor, there is no doubt that
Microsoft, the defendant, is in the wrong (it is a monopoly) and has
engaged in wrongful conduct (it used its monopoly powers to harm the
public). The PFJ's terms are simply too generous to the Defendant
and provide few rehabilitative provisions and little if any
punishment.
Right now, being the de facto monopoly in desktop operating
systems, Microsoft simply has no competition. The same could be said
of Microsoft's network operating system (at least for the Intel
platform). Similarly, Microsoft is the de facto monopoly in desktop
application software suites (i.e., its Office suite comprised of
word processor, spreadsheet, presentations, database, personal
information manager, etc., in various combinations and price
levels). The situation will only get worse and Microsoft's monopoly
become even greater if the powers that be allow Microsoft to
implement its .Net and web services strategies. And that is what the
PFJ allows: Microsoft will make some minor--; mainly cosmetic
concessions--;to its desktop operating system, but the PFJ
leaves Microsoft's monopolistic business practices virtually
untouched. With all due respect, Your Honor should also review and
take into consideration the Defendant's past conduct when the U.S.
entered into a settlement with it and tried to rehabilitate
positively its business practices: Microsoft flouted the spirit (if
not the actual provisions) of previous formal or informal
settlements with the U.S. and never really changed its wrongful
business practices. Out of Microsoft's failures to rehabilitate its
business practices arose the current antitrust litigation. Looking
at the situation from another angle, Microsoft had its opportunity
to ``go straight'' and consciously did not. (For some
reason, analogies to the criminal side of jurisprudence keep coming
unbidden to mind.) The Defendant was on probation, if you will, and
then proceeded to openly violate probation. To add insult to injury,
the Defendant as probationer is unrepentant about its continued
wrongful behavior and violation of probation. Has the Defendant
slowed its openly-stated monopolistic strategies? No! Microsoft
rushed to market it's newest desktop operating system, Windows XP,
and is rushing to market its software that implements its .Net
strategy. In so doing, the Defendant apparently hopes that it can
``beat the system'' by relying upon and cynically
utilizing the slow pace of our great system of justice.
Now is not the time to go easy on the Defendant, Your Honor.
This is NOT a case of a first offender, Your Honor, where some
leniency may be in order. Just as I am confident that Your Honor
would NOT go easy on an unrepetenant repeat criminal offender, Your
Honor should NOT go easy on the Defendant. In truth, however, the
only competition Microsoft has is its own internal divisions. The
network operating systems division vs. the desktop operating system
division vs. the application suite division vs. the network
operating system support software, etc., etc. A break-up of
Microsoft is a perfect remedy in that regard. A break-up of
Microsoft along product lines provides an appropriate remedy with
both rehabilitative AND punitive components. I am sure that Your
Honor is considering all possible options in fashioning an
appropriate remedy. I am also sure that any remedy Your Honor
ultimately imposes will be well-considered and carefully crafted. I
cannot know what the exact terms of Your Honor's ultimate remedy
will be, but I do know one thing: The PFJ comes nowhere near
constituting an adequate remedy for Microsoft's sustained and
egregious monopolistic conduct in the case at hand.
For the above reasons, as well as those voiced by others, I
respectfully implore Your Honor NOT to approve the PFJ in the U.S.
vs. Microsoft Corp. case.
Respectfully yours,
Bob Patterson
MTC-00028029
From: James VanAlstine
To: Microsoft ATR
Date: 1/28/02 1:08pm
Subject: Kill Microsoft
Throughout its existence, Microsoft has been stealing and
bastardizing the best ideas of true information technology
innovators. It repeatedly, and still, uses its size and aggressive
nature to suppress competition ans stifle real innovation.
Only an aggressive break-up, heavy fines, and constant future
watch-dogging of this monster monopoly will allow the best and
brightest of technology innovators to thrive and keep the US at the
top of the world's high-tech economy.
Shamefully, the Bush-era Justice Department has lost what little
spine the Clinton era Justice Department had and is now offering
Microsoft a sugar coated settlement.
It's a shame we will one day all be sorry for.
MTC-00028030
From: Tom Laming
To: Microsoft ATR
Date: 1/28/02 1:07pm
Subject: Microsoft Settlement
Please see the attached letter.
Thank you,
Tom Laming
P.O. Box 918
Shawnee Mission, KS 66201-;0918
January 15, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I am writing to voice my support for settling the Microsoft
case. Like many people, I feel that the matter has run its course,
and should be resolved as quickly as possible at this point. While I
understand why people working in the information technology sector
want different programs and operating systems to choose from,
average consumers like myself are more interested in products that
integrate seamlessly. Continued legal action against Microsoft
inhibits their ability to develop products that integrate simply
enough for consumers to use without hassle.
Please settle the antitrust case against Microsoft as soon as
possible. As a consumer, I support their products and would them to
be able to focus on developing their business again.
Sincerely,
[[Page 28185]]
Tom Laming
MTC-00028031
From: Steven White
To: Microsoft ATR
Date: 1/28/02 1:09pm
Subject: Microsoft Settlement
I was just reviewing a few things for any final comments I could
make on the final comment day, and I came across the point that the
proposed settlement does not restrict Microsoft's ability to modify,
alter, or refuse to support computer industry standards.
I would like to add one thing to that.
You may have heard of the ``Halloween Document'' where
a Microsoft staff person outlines ways to squash the open source
movement (LINUX). One way suggested was to use standards slightly
altered to Microsoft's advantage, which would, because of
Microsoft's monopoly position, make them the de-facto standards.
(Bill Gates wrote once in a Microsoft annual report that ``the
way to make money is to set de-facto standards.'') This would
drive the open source software out of existence because, for all
practical purposes, competing software must work with Windows based
software.
Now whenever the question of competition comes up, Microsoft
likes to point to LINUX and say that they have competition. But the
proposed settlement makes it legal for them to do just what they
have outlined as a method for getting rid of one of their
competitors. Does that make sense?
Remember that a lot of people are forced to use Windows. The
common reply to this is that ``no one is holding a gun to their
heads.'' Of course not, but the effect is the same. Almost
everyone buying a computer is going to want or need Windows because
of the need to interact with other computers that use Windows. Thus
no computer maker can be in business without selling Windows.
If standards are twisted so that Windows and a competing program
are mutually exclusive choices, the choice will have to be Windows.
That is unfair and anti-competitive.
We must look to the future. The computer industry should be
based on an underlying foundation of public standards.
Thank you.
Steven White
City of Bloomington
2215 W Old Shakopee Rd
Bloomington MN 55431-;3096
USA
952-;563-;4882 (voice)
952-;563-;4672 (fax)
[email protected]
MTC-00028032
From: Tony Biz
To: Microsoft ATR
Date: 1/28/02 1:11pm
Subject: Microsoft Settlement
To whom it may concern,
I am an independent software developer. I develop software
products based on the Microsoft platform. Microsoft's operating
systems, web browser, and other products have become defacto
standards in the computer industry. This allows us to target our
products to one platform and reach a broad customer base, instead of
having to develop duplicate solutions for many competing platforms.
This reduced software cost and allows us provide additional features
which are a great benefit to our customers.
I am outraged at the unjust prosecution of Microsoft. The
complaint against Microsoft originated not with individual
consumers, or with Microsoft's partners, but with Microsoft's
unsuccessful competitors. Failed businesses must not be allowed to
set the rules for the markets in which they failed. Microsoft is
being punished, not because it did something evil, but because it
was too good, too successful, produced too much value for its
customers. This is a disgraceful inversion of the principal of
justice. A successful business and its products are no threat to
anyone.
The government is punishing Microsoft for producing better
products at cheaper prices than its competitors. Instead of being
persecuted for this, they should be congratulated, thanked, and
honored. The only people who do not like this are Microsoft's
envious unsuccessful competitors, who are not able to produce
products as good and as useful as Microsoft.
This action against Microsoft is impeding progress in the high
tech industry. Instead of focusing on producing the best products
for the cheapest prices for consumers, Microsoft must use their
resources to defend themselves and avoid destruction at the hands of
our own government. In addition, software developers must waste
effort developing duplicate solutions because of the uncertainty
associated with this unjust action against Microsoft. Will the
government, at a whim, decide that Microsoft does not have a right
to exist? Will the government arbitrarily decide to stop Microsoft
from adding features to its products, or discontinue products
certain products? Unknown.
It is disgraceful that at a time when terrorists are trying to
destroy our country from the outside that our own government is
attempting to destroy our country from the inside but attacking and
persecuting one of our greatest and most productive companies.
Microsoft has a fundamental right to exist and control its own
property. Our government's job is to protect these rights, not to
take them away!
Tony Biz
6130 Buena Vista Avenue
Oakland, CA 94618
CC:Tony
MTC-00028033
From: Husker
To: Microsoft ATR
Date: 1/28/02 1:08pm
Subject: Microsoft Settlement.
DOJ,
The Microsoft witch-hunt has gone on long enough. This is
nothing more than a scam in which states hope to obtain money
without officially raising taxes. Microsoft has already agreed to
hide its IEx icon from the desktop
The case against Microsoft is just ?welfare? for Netscape and
other Microsoft competitors, with not a nickel going to those
supposedly harmed by Microsoft: the computer user
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
I urge you to end this debacle immediately
Mike Kasson
CC:[email protected]@inetgw
MTC-00028034
From: Donald C. Glegg
To: Microsoft ATR
Date: 1/28/02 1:11pm
Subject: Microsoft
I use the microsoft programs all the time and they are made so
us older guys can understand and use them.
Please don't keep picking on them. I for one am for them
100%!!!!!!
Thanks!!!!
Donald C. Glegg
406 N. Coffman Street
Park Hills, Mo 63601
MTC-00028035
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:10pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Kathlyn Messina
6870 Manasota Key Road
Englewood, FL 34223
MTC-00028036
From: Chris Brown
To: Microsoft ATR
Date: 1/28/02 1:14pm
Subject: Microsoft Settlement
19414 46th Avenue Northeast
Lake Forest Park, WA 98155
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to encourage the Department of Justice to accept
the Microsoft antitrust settlement. This case has been stretched out
over three years; it needs to be settled. Now that there is a
settlement available and the terms are fair, I think that the
government needs to accept it.
All of the major issues in the suit have been dealt with.
Microsoft has agreed to give computer makers the flexibility to
install and
[[Page 28186]]
promote any software that they see fit. Microsoft has also agreed to
release part of the Windows intellectual property to its competitors
in order for them to develop software that is more compatible as
well. To settle the suit, Microsoft has agreed to a long list of
concessions. This list is fair and should be accepted.
Microsoft, the industry, and the government all need to move on.
Please accept the Microsoft antitrust settlement.
Sincerely
Jesse C. Brown
MTC-00028037
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:10pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Kathlyn Messina
6870 Manasota Key Road
Englewood, FL 34223
MTC-00028038
From: William Stone
To: Microsoft ATR
Date: 1/28/02 1:14pm
Subject: Microsoft Antitrust case settlement
Please see attached letter.
William w. Stone
82 River Drive
Appleton, WI 54915
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing as a retired American who is in support of
Microsoft. I feel the settlement reached between Microsoft and the
Department of Justice was fair and reasonable. There is no reason to
drag it out further.
I believe the terms of the Microsoft antitrust settlement of
November 2nd were reasonable and weft thought out. They require
significant changes in how Microsoft develops and markets its
product. Certainly, other computer makers will now find it easier to
work with other software companies'' software that directly
competes with Microsoft's Windows system. I'm sure you have looked
at this matter thoroughly and will agree to end this case soon. I
believe that revisiting the case is continuing to have a negative
effect on our economy and slowing its recovery. For the benefit of
Wisconsin and the country as a whole, I ask you to leave the
settlement be and go on with the business of the country.
Sincerely,
William Stone
cc: Representative Mark Green
MTC-00028039
From: Thomas Canfield
To: Microsoft ATR
Date: 1/28/02 1:16pm
Subject: 718 Saco Court
718 Saco Court
Saint Augustine, FL 32086
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The IT industry and the economy have been affected enough by the
suit brought against Microsoft by the Department of Justice. The
litigations have wasted time and tax dollars and it is time this
matter is resolved. I am of the opinion that Microsoft has done more
than they should have in the first place with regards to the
settlement. Microsoft has in part, been responsible for the
stabilization of the economy in the 90's and I feel that they should
be allowed to continue with their business.
Microsoft has agreed to conditions that will allow for more
competition in the IT industry that will in turn benefit the economy
and the consumer. In order to do this Microsoft will give
competitors the ability to make software that is compatible with
Windows, and they will not retaliate against them. Also, they will
be monitored by a three person technical committee that will make
sure Microsoft adheres to the terms of the settlement and it will
also help settle disputes. Clearly Microsoft has done more than what
they should have to settle this and so should the Department of
Justice.
The country's economy and its citizens will benefit from ending
this whole mess. Microsoft should be allowed to return to business
as usual. Thank-you.
Sincerely,
Thomas Canfield
MTC-00028040
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:15pm
Subject: Microsoft Settlement
Your Honor,
I'm writing to voice my objections to the proposed settlement in
the United States vs. Microsoft case. Microsoft has profited greatly
from its anti-trust violations, and this settlement would allow the
company to keep all of those ill-gotten benefits. Furthermore, the
settlement doesn't prevent Microsoft from wielding its monopoly
power again in the future. The proposed settlement only serves to
expand Microsoft's monopoly by allowing them to increase their
presence in perhaps the only market segment they don't already
dominate--;the education market. I ask you to reject the
proposed final judgment.
Respectfully,
Connie Deal
19691 N. 66th Ave.
Glendale, AZ 85308
623-;572-;2622
MTC-00028041
From: Tejas Naik
To: Microsoft ATR
Date: 1/28/02 1:13pm
Subject: Comments
I believe Microsoft should be broken up. This will spur a wave
of innovation in IT industry and offer consumers choice. It's in the
interest of consumers/developers. While, there may be a proposal of
settling a case without breaking up Microsoft, I'm highly skeptical
that Microsoft which gave such a hard time to DOJ will execute the
settlement right. The only way to be assured is to breakup.
Thanks
Tejas
MTC-00028042
From: Tony Christopher
To: Microsoft ATR
Date: 1/28/02 1:17pm
Subject: Microsoft Settlement
To DOJ reviewers;
I believe that the settlement the US government has made with
Microsoft is a travesty that will allow MS to continue with its self
benefiting, conquer-all strategies and tactics. And, over the near
future, uncontrolled, Microsoft will create more injustice that it
has in the Internet Browser situation. The data for my argument
comes from looking at the emerging area of standards for personal
identity on the Internet.
I work in the area of virtual community technologies and
services--;see bio link below. I believe that collaboration/
connections among people, worldwide, is one of the most powerful,
forthcoming benefits of computer-communications technologies. I have
researched and learned a good deal about the importance of
``identity'' on the net. Microsoft's Passport system,
distributed through their pervasive Windows OS, could become a major
mal-influence in the emergence of holistic identity services. Here
is the data:
Gartner Group has recently completed a study of 2100 users of
online/web services; the study focuses on consumer web identity and
privacy issues--; http://techupdate.zdnet.com/techupdate/
stories/main/0,14179,2830912,00.html Summary: ``Despite
consumers'' apathy and distrust, identity services will succeed
because they will be embedded into Windows XP and the Internet
services that consumers will use. Accordingly, Gartner predicts that
40 million online U.S. consumers automatically enrolled in identity
services will use them to access an average of three Web sites each
month by the end of 2003. ``
This data substantiates that consumers will lose in the future
(versus the econometric models likely used in the trial to show how
consumers have been harmed in the past) if Microsoft maintains as
one business both the operating system and the application software
& Services businesses. One of the
[[Page 28187]]
conclusions that can be drawn from Gartner's study/data is that
Microsoft's monopoly will result in consumers putting up with the
weak privacy-control that will result with Passport--;whereas
the data shows that consumers want strong privacy-control. If
Microsoft were to be two companies where the web services were split
out from the WindowsOS business more competitive dynamics could
prevail in the coming generation of net services i.e., Passport
would have to compete with the Java authentication/identity
offerings--;consumers would have more choice and more privacy-
control alternatives would likely be available.
I want to go on record as being strongly against the weak terms
of the antitrust settlement with Microsoft. They will cause more
injustice and harm in the future than they have in the past if we do
not take the current judgment against them to mete out remedies that
will protect the Internet industrial and consumer participants from
the force of this conquering gorilla.
A.J. Christopher
These views reflect my own personal beliefs and do not represent
those of my employer.
Anthony J. Christopher
Community Practice Manager
Mongoose Technologies, Inc. www.MongooseTech.com
Bio: www.MongooseTech.com/RealCommunities/Tony.html
E-mail: [email protected]
Phone-Voice Mail: 650-;224-;4567
CC:Tony Christopher
MTC-00028043
From: Donna Rogers
To: Microsoft ATR
Date: 1/28/02 1:15pm
Subject: Microsoft Settlement
Judge Kollar-Kotally,
I urge you to reject the proposed final judgment in the U.S. vs.
Microsoft case. Every court has found that Microsoft violated
antitrust laws, making billions of dollars in the process. This
proposed settlement would allow the company to keep virtually all of
those illegal profits! There is also no provision that would prevent
Microsoft from continuing its anti-competitive behavior. In fact,
the monopoly is validated and furthered under the PFJ through the
dissemination of Microsoft software to our schools. And Microsoft
cannot be allowed to essentially police itself.
Please vote against the PFJ in the interest of the public.
Sincerely,
Donna Rogers
3522 Pine Ridge Way
San Jose, CA 95127
408.729.7468
CC:[email protected]@inetgw
MTC-00028044
From: Robin (Roblimo) Miller
To: Microsoft ATR
Date: 1/28/02 1:14pm
Subject: Microsoft Settlement
A problem just starting to rear its head in regards to
Microsoft's desktop monopoly is the company's curent attempt to
extend it to all Internet transactions through its .NET initiative
and the accompanying C# programming language that is designed to
kill Java, JREE, and other non-Microsoft Web interaction tools.
If it is the DoJ's intent to help Microsoft kill off all
competitors; to in effect become the sole controller of all Internet
standards, then the current proposed settlement should be allowed to
stand. If the DoJ wants to foster computer industry competition and
innovation, the proposed settlement will be withdrawn, and Microsoft
will be penalized harshly enough for its past lawbreaking that its
management will not be tempted to break the law in the future. As a
U.S. citizen who is employed in the IT industry, I would rather see
competition than have one company control our entire computing
infrastructure. I think you will find that my opinion is shared by
almost all people in this business who do not work directly or
indirectly for Microsoft. It is sad that the United States
Department of Justice is not protecting citizens'' interests,
but has decided to ``lay down'' for a major corporate
campaign contributor. Apparently the SEC did pretty much the same
thing for Enron, though.
I wish I knew a way to root out this corruption, but it's hard
when both the people who make the laws and the people who enforce
them are for sale to the highest bidder. Poor America. I fear for
our future.
Robin Miller
206 52nd Ave. W.
Bradenton FL 34207
phone 941-;704-;0779
MTC-00028045
From: Robert L. Butler
To: Microsoft ATR
Date: 1/28/02 1:16pm
Subject: Microsoft Settlement
Robert L. Butler
99 Woodland Avenue
Summit, NJ 07901-;2001
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
BY E-MAIL
Dear Mr. Ashcroft:
I am writing to give my support to the agreement reached between
Microsoft and the Department of Justice. I did not support the
initial lawsuit. This suit was brought more out of political and
professional enmity than any supposed damage to the consumer, the
necessary basis for antitrust action. Bill Gates produced a better
product, the standardization of computer software. Granted,
Microsoft was aggressive, and at times heavy- handed.
Microsoft has been chastened though. Both parties agreed to a
settlement that is, for the most part, fair. Microsoft has agreed to
open the company up more to third party innovation, has agreed to a
uniform price list, has agreed to a technical oversight committee,
and has agreed to interface disclosure. Microsoft is obviously
trying to meet the demands of the Department of Justice.
It is time to move forward. We have more important things to
worry about. We need to put our economy back on track; allowing one
of our major companies to get back to work is one way to do this. I
urge you to give your support to this measure.
Sincerely,
Robert L. Butler
MTC-00028046
From: richard sonnier
To: Microsoft ATR
Date: 1/28/02 1:13pm
Subject: [Fwd: Microsoft kills Real World/Great Plains Classic]
Reaf World Classic is a ``COBOL'' accounting running
on many platforms Unix/Ibm Aix / Dos and many others (i.e. any os
which has Mico Focus Cobol).
Great Plains Bought Real World.
Micro soft bought Great Plains in 2001.
Microsoft scrapping Classic accounting package.
Microsoft only option to 20,000 customers is you must at extrem
expense convert to windows based packages?
Richard L. Sonnier Jr.
Gulf Central Systems
800 Mire Street
Houma, La. 70364
985-;851-;6674
800-;367-;3094 (WORK)
[email protected]
MTC-00028047
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:19pm
Subject: Microsoft Settlement
Dear Atty Gen. Ashcroft:
My wife and I are extremely pleased that the settlement
agreement which has been reached between Microsoft and the US
Justice Department. It is my understanding that the agreement is
currently undergoing a sixty day period in which the public is
encouraged to provide input on the matter.
Let me say that we fully support this settlement because it is
good for the country, the economy and technological innovation.
Microsoft has accomplished so much and has contributed greatly
to the success of this great country of ours.
Please STOP the litigation, enough is enough. Our legal system
is running rampant and is destroying our Free Enterprise System
which has made our country great.
My wife and I plead with you to stop the litigation and settle
the matter.
Thank you for your consideration,
Frank & Francesca Nuovo
730 Woodcrest Lane
Monterey, Ca 93940
MTC-00028049
From: Bernard Rogers
To: Microsoft ATR
Date: 1/28/02 1:20pm
Subject: Microsoft Settlement
Honorable Judge Kollar-Kotally,
I'm a concerned citizen requesting that you reject the proposed
final judgment in the Microsoft antitrust case. The public would not
be served by the slap on the wrist, as Microsoft would lack any
deterrent from repeating its offenses.
The proposed final judgment also fails to address the issue of
bolting software to its operating system that first led to this
suit. It
[[Page 28188]]
will thus be free to repeat the antitrust violations that have
earned it billions of dollars a year.
Respectfully,
Mr. Bernard Rogers
3522 Pine Ridge Way
San Jose, CA 95127
(408) 729-;7468
CC:[email protected]@inetgw
MTC-00028050
From: Bill (038) Carol Roberts
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
Thank you for considering the attached letter.
W. S. Roberts, Jr.
2113 Primrose Lane
Martinsville NJ 08836-;2220
Home: 732-;469-;0824
Fax: 732-;469-;0639
Cell: 732-;245-;8049
E-mail: [email protected]
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing because I am in support of ending the antitrust
lawsuit against Microsoft. Microsoft's ability to operate under
normal conditions remains compromised as long as the litigation
continues, and settling the case according to the terms agreed upon
in November would be the quickest and fairest way to move on.
The settlement is a reasonable conclusion to the case and will
foster market growth for Microsoft's competitors, while still
assuring the security of Windows. Easing restrictions on computer
makers who license Windows will ultimately enable those companies to
offer a broader selection of programs from competing developers.
Given that, it seems as though the Department of Justice's goal
would be achieved.
I am urging you to settle what has already been too long a case.
The public and Microsoft are ready to put the matter behind them,
and the government should be as well.
Sincerely,
William S. Roberts, Jr.
2113 Primrose Lane
Martinsville, NJ 08836
MTC-00028051
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
8 Ramblewood Drive
Longview, TX 75605
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
Wahington, DC 20530-;0001
Dear Mr. Ashcroft:
Thanks for the effort and direction that you and your
departments are taking. My family and I approve of the leadership
and wisdom that the Bush administration is taking.
It is my understanding that Microsoft and the government have
settled an antitrust lawsuit in which Microsoft has agreed to grant
computer makers broad new rights to configure Windows so as to
promote non-Microsoft software programs that compete with with
programs included within Windows. In my opinion, no more federal
litigation against Microsoft is acceptaable beyond this agreement.
Sincerely,
William R. Park
MTC-00028052
From: Catherine Brett
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Please let the present settlement stand.There has been more than
enough debate on the subject.
MTC-00028053
From: Christine Rogers
To: Microsoft ATR
Date: 1/28/02 1:26pm
Subject: Microsoft Settlement
Your Honor,
Microsoft must be forced to play by the same rules as everyone
else, and the proposed final judgment before your court fails to
accomplish that. I ask you to reject it.
For years, strong-arm tactics on Microsoft's part have cut down
promising high tech companies and hurt innovation here in Silicon
Valley. The courts have ruled against Microsoft--;now let's
bring about a solution that actually causes them to cease their
anti-competitive activities!
I am also concerned that Microsoft's monopoly would only be
broadened by the giving of its software to schools. It costs the
company virtually nothing to do so, yet the harm to competitors like
Apple is enormous.
Please vote against the PFJ.
Christine Rogers
3522 Pine Ridge Way
San Jose, CA 95127
408.729.7468
CC:[email protected]@inetgw
MTC-00028054
From: Kevin Clark
To: Microsoft ATR
Date: 1/28/02 1:26pm
Subject: Microsoft Settlement
From: Kevin D. Clark
191 Mitchell Road
Nottingham, N.H. 03290
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Under the Tunney Act, I wish to comment on the proposed
Microsoft settlement.
I am a professional software engineer, with 10+ years of
experience in industry. During these 10+ years, I have seen
Microsoft grow to dominate the computer software market. Microsoft
has achieved this dominance through anti-competitive practices, and
I have seen many novel and innovative technologies crushed by
Microsoft, all in the name of furthering Microsoft's iron grip over
the software market. As someone who is both passionate about working
in this field, and as someone who tries to innovate in this field as
well, Microsoft's actions over the last few years are very
distressing.
I have read the Proposed Final Judgement, and I want to say
this: the Proposed Final Judgement will allow many exclusionary
practices to persist. So, I don't support this judgement.
(unfortunately, due to time constraints, I cannont enumerate all of
the ways in which this judgement is flawed--;if you are looking
for more specific complaints, please refer to: http://www.kegel.com/
remedy/remedy2.html
I consider the summary of the problems with the Proposed Final
Judgement on this web-site to be excellent. )
Please work to fix this judgement. If you leave any loopholes in
this judgement, there is much precedent to show that Microsoft
*will* exploit these loopholes to maintain its illegal monololy.
Regards,
Kevin D. Clark
kevin--;d--;[email protected]
MTC-00028055
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Let Microsoft do what they do best and let s quit spending tax
payer dollars to beat the subject over the head. Microsoft may have
created a monopoly but was there anyone smart enough to come up with
the better product.
MTC-00028056
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Mocrosoft is largely responsible for the greatest technology
advance the world has ever seen. MS produces good products at ever-
lower prices. Competitions is alive and well in the
industry--;others need to just make their contribution and let
the market buy it or not. The Department of Justice (under President
Clinton) and the various states Attorneys General are after money
and power--;let them show what they can produce. So far I havn t
seen what they contribute. They have not protected the public at all
rather they inhibit industry advancement. And of course they want
millions. (Is there any other thought for these guys?) Let them earn
it in an honest way: hard work and imagination. End the suit
immediately by taking the least intrusive road out. Microsoft should
grow or fail by how it treats the American consumer and not by
dictates by government employees. In fact the failed government
employees should be forced to relinquish their own pay for all the
harm they ve done to innovation and to the American public.
MTC-00028057
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Microsoft has done more to stimulate the economy has provided
more jobs and contributed more to education than any other company
or individual anywhere. To say nothing of what they have done for
[[Page 28189]]
technology. This country was built on competition and he epitomizes
competition.
MTC-00028058
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:17pm
Subject: Microsoft Settlement
With the current state of the economy we need Microsoft
concentrating on business without the distractions of this suit
which should have been settled long ago.
MTC-00028059
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:17pm
Subject: Microsoft Settlement
The lack of credibility of the Attorneys General opposing the
Governments settlement is strictly a play for publicity and grubbing
for money and should not be permitted to proceed farther. I believe
the Government s acceptance of the existing settlement is
imperative. Thank you for listening. R. H. Ewald
MTC-00028060
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
please settle with mr. gates perposal so we the tax payer are
not burdened any further
MTC-00028061
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I am writing to urge you to support the proposed Microsoft
settlement and end this controversy's tenure in the federal arena.
The United States Government has in past administrations provided
its citizens with ample evidence of what results when overzealous
and uninformed public representatives take regulation of successful
private industry to extremes in the mistaken belief that action
against private industry will always end in providing a public
benefit. Past government actions against AT&T have broken a
national treasure Bell Telephone Laboratories and increased prices
while decreasing efficiency and customer service in the process. .
Microsoft must still contend with several states lawsuits but I
believe it s time and best for all parties to get beyond this
ridiculous activity and allow everyone to return to the business at
hand. The settlement will compel Microsoft to open its systems to
competitors software and use. A committee has been provided in the
settlement to monitor Microsoft s future business practices to
assure compliance with the settlement s terms. I believe that for
the sake of our national economy and the continued success of this
vital industry this matter should be settled. As a citizen I feel my
technological future will be enhanced by innovations which work and
that is what Microsoft is all about.
MTC-00028062
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Microsoft has been has helped the US & other countries to
emerge into world leading companies. Netscape & CEO James
Barksdale was bundling features years ago & was upset with
Microsoft turning the tables on them when Mr. Barksdale conceded
engaging in in simular practices & stating He didn t recall.
Soon after Netscape merged with another company. Who was calling the
kettle black? During the 1940 s U.S. Steel went through similar
litigation & settled with- out killing the company as Judge T.P.
Jackson was trying to do to Microsoft. Who incidentally was not
qualified to make this decision. I believe this company has suffered
and paid more than their share through unreasonable and excessive
charges. The US has encouraged innovation competition &
development of technologies. This built our country and made us
strong to prevent any Bleeding Hearts to damage and hurt us such as
the Ben Laden's. If anyone was wielding a club in these negotations
it was Apple not Microsoft. Will AOL be next? What about the merger
between AOL and Time Warner? This changed the competition land-scape
in one of the most competitive industry in the world. I think it is
time to reflect and close the litigation against Microsoft before
the Bleeding Hearts close one of our leading companies in our
nation.
MTC-00028063
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
The settlement (proposed)is still canted toward the government.
I believe that the millions of $$ spent on this investigation far
surpasses the $$ value to the consumer. What Microsoft did/is doing
is just plain good business sense and I don t think they should be
codemned for that.
Thanks!!
MTC-00028064
From: t--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
It is time to end this law suit. The people did not suffer from
Microsoft integrating the browser or in essence offering it free. In
fact the only suffering on the part of the people was the amount of
tax payer money spent by the government on the case. The settlement
that is there now is in the best interest of the American people and
the technology industry.
MTC-00028065
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I think the settlement reached with Microsoft on Nov. 3rd should
be agreed to and bring this lengthy antitrust case to an end.
MTC-00028066
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Stop persecuting innovative firm
MTC-00028067
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I believe the ruling was fair and serves the best interest of
both Microsoft and the government.
MTC-00028068
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I am very satisfied with the settlement and find no use in any
continuing litigation. I feel that the litigation could have been
handled in a much better way and that it was motivated by special
interests. In any case litigation should end. thank you. Susan Bates
MTC-00028069
From: N M
To: Microsoft ATR
Date: 1/28/02 1:26pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I hereby submit my objection to the Proposed Final Judgement
agreed upon between the Department of Justice and Microsoft. I
understand that there are several underlying errors attributed to
the Proposed Final Judgment.
One noticeable flaw encompasses an inept enforcement device
implementing restrictions. The settlement in other words closely
monitors and screens all of Microsofts business activities. This
close scrutiny insures MS complies with all restrictions entailed in
the agreement.
A three man compliance team will oversee and insure that
Microsoft comply with the stated rules and regulations. Yet, this
three-man oversight committee will be composed of the following: one
appointee from the Justice Department, one appointee from Microsoft,
and another appointee chosen by the two existing members. In turn,
Microsoft will control half of the oversight team.
In the likelihood of any enforcement proceedings, all findings
by the oversight committee will not be allowed into court. The sole
purpose of the committee is to inform the Justice Department of all
infractions by Microsoft. In addition the Justice Depart will launch
its own investigation into the matter and commence litigation to
halt all infractions. When all is said and done, the oversight
committee is just window dressing, who will not strictly oversee
Microsofts business moves?
In my opinion, the Proposed Final Judgment does not provide
appropriate restrictions against Microsoft. What reassurance do we
have against Microsofts illegal and illicit activities? I can assure
you that the Proposed Final Judgment does not effectively nor
sufficiently address the question. In conclusion, I submit your
honor my objection to the Proposed Final Judgment in the Microsoft
case.
Sincerely,
Adorabell Bonefacio
951 2nd Ave
San Mateo, CA 94401
[[Page 28190]]
MTC-00028070
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I am amazed by the statements that Microsoft (MS) has cost the
consumer since I am convinced that I have saved at least 60% over
what I would have paid without the their operating system. I
remember the days that the people around me made fun of MS due to
the fact that the included OS support was so rudimentary. MS has
designed better built-in support over the years and now the same
people say it is too good and is driving other people out of
business. (Browsers have been in all operating systems for
decades!!) True competitors are having a hard time coming up with
something better to sell. This is hard on them but does not increase
the cost to the consumer. If they have a better gidget I have the
choice of using the built-in capability or buying theirs. A really
good choice. I can go on and on but I will only say one more thing.
Given a specific function it is always cheaper to have one designer
selling to 10 million vs 10 designers selling to 1 million apiece.
Since it takes the same number of people to design the function and
each is sold to 1/10th the number of consumers the cost to the
consumer is 10x the one designer scenario. We have the battle of
lower cost to the consumer vs more jobs for designers!!
Sincerely
Roger Bagwell HW/SW Engineer
MTC-00028071
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
NetScape should spend less time complaining and a lot more time
designing a program that will make them competitive in the market.
There has been enough tax- payers Dollars wasted on this already and
the Court has handed down a JUST ruling so lets get on with the more
important things--;- Like Enron for instance.
Sincerely Robert J Reist
MTC-00028072
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:17pm
Subject: Microsoft Settlement
the witch hunt has gone far enough. let microsoft serve the
public and its shareholders and get out of its way.
MTC-00028073
From: Microsoft ATR
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Consumer choices not government management of innovation are the
best marketplace regulators. New regulations and unnecessary
lawsuits against technology companies will stifle innovation and
result in consumers paying higher prices.
MTC-00028074
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Let freedom win out here and get this fiasco over with.
MTC-00028075
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I feel that the proposed settlement between the Justice
Department and Microsoft is fair. I see no reason to drag this
settlement out any longer.
MTC-00028076
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
A bunch of jealous idiots trying to destroy Microsoft will do
wonders for China India etc. I m not from the US and you fools are
going to really regret losing control of this industry. You can t
attack the foundation to 25% of your economy without noticing an
impact downturn layoffs recession mean anything to you.
MTC-00028077
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I strongly support the agreement reached with Microsoft. Let s
roll em!
MTC-00028078
From:
leigh--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Microsoft is a wonderful example of American enterprise and
achievement. They deserve the thanks of all Americans who care about
our economy and global competitiveness. It makes no sense to try to
take away through the legal system what Microsoft has assembled
through their own hard work.
Please leave them alone and maybe thank them for doing such a
good job!
MTC-00028079
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:17pm
Subject: Microsoft Settlement
THE FEDS LET US DOWN MICROSOFT NEEDS TO BE SEVERELY RESTRICTED
IN THE FUTURE AND PUNISHED FOR PREVIOUS ANTI-COMPETETIVE ACTIONS
MTC-00028080
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
There has been enough court cases. It s time to settle. This
settlement sounds just fine. Don t keep beating a dead horse..
MTC-00028081
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I think it was pure BS to go after Microsoft and spend all of
the taxpayer s money for what amounted to a political witch hunt.
Why don t you people look into the health insurance companies who
are not willing to provide coverage for people who need it. But they
are glad to take the premiums!
MTC-00028082
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
The settlement should be agreed to. The litigation has taken
enough time and money. Now it is time to go after the gas and Oil
companies.
MTC-00028083
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
It is time to put this case to bed. It is the job of the courts
to protect the consumer not competators. From the start this case
has been all about vicious compititors fighting with each other and
then attempting to get the Federal and State courts to settle the
fight for them. The consumer never was harmed by Micorosoft s
actions but rather was aided by having interconnected working
program with the operating program making the total computer
operation more user friendly. If you want to take a shot at a
company that has harmed and taken advantage of the consumer go after
AOL Just change the payment method. I do not think that Microsoft
should be allowed to give equipment and Micorosoft software to the
schools because this would give Microsoft an advantage over Apple.
If they have done wrong make them buy Apples computers and Apple
compatable software. You might also give the schools the right to
chose Apple or IBM compatable and make Mirosoft pay for it. If the
court has been unable to prove a monopoly that has harmed the
consumer than the case should be thrown out and AOL Oracle and the
rest of the cry babys should have to pay the court costs. As a
taxpayer I do not think that it is my responsiblity to pay it.
MTC-00028084
From: sandford moser
To: Microsoft ATR
Date: 1/28/02 1:27pm
Subject: Microsoft Settlement
Dear Ms. Hesse:
I would like to go on record as saying that the Microsoft
settlement should be accepted right away. I feel that delaying it,
only makes everything more costly to the public. Court costs
increase. The cost to Microsoft increases. It becomes a lose, lose
situation rather than a win, win situation.
Thank you for the opportunity to respond.
Sincerely yours,
Sanford Moser
21700 Greenfield Rd.
Suite 271
Oak Park, MI 48237
248-;968-;4700
MTC-00028085
From: [email protected]@inetgw
[[Page 28191]]
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement please settle with mr. gates perposal
so we the tax payer are not burdened any further
MTC-00028086
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I clearly want the court to accept the settlement. It s fair and
the litigation has gone on to long.
MTC-00028087
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
When free enterprise and beaurocratic elements collide history
reveals that the forces and energies of free enterprise and industry
offers the only viable alternative for progress. The Microsoft
senario is a storybook example of industrial leadership leading the
way to beneficial development for enterprises both large and small
in the scope of macroeconomics. HOORAY FOR THE SETTLEMENT!!
MTC-00028088
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Give it up quit beating a dead horse.Too much money has been
spent already. Microsoft will just pass the cost to the purchaser to
defend thier position of free interprise.
MTC-00028089
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
WHERE WOULD WE BE WITH OUT MICROSOFT. I CAN OTHER THINGS A LOT
WORSE THAN MICROSOFT. MY VOTE FOR BILL GATES
MTC-00028090
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
I believe that the Federal Government and all other State
governments should now leave Microsoft alone. The court has made it
s decision and now we should move on to more important things. Just
because the competition is jealous that they did not invent the same
things as those working for Microsoft is no reason that they should
have any right to capitalize on the hard work of another. I say move
on there are more important problems to plague this country. Deal
with them.
MTC-00028091
From:
das474--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:18pm
Subject: Microsoft Settlement
Leave well enough alone. this is only going to cost people that
use computers more mony. Netcape & AOL can be downloaded on any
computer free.
MTC-00028092
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:27pm
Subject: Microsoft Settlement
The ``case'' against Microsoft was, is and shall
forever be a sham. The ``problem'' is that Gates and
Microsoft got lucky and their competitors didn't. MS was in the
right place at the right time and did the right things... the bozo's
who are suing them didn't luck out. Let the market decide if
Microsoft is a company that the public wants to do business with.
Microsoft does not ``own'' the market any more than it
owns the souls of it's dustomers. People choose Microsoft products
becasue, despite MS's faults, the products are what it's customers
want and need and are reasonably priced.
Let the government do what it does best--;nothing!!
Dimitri Emelianoff
CC:[email protected]@
inetgw
MTC-00028093
From: Chris Waterson
To: Microsoft ATR
Date: 1/28/02 1:28pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I work for Netscape Communications Corportation, on the Netscape
browser product. And I am tired of reading uninformed columns in
newspapers and answering uninformed questions from friends about
`how Microsoft won the browser war ``fair and
square'''. Let's not forget that this is not about the
situation --;as it is today--;, it's about --;what
Microsoft did that was against the rule of law--;. Microsoft has
repeatedly flouted the law of the land, and for this, they deserve
to be punished.
The settlement fails to terminate the Microsoft monopoly, which
they have proven time and again to use aggressively and illegally to
expand into other markets. What guarantee do we have that Microsoft
will not continue to ``bolt'' new products on to their
operating system in the name of ``innovation'', crushing
other fledgeling businesses along the way? How will future
innovators protect themselves from Microsoft's entry into a market?
Under this settlement, Microsoft will be only marginally
penalized for its illegal behavior. Microsoft --;broke the
law--;--;every court that has reviewed this case has
agreed--;but yet it will be allowed to retain the profit from
its plunder!
I realize that my viewpoint in this matter is far from
objective, but I hope that you'll realize that the fate of
consumers, entrepreneurs, companies, and even industries rest in
your hands right now. Microsoft has proven time and again that they
have no regard for the law. They are a threat to innovation in an
industry that has powered the economy for the last ten years, and is
likely to be a significant economic force for the next fifty years.
Yours,
Chris Waterson
437 Hoffman Ave.
San Francisco, CA 94114
415-;642-;3522
CC:[email protected]&@inetgw
MTC-00028094
From: Robert A. Gerhardt, RFC
To: Microsoft ATR
Date: 1/28/02 1:28pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Dept. of Justice
950 Pennsylvania Boulevard NW
Washington DC 20530
January 28, 2002
Dear Mr. Ashcroft,
I am writing as an investor and as one who helps other people
invest in the American capitalistic system. I note the country has
had extraordinary difficulties financing the high tech companies who
are our hope in improving productivity. This all started about the
time that the competitors to Microsoft goaded the government into
starting a federal lawsuit. The investing public worried that the
leading innovator in computer generated productivity improvements
was going to be attacked and wounded by the government, why wouldn't
the same happen to others in the industry? This was a major
contributor to the failing confidence by the investing public.
I have read about a reasonable settlement that has been
negotiated between Microsoft and the government. I understand that
it is under public review at this time. Let me add my voice to the
millions of shareholders that depend on the American capitalistic
system to continue to improve productivity, profits and expand. I
believe that the government has had its opportunity to make its
point. Microsoft has made good faith adjustments in its operations
and has agreed to share ``secrets'' with their
competitors, something the competitors had sought from the outset.
It is time to lift this cloud of intimidation from the technology
community and allow our economy to expand once again. I would hope
that the tragedy of Sept. 11th would help all of us including the
government refocus on our nation's priorities. It is time to move
ahead with improving our people's living conditions and maintaining
our economic leadership of the world.
Most Sincerely,
Robert A. Gerhardt
RG/tes
MTC-00028095
From: Dirk Valcke
To: Microsoft ATR
Date: 1/28/02 1:28pm
Subject: Microsoft Settlement
Dear Sir or Madam:
As a consultant in the computer industry I come in contact with
many people in many different organizations.
These organizations range from first class Financial
Institutions to small enterprises with only a few employees. For all
these organizations and especially for the thousands, even millions
of small and mid-sized companies Microsoft* provided an easy to use,
cheap, out-of-the-box usable computing environment.
[[Page 28192]]
As you probably know and experienced yourself, even a child can
install and use the Windows* and Office* platforms. To find a
platform that is as easy to use and that keeps the whole computing
experience affordable we can only look at Apple*. The giants in the
industry, especially SUN, could take some lessons in user-
friendliness, ease of use and low-cost from both Apple* and
Microsoft*. The initiative of the Linux* group seems to go in the
right direction, but the product is not yet at the level we are used
to (user interface, ease of use, support).
When I consider the enormous number of companies and people, who
earn their living by building on an ever-evaluating platform,
persons that study these new versions and implement ever more
complex and at the same time ever easier to use software, I am
amazed. When I try to imagine the number of people that use these
inexpensive, easy obtainable systems, at work, at school and home, I
am amazed. When trying to imagine even the very Internet that
allowed me to send you this message, without the low-priced, easy to
use computers, I wonder if it would have been possible!!
The inexpensive computers and software are a result of volume.
The volume is the result of popularity. Popularity is the result of
content and happy users! I hope you advice and ruling will allow
current and future enterprises to work on even more mind blowing and
fantastic applications and systems. That it will allow the
customers/users to benefit from ever more features and
possibilities.
With kind regards,
Dirk Valcke--;Director.
Advanced Computer Technologies
Valcke bvba ? Kortrijk Office
Min. A. De Clercklaan, 35
8500 Kortrijk ? Belgium
Valcke bvba ? Brussels Office
Marktstraat, 46 BUS 8
1210 Brussels ? Belgium
MTC-00028096
From: arlen-
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Microsoft should not have been charged in the first place. Our
leaders tend to encourage less than the best from people.
MTC-00028097
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please leave Microsoft alone. Together we can fight political
corruption in this country. Thank you a proud citizen
MTC-00028098
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please settle the suit and then leave Microsoft alone to offer
new technology to the world markets.
MTC-00028099
From: tomas.palmer@i-
codesmith.com@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
This attack on Microsoft was the cause of our current tech
recession. If Microsoft competitors cannot not do better then
Netscape and think Java is the key to the future they deserve to
lose in the marketplace.
MTC-00028100
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I am not speaking on behalf of Purdue University. However as the
IT manager for the Purdue University School of Education I have
found Microsoft to be a friend of Education. Microsoft has been a
friend to Education for many years even while other companies which
have a reputation for being education friendly have taken advantage
of Education over-priced their products and given Education little
or nothing. Unlike other companies that have been hostile towards
education and ignorant of our needs Microsoft has delivered quality
products for cheap and in many cases for FREE! This long-term
commitment demonstrates to me that Microsoft cares for students and
educators. The fact that the vast majority of our students *prefer*
Microsoft products to other products and operating systems
demonstrates this. I urge you to allow the settlement and resolution
of the Microsoft case. Please allow what I consider to be one of our
countrys' National Treasures the freedom to continue supporting and
inspiring the work of Education.
Thank you and best wishes.
--;Robert Evans
MTC-00028101
From: NATHAN S MORRIS
To: Microsoft ATR
Date: 1/28/02 1:30pm
Subject: Microsoft Settlement
--;--;major penalties,no breakup--;--;NATHAN
MTC-00028102
From:
ben--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Microsoft is the engine of our economy train. Leave them along
and let them pull all of us forward.
MTC-00028103
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I donot feel that Microsoft should be allowed to proceed with
its products uninhibited by government or less successful
competitors
MTC-00028104
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I THINK THAT THEIR SHOULD BE NO MORE LITIGATION IN THE MICROSOFT
CASE. THE STATES SHOULD APPROVE THE SETTLEMENT.
MTC-00028105
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I endorse the settlement between Microsoft and US Government. I
am hoping for a Final Judgment.
MTC-00028106
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please consider ending the legal activity against Microsoft.
Microsoft has offered a very large settlement which should be
approved in the interest of allowing technology to advance.
Microsoft was never a monopoly (as is my garbage service & city
sewer/garbage service). It is unfortunate that the Clinton
Administration Justice Department originally started this
unsupportable suit. Thank you for listening.
MTC-00028107
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
This settlement is very fair. the only people that seem to be
complaining are microsofts' competitors and people that think
operating systems should be free and not be considered intellectual
property. This company is one of the great success stories of the
20th century. don't punish them further for this success. nobody
that I know complains about microsoft. they like their products and
find them easy to use. stop wasting all this money on this court
case. it's ridiculous.
MTC-00028108
From:
holly--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
While I disagreed with the government s antitrust case in the
first place I am pleased with the settlement insofar as it brings
the case to a close.
MTC-00028109
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
This entire Microsoft case has done more harm than good. Not
only has it wasted time and money but it has also been run at the
expense of pursuing various attacks by the Al-Qaeda organization.
MTC-00028110
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Windows XP came installed when I purchased my new computer. I'm
very disappointed with this highly praised Operating system. I can't
run my printer as I did with Windows 95 and it can't be fixed.
[[Page 28193]]
Microsoft should be made to remedy my situation.
MTC-00028111
From: will
To: Microsoft ATR
Date: 1/28/02 1:33pm
Subject: in regards to the microsoft anti-trust case
I used to be a consultant on Microsoft products right up until
about 4 years ago when I switched from consulting on systems
integration and started doing development work on a variety of other
platforms. I've known a lot of the folks at Microsoft over the years
and been a part of various Microsoft initiatives. As the years have
passed, I've become increasingly concerned with the level of quality
of Microsoft products and the direct effects they have on our world.
Not just consumers, or businesses, or governments, or the Internet,
but --;everything--;. The reason they have this affect on
--;everything--; is because they outsell other operating
system providers in a variety of business spaces. This ability they
have comes less from radical product superiority, but mostly from
their absolutely amazing business and marketing skills. I think
these business and marketing moves that Microsoft has made have
become increasingly Machiovellian--;the ends absolutely
justifies the means in the Microsoft juggernaut's mind (sorry for
the personification here). Reading through the findings and my
experiences in the Microsoft world and my friends'' lives, I
believed as the courts did that Microsoft is guilty of abusing their
monopoly.
Reading through the settlement recommendation, I'm appalled. I
think it does nothing to curb Microsoft's business and marketing
juggernaut which clearly lacks moral sense. I think it actually
furthers Microsoft's monopoly in the future without instilling any
moral and ethical guidelines.
I am absolutely against this settlement and I think it's
ridiculous that it's even being considered by anyone. It's not an
issues of good vs. evil, it's an issue of fixing the future so that
consumers aren't continually hurt by the continual immoral practices
of a behemoth company.
Thank you for your time,
/will
whatever it is, you can find it at http://www.bluesock.org/
willg/ except Will--;you can only see him in real life.
MTC-00028112
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I strongly support the settlement reached between Microsoft and
the Federal Government. The few state attorneys general who have not
signed on appear to be more interested in the political benefits of
opposing big business than in the public welfare. Government must
not penalize businesses merely because they are successful or large.
Innovation should not be discouraged by reducing competitiveness.
Competition is essential to developing the technology that our
country s economy depends on.
The settlement protects the public while ensuring competition
and innovation. The key features include an onsite committee to
ensure Microsoft s compliance the ability for consumers to delete
Microsoft programs from their operating systems the ability for
computer manufacturers to add programs to PC s with Windows and
forcing Microsoft to disclose the technical information necessary to
competitors so their software will run smoothly on Windows.
Sincerely
Eric W. Spak
MTC-00028113
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I think this is a fair and just settlement. Don t think any
changes should be made
MTC-00028114
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I believe the settlement as it stands now between the government
and Microsoft is fair and just. I believe the government has been
exemplary in it s conduct during the Microsoft case. The nine
remaining states should end their suits in this case and join the
Federal government in ending this long running case.
They are only wasting the tax payers money. For AOL to bring it
s suit against Microsoft on behalf of Netscape is pure folly on AOL
s part. The case has pretty much been decided on. They are only try
to delay it. For what purpose? Who knows. In my personal opinion I
don t believe Microsoft ever did anything wrong. But since it has
already been ruled against that s OK. We should move on from there.
End this case now before it does more harm than good.
Thank you for listening.
MTC-00028115
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
This case has gone on long enough and needs to be settled to get
the economy going. Nine states settled and the nine states holding
out should settle also. Netscape is a sore loser because people like
Internet Explorer better. That's competition on which this country
thrives. I have both in my computer but like Internet Explorer
better. AOL also has no business bringing a new suit against
Microsoft. It should be thrown out. I don't like AOL either. If
anyone tries to monopolize the internet it s AOL.
MTC-00028116
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Have you people ever read The Law by Frederic Bastiat? It is not
the legitimate role of government to manipulate the free market.
MTC-00028117
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Quick and fast settlement is beneficial to the economy as a
whole. The current settlement has already posed good restriction on
Microsoft on anti-trust related issues.
MTC-00028118
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
The governments' actions are threatening the safety liberty and
prosperity of the United States and its citizens.
MTC-00028119
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Accept the Settlement The proposed settlement already helps the
rivals of Microsoft by placing significant restrictions on
Microsoft. Hopefully no more time or money will be spent on
unnecessary objections by a few state governments that are holding
out.
MTC-00028120
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
In today's highly competitive environment most of Microsoft's
practices should not be judged within a legal framework but rather
should be seen as aggressive marketing practices. Such extreme cases
confuse people and rather than spending time effort and resources to
find ways to become more competitive the rely upon a legal system to
get them out of the hook. In my opinion the end result of such
extreme legal actions is that the consumer does not enjoy the best
possible products at the best possible price that come out of
competition in so many other markets.
MTC-00028121
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Microsoft where would we be with out you? You are the brain
behind todays technologies and we are for you
MTC-00028122
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I wish that I had the time to write a response that would
reflect my complete disgust on the attack of Microsoft by our
government's abusive use of power and influence. Simply I want this
government's action against Microsoft only for the benefit of
Microsoft's unsuccessful competitors to come to an end.
We need to get on with the economy and tremendous prosperity
that we enjoyed
[[Page 28194]]
before this government's overzealous bureaucrats and these cry baby
spoiled brats from Sun Microystems Oracle and Netscape helped take
this country into recession. Accept the settlement and get on with
life!!! How stupid! Take the most productive and successful company
in the world and try to destroy it! What a bunch of idiots!! I said
this as nice as I could with this much anger!!! You should hear the
way I really feel about it!!
MTC-00028123
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please put a stop to the economically draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop
the fact is this case against Microsoft is little more than welfare
for Netscape and other Microsoft competitors with not a nickel going
to those supposedly harmed by Microsoft the computer user. I do not
feel I have been harmed. This is just another method for states to
get free money and a terrible precedent for the future not only in
terms of computer technology but all sorts of innovations in the
most dynamic industry the world has ever seen. Please put a stop to
this travesty of justice now.
Thank you
MTC-00028124
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I fully support the current settlement and believe that further
litigations against Microsoft should be stopped. It is obvious that
Microsoft's competitors Oracle and Sun System are doing everything
they can to ruin the company. Our government should not be
influenced by this. Enough already. A fair settlement was achieved.
Federal government should discourage the remaining states from
further litigation. Microsoft one of the most successful American
companies should be allowed to continue its efforts in innovation.
Our fragile economy needs this and consumers are benefiting from
innovation.
MTC-00028125
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
It is time for the government to get out of the free enterprise
systems way! Microsoft has made life easier for everyone. I could
have any program that I chose. Noone has forced me to use Microsoft
Products. I use them because they work and are economical. What's
wrong with that? Since when did making money become against the law?
They give more to charity than the U.S. Government.
Give me a break and do something worth while. We have become a
nation of wannabes rather than a nation of doers. The justice system
needs to mind its own business and it has plenty to mind! What if
Microsoft said enough. You can have it and we quit and take our ball
to the house. Would software still be as economical and work? I
think not!
MTC-00028126
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please move forth on the Microsoft settlement. This case has
slowed down the evolution of technology.
MTC-00028127
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
In my opinion the suit against Microsoft should never have been
filed by the DOJ to begin with. It is time to stop it and the
settlement should be approved and the Court should force all states
and persons to abide by it. Let's stop allowing the incapable ones
to enter a field about which they are not sufficiently informed and
capable by screaming false accusations. End user consumers have been
greatly harmed by the suit already and in fact will continue to be
harmed by the suit and the limitations and regulations imposed by
the settlement. However better that we at least stop further blood-
letting and force the competitors to find their place in the market
on the merit of their products and not on the basis of politics.
MTC-00028128
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Keep the government out of Microsoft's business! This is as
stupid as saying Henry Ford had an unfair advantage in selling cars.
Microsoft built the better mouse trap and is being punished for it
THIS IS UNAMERICAN
MTC-00028129
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
Bogus charge the company has done more for the consumer then
could be expected of any company
MTC-00028130
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I do not understand the whole problem or lack of. I have had
three different computers in the past five years and Netscape and
Compuserve were all loaded in them I presently use both Netscape and
Microsoft Explorer. LEAVE MICROSOFT ALONE if it was not for them we
would not have the ease of use that we enjoy today.
MTC-00028131
From:
tom--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
Further action against Microsoft is unwarranted and will stifle
the development of technology that is critical to America
maintaining its leadership role in computer applications.
MTC-00028132
From: Jim AA Wright
To: Microsoft ATR
Date: 1/28/02 1:31pm
Subject: Microsoft Settlement
I think it is time to settle this Microsoft thing and quit
wasting Government money on it. I don't think anyone knows how many
businesses have been started to carry on and supplement Microsoft. I
think it is time they were allowed to continue without the threat of
a law suit hanging over them. They have caused no real harm to
anyone, but there are those that would like to line there pockets at
Microsofts expense.
Jim A Wright
[email protected]
MTC-00028133
From:
[email protected]@
inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
I believe it is in the best interest of America to accept the
settlement and move on. The settlement despite it's prejudice toward
Microsoft will help our economy. I don't think the competitors have
suffered from Microsoft exclusion.I think they don't have the
expertise to compete. If there was a system that was as user
friendly as windows it would have been just as successful. At any
rate Microsoft is willing to share their technology with competitors
so accept it and move forward.
Sincerely
Gwen Fisk
Owner of Full House Exterminators
MTC-00028134
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I believe this settlement is fair to everyone and allows for
continued technology growth.
MTC-00028135
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
let consumers determine the demand and thus the supply for
products. the govt should have a hands off policy in the free market
place.
MTC-00028136
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:31pm
Subject: microsoft settlement
TO WHOM IT CONCERNS,
IT SEEMS TO ME THERE ARE MORE IMPORTANT THINGS TO BE DONE IN
THIS COUNTRY, BESIDES RIDE MICROSOFT WITH EVERY WHIM OF THE PEOPLE
WHO WANT TO SUE. I THINK THERE SHOULD BE A SETTLEMENT AND GET ON
WITH WHAT NEEDS TO BE DONE IN THIS COUNTRY. THERE ARE PLENTY OF
CROOKS OUT THERE TO GET IF THAT IS
[[Page 28195]]
WHAT YOU WANT.I THINK YOU ARE BARKING UP THE WRONG TREE. GO FIND THE
REAL CROOKS
SINCERELY
HOPE GUZZO
MTC-00028137
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please allow the ruling on Microsoft to stand. We need strong
companies to flourish in our economy without undue government
interference. Free enterprise is one of the basic principles of
liberty and we need the jobs and technology companies like Microsoft
provide.
MTC-00028138
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
This is a terrible miscarriage of justice. Microsoft should not
be held to this ridicule. They are the creature of this soft ware
and should be governed by the consumers and not by the government.
Microsoft and their operating system are vary big and yes their is a
reason for that. It's because they made a produce that was needed.
They were is the right place at the right time and created a demand
for their produce because people wanted it and it was a good
product. Now that they are successful they are being penalized for
it. Of course others are going to complain about it that's because
others are trying to get a piece of the action and get it any way
they can. The actions brought against Microsoft is also an action
against the free enterprise of the United States of America.
MTC-00028139
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I think Microsoft is doing a fine job and should be exonerated.
The competitors are envious and want the government to control the
competition in their favor. They can't win people complain if they
give their software away or price it too high. If there wasn't a
market for it nobody would buy it. The only ones who seem to have a
problem with them is their competitors. Leave them alone and let
them keep innovating.
MTC-00028140
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
The currently negotiated settlement is sufficient. Any further
action should be suspended.
MTC-00028141
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please! Please! Get OFF Microsoft's Back! Stop Your SILLY
castigation this productive Company!
MTC-00028142
From: Michele Stouffer
To: Microsoft ATR
Date: 1/28/02 1:31pm
Subject: Microsoft Settlement
I do not believe the settlement offered by the Bush
administration and other states is in the public interest. I believe
more needs to be done to curb Microsoft's monopoly and invigorate
competition and real innovation in the operating system and office
product software markets.
I am a technical training course developer in Silicon Valley,
and use Microsoft's products not because I believe that they are
superior, but because there is no real choice. They have become an
inferior defacto standard. One would think that with all Microsoft's
resources and the number of years their products have been around,
that the products would be robust and elegant. But the fact is, a
week doesn't go by that either Word or PowerPoint or even the
Windows operating system either freezes up or totally crashes. Over
ten years of using their products has added up to countless hours of
lost productivity.
I believe that consumers would greatly benefit if Microsoft were
forced to spend some of their resources on improving their products
(by having to compete) instead of protecting their monopoly.
Michele Stouffer
MTC-00028143
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Dear Antitrust Bureaucrats: First I regard DOJs intrusion into
Microsoft's business to be an American Travesty. Now that DOJ has
sucked millions of dollars out of the Microsoft pot who will be
next? Can't you folks at DOJ understand that you have NOT done
consumers a favor in that they [consumers] will ultimately pay for
your meddling due to increased costs to produce the Microsoft
products? Why can't you government (of by and for the people... yeah
right) types understand that simple concept?
Furthermore I DO like many products produced by Microsoft.
However if I want a choice of operating systems there are others out
there and I DO use them. There are other browser products out there
such as Opera which I am using right now.... It is better than the
Microsoft browser so I use it. You folks at DOJ DID NOT DO ME ANY
FAVORS by getting into Microsoft's business and sucking out millions
of dollars THE COST OF WHICH MUST ULTIMATELY BE BORNE BY ME THE
CONSUMER. You see... not everyone in America is dumb to what is
going on here....
Sincerely
Jeff Bayer
BayerMedia
MTC-00028144
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
I request that the settlement that was agreed upon be allowed to
be implemented so we can get on with technology advancement.
MTC-00028145
From: Lee Liaw
To: Microsoft ATR
Date: 1/28/02 1:31pm
Subject: Microsoft Settlement
Thank you for letting us ordinary citizens comment on this
lawsuit. I am confused by many of the charges that have been made in
this lawsuit. However, the one issue that seems to get a lot of
attention, and affects the people, is the charge that Microsoft has
hurt the end-user. As an ordinary citizen, I can categorically state
that I have not been hurt one bit by Microsoft. My family uses their
software products, along with a bunch of other companies''
software products, and I have not experienced any problems. In fact,
I feel that the other companies are benefiting because I am buying
their products. That is what is confusing. I don't see the ordinary
citizen being hurt. In fact, I see them as benefiting from all this
technology.
When I read the allegations, I am deeply bothered at the charges
and statements made by the attorney generals of the 18 States. Then
I read what Microsoft's competitor have to say, and that makes me
outraged, because it clearly shows that these companies are bribing
the States to do their dirty work. The way I interpret it, is that
they are not very astute business people, and they need some help,
so they pay-off their Congressmen to do their dirty work for them.
This is what really outrages me.
Furthermore, I read the remaining 9 States are extending this
lawsuit. In my opinion it sounds like greed! The companies that are
in those 9 States are again bribing their attorney generals. My
analysis, as an ordinary citizen, is that these companies are not
very astute business people. If they can't make a good product that
people will buy, then they don't deserve to be in business. If they
are not astute business people, I don't want them representing my
country when the go overseas and sell to foreign countries. I don't
feel like a proud American when I read that these companies are
bribing their Congressmen to do their dirty work. It reminds of the
government corruption that I read about in other countries. I
certainly hope that our government does not stoop that low that we
allow our businessmen to corrupt us through bribery and collusion.
I may only be a common ordinary citizen with not much influence
as these large businesses, but I wish to exercise my Constitutional
right to freedom of expression and certainly hope that you will
consider my comments.
Thank you.
Lee Liaw
MTC-00028147
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Please bring the lengthy anti-trust case to an end. It would be
in the best interest of the technology industry consumers and the
economy. There was a settlement on Nov.3 2001 with the federal
government an a
[[Page 28196]]
number of state attorney generals please endorse this settlement.
Thank-you.
Sincerely
Pam & Phil Mehling
MTC-00028148
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
Do leave Microsoft alone they are the leaders in technology in
the world. Without Microsofts ideas we would loose our edge.
MTC-00028150
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
I believe the entire trial has been a mistake for America and
the economy. I use windows-based computers my mother and sister use
apples and my son uses Linux. MS is being punished for providing
consumers with an easy to use and affordable operating system.
Having said that I believe the settlement reached actually goes
beyond the finding of the Court of Appeals. So I will be able to
support them exactly as written.
MTC-00028151
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:22pm
Subject: Microsoft Settlement
PLEASE END THE ANTI-TRUST CASE AGAINST MICROSOFT.
THANK-YOU
H&K MEHLING
MTC-00028152
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
The Microsoft operating systems starting from Windows 98 to the
current XP have filters & command lines written within that
causes non Microsoft software programs to stall or crash. The error
message in the Close Program box is usually Not Responding. No
matter how much Ram is being used or what the processor speed is
this message appears. My company builds computer systems installs
hardware & software and troubleshoots many PC problems. It has
been my experience that the bulk of my troubleshooting calls have
been non Microsoft software problems. Usually on the new systems
that someone has purchased will have Windows 98 NT ME 2000 & XP
as the operating system. Common problems are the driver files
located in these operating systems. To fix the problem a mass
majority of the time I have to uninstall either the hardware or
software and then reinstall it with the disk provided by the
manufacturer. Ninety-nine percent of the time the first
uninstallation/reinstallation works.
There have been times when I had to do this two or three times
and keep rebooting the computer to get it to accept the files from
the manufacturer instead of the files provided by the Windows
operating system. I currently have Windows 98-Second Edition on my
home PC and find that system actually helps troubleshoot problems
with other Microsoft OSs. Windows 3.1 and 95 didn't carry the same
command lines as the newer OSs thus they had less failures. No
company should be allowed to dominate a market such as Microsoft.
This is America and it should be an equal opportunity for all
computer manufacturers. After all computers in this country run a
mass majority of business both in the work place and now more so in
the private homes of Americans. This should give all companies the
opportunity to develop hardware & software that is compatible.
For that reason alone companies like Gateway Compaq Packard-Bell
& Apple/MacIntosh aren't very successful in the computer
MTC-00028153
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
I think this case should end immediately. All citizens have
benefitted from Microsoft products. Bill Gates is brilliant and
surrounds himself with brilliant people and has done nothing wrong.
We only wish we were as smart. To force Microsoft to house a Tech
Committee to enforce his compliance with the settlement and then
demand he fund it is insane. In America we are suppose to be able to
succeed without government punishment for doing well. The government
should never have been involved in the first place. CEOs of
competitors have thrown money in the right place to bring about this
suit in the first place. That is obvious to everyone. To even
entertain a forced breakup of Microsoft just simply isn't the
American way. Someone somewhere forgot that theory. Maybe the
competitors should do better work instead of trying to bring down
those that are smarter than them. This is just the opinion of a
simple public high school teacher who only wishes to have been so
brilliant. Leave Microsoft alone.
MTC-00028154
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
I wish the government and states would just drop this nonsense
and quit trying to hurt the free enterprise system and economy also
control the freedom of companies to succeed and make better products
in very competitive market. If they think for a minuet that the
whole government finding was fair and just I think NOT! AOL and
other companies point the accusing finger at Microsoft for being a
monopoly its just a ploy to take a successful company down so they
can eat up the whole market. Microsoft has never overcharged the
consumer for innovative products. This kind of legal dog and pony
show put on by the states and federal government wasting the tax
payers money has got to stop.
MTC-00028155
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
I AGREE WITH THE SETTLEMENT
MTC-00028156
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
As a long-time Microsoft user I find the company's settlement
offer to be eminently fair and straightforward. Not only does it
provide much-needed support to Microsoft users the world over it
answers and pretty much solves the complaints that Microsoft
competitors have been talking about since the beginning of this
whole controversy. For the good of all it's time to move forward.
Please accept this settlement offer.
MTC-00028157
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
I have been a fan of Microsoft and Bill Gates through all of
this mess. We as Americans should be grateful for companies and men
like Mr. Gates. If Microsoft hadn't developed the technology some
other company in another nation would have. All these companies
crying and complaining about Microsoft where were they in the early
days? Thats right let someone else do the research and development
and then cry like a baby that you got screwed. In my opinion
Microsoft didn't do anything that someone else could have done if
they had been willing to take the Bull By The Horns spend some money
and take a risk. I have no ill feelings for Microsoft whatsoever and
feel THEY if anyone has been treated unfairly and unjust.
MTC-00028158
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft Settlement
Every section of this settlement which addresses practices which
Microsoft has traditionally used to eliminate the possibility of
competition seems to be dependent on definitions of terms such as
Non-Microsoft Middleware Product and Windows Operating System
Product which are still vague enough to be disputable when Microsoft
next feels threatened. Enforcement is by a Technical Committee whose
paychecks come from Microsoft who are employed in Microsoft arranged
offices with Microsoft provided resources on Microsoft's corporate
campus in Redmond Washington.
Even if these controls turn out to be sufficient to stop
Microsoft's enforcement of it's desktop monopoly we'll be back in
this discussion 5 years from now when they expire. This settlement
insures that no other company can use the anti-competitive tactics
that Microsoft has taught the industry the hard way against
Microsoft themselves. To me this seems unfair as these other
companies have already been affected by Microsofts past abuses even
though most of these other companies have not proven as
untrustworthy in this regard as Microsoft. This settlement does not
actually have any effect whatsoever on Microsoft's existing
monopoly. In my opinion this settlement is an insult to the DOJ and
to computer users in general that we could so easily be fooled
[[Page 28197]]
again. Microsoft will continue to buy all competition which can be
bought and to find creative ways to kill all competition that they
can't buy. Thank you for listening. :-)
MTC-00028159
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft'settlement
I believe this settlement is not fair. Because I believe this
suit should never have been brought in the first place. I have seen
firsthand the problems deregulation brought in the telephone
industry and I believe it is wrong and rather unAmerican to penalize
companys for doing well such as microsoft is being penalized.
The message this sends to the citizens is that if you form a
company and do very well the government will step in and force you
to give up some of your assets and redistribute your wealth among
some of the less wealthy companys. This is the tenents of Carl Marx.
We all know what that is called. This has no place in a democracy.
This message says Only do moderately well with your company if you
make too much money we will step in and redistribute your wealth to
others that are less wealthy. Our country needs to take another look
at our undemocratic monopoly laws.
MTC-00028160
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft'settlement
Is there a limit to the potential of capitalism? Is there a cap
on the American success story? If Microsoft makes a product that is
only compatible with other Microsoft products then so be it. Anyone
that wishes to compete against Microsoft' should be able to do so
without restriction. That is what free enterprise is all about. As
long as the products that Microsoft creates is not a health hazard
etc. they should be able to do as they please. If the public gets
fed up they have the option to choose another brand. Don't get me
wrong I don't like the idea of a giant corporation taking advantage
of their position in the market to wield their unlimited capital and
public appeal to take advantage of the consumer. However lets not
put an end to freedom of enterprise and let's not put a cap on the
potential of success in America.
MTC-00028161
From: T.J. Mather
To: Microsoft ATR
Date: 1/28/02 2:09pm
Subject: Microsoft' settlement
I am opposed to the proposed Microsoft'settlement. I agree with
the problems identified in Dan Kegel's analysis on the Web at http:/
/www.kegel.com/remedy/remedy2.html
Sincerely,
Thomas J Mather
155 West 15th Street, Apt #4C
New York, NY 10011
MTC-00028162
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
The parties opposed to the settlement are beyond children having
temper tantrums they are morally obscene. The settlement is more
than generous and cessation of the conflict will benefit America at
large individual citizens our economy and the well-being of people
all around the globe. If I were an enemy of the United States I
would be cheering the efforts of the opposition as there can be no
greater harm done to our nation than to indulge in continuous
unremitting illogical energy draining costly distractions from the
productive and creative efforts of paradigm-shifting companies like
Microsoft. The motives of those opposing the settlement are
transparent they are clearly nothing more than cheap gold diggers.
MTC-00028163
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
I agree with this settlement only to the extent that it ends a
long and expensive litigation process. The entire suite was
economically and Constitutionally unsound but it has now grown to
the point that government money would be better spent on other
perhaps less intrusive projects. The fact that the government is
seeking to exert such obscene control over the high-tech industry is
frightening but the prospect of millions of taxpayer dollars being
used to subsidize a longer trial is even more frightening.
MTC-00028164
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
gentlemen: it is my belief that an equitable solution in the
microsoft law suit has been reached and should be allowed to stand
as is. further it does not appear in anyone's best interest to
squander court time and resources on expensive lawyers.
sincerely
c.l.bass
MTC-00028165
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
I'm not an expert in the technology field. I've followed the
news reports involving Microsoft. I think that this is a case of
envy. Microsoft was built by hardwork and genius. Competitors have
built off of the work of Microsoft. I think the settlement is unfair
to Microsoft. They are being penalized for being innovators. I only
wish I had their talent genius & understanding of computers
& technology.
MTC-00028166
From:
[email protected]@
inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
We are a global economy. We should allow Microsoft a leader in
the worlds communication field and a strong American company to
continue to operate without government interference. Let the cry
babies that couldn't compete take their lumps and address their own
business failures. Microsofts success will only enhance third world
countries not only by their business endeavors but also in the area
of its philanthropy.
MTC-00028167
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
Although Microsoft Microsoft' stockholders and the American
consumer are losers including the public school system. With
attorneys politicians and special interest groups reaping personal
gain at the expense of the consumer Let the settlement stand before
the rest of the world assumes tech leader ship.
MTC-00028168
From: manuelwc@manuel-
associates.net@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
I strongly endorse the settlement. It is balanced in its
approach and it achieves as much fairness as is possible given the
complexity of the issues and variety of interests demanding to be
served.
MTC-00028169
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
As a user of Microsoft products over the years I am very
disappointed in DOJs actions against Microsoft and the $35 Million
it spent to cripple the IT industry. Although I do not agree with
some provisions of the settlement I find the fact of the settlement
and resulting closure to be better for the economy than further
harassment of MS and it's chilling effect on entrepreneurial spirit.
Let's get on with the task of building a better world through
information technology. DOJ owes Microsoft an apology that will
never be issued but let's not drag them any further from doing what
they do best....creating the best software/systems in the world.
MTC-00028170
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
the government needs to stay out of it all together. if
microsoft wants to give the consumer something free this is their
right.
MTC-00028171
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:23pm
Subject: Microsoft' settlement
I have reviewed the JD/Microsoft' settlement and I am happy to
see that both sides in this action have finally come to a
satisfactory agreement. The forces of open competition are essential
to build new technology. Also as technology advances the integration
issues have to bring us all to a systems solution that is open
standards based and therefore competitive in cost. Challenges
[[Page 28198]]
to this agreement by competitors are obviously being done for one
reason and that is to erode the Microsoft market position. These
have to be evaluated for what they are and nothing more!
MTC-00028172
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Henry Ford changed the world as far as automobiles are
concerned. Bill Gates changed the world as far as computers are
concerned. I think he should receive a Hero medal.
MTC-00028173
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
It would be beneficial to allow the settlement that forty one
states agreed to accept be finalized so that the future of Microsoft
isn t clouded by litigation for years to come both here and abroad.
MTC-00028174
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I believe that the settlement agreed to by Microsoft and the
Justice Dept. is quite fair and equitable to all parties involved. I
do not believe there is anything to be ained by further litigation
in fact it will do great harm to the American public.
MTC-00028175
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
The Anti Trust case over Microsoft should have never even
started. It is apparent the only reason why it started was because
NetScape and AOL paid off people to bring the case because they knew
they couldn t bet Microsoft in the marketplace. Who would really
want to have to pay for an Internet Browser when they get one for
free? This new case AOL has brought is because they are fuming that
MSN is getting bigger and bigger pieces of the market. It is called
capitalism live with it and stop trying to bring your rival down
with cheap tricks or file for chapter 11 and close down. In
capitalism whoever is selling the better product for a cheaper price
wins and AOL and Netscape needs to realize that and stop complaining
to the government. What President Bush is doing by trying to keep
out of the private business sector is a smart descision. Business
don t need more government control and this how recession we are
going through shows what happens when the government does try to
control.
MTC-00028176
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
The government should have never entered in the suit. Microsoft
is a great company. It employs many people and it provides great
products. No one is tied to the company with a cord. If someone
doesn t want to buy the product he/she doesn t have to buy it. The
government should stay out of these things and not punish success.
If the government officials are jealous of Bill Gates success they
should learn to live with it! There is no crime and was no crime!
MTC-00028177
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
As an end-user comsumer I feel that this Final Judgement is as
good as likely to be. I recommend acceptance of this judgement.
MTC-00028178
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I am very much in favor of Microsoft. This is a country of free
enterprise. No more tax money on this case.
MTC-00028179
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Although I do not always agree with the way Microsoft does
business I also have to admit that they have done more than Sun
Netscape AOL and others to advance the wide spread use of PCs. As
far as using software from a company other than Microsoft I find it
very easy to install the software. I have little or no problems with
the installation or use of non-Microsoft software. I know that
Netscape AOL and Sun seem to think that Microsoft has harmed their
businesses but I have used Netscape in the past and let me say that
Netscape hurt themselves. As far as Sun AOL Apple and others are
concerned if they were so concerned about the general population I
did not sense it in their products or their business practices.
In closing I will restate that I do not always agree with
Microsoft but if not for them and the IBM compatable PC I would not
be using a PC today. Before we go to far down the road of penalties
against Microsoft we need to explore the true intent of the other
companies. If their products and services are good then people will
buy them if not--;why force their products and services on us.
MTC-00028180
From: lu-
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
This law suit was none other than to intimidate a company that
was making too much money and certain persons being envious. Also
because they didn t give large political contributions had to be
punished. Rediculous to have even instituted the law suit against
Microsoft. People were and are able to purchase other products.
Microsoft makes things easier. I am strickly against the suit.
Clinton should be the one on trial these days not Microsoft.
MTC-00028181
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
gentlepersons
After careful and through review of the settlement details I
wish to express my agreement that it represents a fair and equtible
resolution of most of the issues involved. The intense global
technological competition is enough for our U.S. companies to have
to deal without further selfinflicting judicial wounds that can only
hamper our countries continued leadership in these areas.
yours truly
Mr. J. Podesta
MTC-00028183
From:
[email protected]@
inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
If our Government spent as much $ and time going after Osama Bin
Laden rather then Bill Gates we would not be mourning our loved
ones.
MTC-00028184
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I am appalled that AOL is trying to sue Microsoft after the
settlement that has been reached which was too tough on Microsoft in
my opinion. Where would the millions on AOL customers have come from
without Microsoft??? We all owe a debt of gratitude to them rather
than envy at a job well done that benefits us all AOL in particular!
Please stop this injustice at once.
MTC-00028185
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
We've already wasted hundreds of millions of dollars of
taxpayers money -the courts have ruled & the settlement was
accepted by the justice department. Let s get on with the more
important things in our life like the national and homeland
security.
MTC-00028186
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
the cost of this case is too high. it has stopped technology
advance and should be settled now
MTC-00028187
From:[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Settle this suit. Government should not have filed in the first
place. Free markets are the best regulators and protectors of
consumers!
[[Page 28199]]
MTC-00028188
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
settlement is better than nothing I believe you should settle
this as quick as possible ... I am not in favor of the Microsoft
suit nor the expenditures of time money and talent...look at the
experience with GM IBM etc. Microsoft will have a tough world in
this changing environment and you folks are expressing its early
demise raising our cost(s) and realy not benefiting anyone! Fine the
hell out of them for their sophmoric tactics and get on with
business.
MTC-00028189
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Please don't allow onerous regulation and endless lawsuits to
gum up private enterprise and customer choice. Thank you.
MTC-00028190
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I think that we need to fullfill the settlement agreement and
move on.
MTC-00028191
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I feel that the microsoft settlement reached on November 3 2001
is fair and reasonable and no further legal action needs be taken.
MTC-00028192
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
The argument is clear. Was the consumer hurt by Microsoft
bundling the browser with the operating system? The answer is no.
The Netscape argument is it could not compete because the consumer
did not have a choice. Netscapes claim is Microsoft circumvented the
consumers decision to choose. Software is ubiquitous in that anyone
can design develop and sell it. Microsoft did not prevent Netscape
from designing developing and selling its browser. Netscape gave up
trying to make a better browser and at that point the consumer did
choose they choose to use Microsofts browser. The fact is Netscapes
success depended on Microsoft selling more copies of Windows and
therefore Netscape could have sold more copies of its browser.
MTC-00028193
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Don't let Microsoft's competitors use the court system to
manipulate the marketplace by pressuring the court to continue this
case. The settlement proposed to date is fare and just.
MTC-00028194
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I think we should leave Microsoft Corporation alone. Hooray to
Bill Gates he is a very successful man.
My opinion is the government should leave that company
alone...and let them get on with their business.
MTC-00028195
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I support Microsoft in settling the law suit.
MTC-00028196
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Dear MS. Hesse: Please end the government s unjustified attack
on Microsoft. This embarrassment is a hold over from the previous
administration s abuse of the US Justice Dept. and the US justice
system. I believe that it is in the best interest of the country to
drop the case all together but in light of the unlikeliness of that
to occur the current settlement should be allowed to stand.
Sincerely
Steve Hunt
MTC-00028197
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Enough is enough! Let s get off this subject and go on to More
important things!! To persue this subject further would be a waste
of tax payers money. Too much has already been spent! Let the
settlement stand and let the free market system handle the future! I
and millions of other Americans have had enough of this matter!
MTC-00028198
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I concur with the action taken by the Federal Government. I do
not like sole source suppliers of any product. It appears to me the
Microsoft was well on its way to that end. If I could get other
software to work on my computer I would do so. Lee
MTC-00028199
From: deane-
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Again I say I remember when Windows first came out I have a copy
of that program. I am thankful for Microsoft other wise we would
still be using DOS. Microsoft owns Windows and should not have to
give away their codes to help other sofeware companys. They invented
it and should have all the rights to it. Just like Henry Ford and
Alexander G. Bell look at AT&T now since they were told to give
away the store. We all are worse off than we were years ago. Let
Microsoft do its thing and make it better without interference. I
back Microsoft all the way leave them alone they have a vision of
the future in using computers and let them proceed. Maybe the stock
market will go up again it went down when they got sued remember.
Thank you
D. Atwood
MTC-00028200
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Implement the agreed upon settlement without any further delays.
MTC-00028201
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I have been a computer user since the days when every computer
had its own operating system. Chaos ruled the field. Microsoft by
being in a fortunate position and taking advatage of that position
by making a superior product became the standard for personal
computers throughout the world. To punish them for being the best in
what they do would itself be a crime. Breaking them up would bring
chaos out of order at a time when the country s economy needs order.
To punish Microfsoft with more than a warning and some survaliance
paid for by Microsoft would not be justified. The fact that AOL owns
Netscape but uses Microsoft Internet Explorer as its Internet
Browser says volumes about the quality of Microsofts products. And
it isn t American to punish the succesful nor is it in the interest
of the United States to overpunish Microsoft. Sure they did some
wrong but they have done far more good.
Thank You
Michael F. Sypek
MTC-00028202
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I am against the proposed settlement. Microsoft should never
have been sued the Clinton Justice Dept. failed miserably and the
economic downturn began when Microsoft came under attack and has not
recovered since.
MTC-00028203
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I strongly support this settlement and an end to any further
litigation against Microsoft Corporation as it pertains to the
current charges. I have always felt that the charges were baseless
and that Microsoft did not take advantage of the market any more
than any other legal business would have been entitled to. I feel
they are being punished considerably for actions that would not have
affected the market or consumers. Please
[[Page 28200]]
finalize this settlement and stop bleeding taxpayers and
shareholders.
MTC-00028204
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
I SUPPORT THE SETTLEMENT REACHED BY THE GOVERNMENT AND
MICROSOFT. I DID NOT SUPPORT THE LITIGATION. LET S LET MICROSOFT GET
BACK TO DOING WHAT IT DOES BEST PROVIDING US WITH THE WORLDS BEST
COMPUTER PROGRAMS. STOP HARASSING THIS GREAT COMPANY.
SINCERELY
ALLEN M. METZGER
MTC-00028205
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:33pm
Subject: Microsoft Settlement.
Vanessa Castagliola
154 Aspinwall Street
Staten Island, NY 10307
January 26, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I have taken this opportunity to write and express my opinion of
the settlement that has been reached in the Microsoft antitrust
case. I believe that we need to concentrate on issues of greater
importance . I am pleased that a settlement has finally been reached
in this case and that Microsoft will be able to continue doing
business as a whole entity. It is apparent to me that the people
pursuing this litigation are not looking for a good judgment in this
case but rather the perpetuation of their own personal agendas. When
government becomes involved in business, socialism becomes the rule
of the day. I feel that this case has been fueled by jealousy and
that until we reach a conclusion to this litigation free enterprise
is stymied. The terms of the settlement are fair: Microsoft has
agreed to design all future versions of Windows to be compatible
with the products of its competitors, and they will also cease any
behavior that may be considered retaliatory. Please support this
settlement. I trust that you will do all that is within your power
to protect American businesses.
Sincerely,
Vanessa I. Castagliola, Leonard D. Castagliola Jr.
MTC-00028206
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
While I think that this settlement goes too far in restricting
Microsoft and that this whole anti-trust case shouldn't have even
been brought in the first place I'd really like to see this case end
already.
So I am in favor of this settlement agreement.
MTC-00028207
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:24pm
Subject: Microsoft Settlement
Leave Microsoft alone. Let the free marketplace determine what
is good for the free world. Get off their back!
MTC-00028208
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I agree with the proposed settlement. Let Microsoft continue to
operate and excel at what it does well. If you want to go after a
dangerous monopoly may I suggest Walmart. They have put more Mom and
Pop Stores out of business and destoyed the competition than any
other corporation in America.
MTC-00028209
From: TERRY C ANDERSON
To: Microsoft ATR
Date: 1/28/02 1:33pm
Subject: Microsoft Settlement
The following comments are submitted for the Court's
consideration in the Microsoft case before it. Based on my recent
experience in the transfer of my Internet service from Qwest to MSN,
I am very disturbed about increasing Microsoft's influence and
hegemony in the provision of Internet services. The changeover of
services has not been managed well--;several errors caused
frustration, lost information, and took much time to execute. I was
led to believe that these difficulties occured because I was not
coming from Microsoft software but rather from Netscape. I have
spent hours talking to the technical assistance people to straighten
this out. Let me add that simply getting to a person (rather than
being routed through the branches of call answering systems) is a
feat!
While I was not required to switch to MSN, I was given no
information on ways I could switch to another server. Nor could I
locate such information from Qwest or MSN. In other words, I felt
corraled (indeed compelled) to transfer to the Microsoft system,
MSN.
Now I'm subjected to advertisements and ``come ons''
whenever I log on. I strongly feel that it is a step backward for
the consumer to allow Microsoft more control over Internet services.
I am not a sophisticated computer user, but rather a person who
struggles with the technology and gets by through simple, direct
choices and customer-oriented service rather than glitz and
promises.
Please preserve my choice to obtain the best consumer services I
can find, not force me into a gargantuan system that is removed,
indifferent, and frequently inaccessible.
Thank you for your attention to my concerns.
Terry Anderson,
Portland, Oregon
MTC-00028210
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:30pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Ramon P & Marie L Ramirez
3295 N 153rd Dr
Goodyear, AZ 85338-;8530
MTC-00028211
From:
harry--;[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Lets please put politics and competitors interests aside and
settle this case. Stop tormenting the greatest success story of a
company in the history of the world. Let Microsoft Live! Leave
Microsoft Alone!
MTC-00028212
From: Aisen, Alex M.
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 1:33pm
Subject: Microsoft Settlement
Attached please find my comments, as an individual, on the proposed
Microsoft settlement.
Alex M. Aisen
<>
CC: Aisen, Alex M.
Comments on Microsoft Settlement
Alex M. Aisen
I am writing these comments as a consumer, professional, and
computer user. I am an academic physician, not an attorney, and
readily admit I do not know the formal rules for a submission such
as this. I believe the comments I am making are accurate, but much
of what I write is based on what I have read and remember, but have
not verified personally. I am writing as an individual only, and not
as a representative of my employer.
My position is that Microsoft is a company that has produced,
and continues to produce much excellent software. But they often
behave in ways which seriously harm both consumers and competitors,
and this behavior is likely to get substantially worse if the
proposed settlement is approved without substantial modifications.
Like many others, I believe the settlement is far too lenient. The
best way to encourage Microsoft to continue to produce top quality
software in a way which truly benefits consumers is to ensure that
there is competition, and to demonstrate to the company that if they
behave in an illegal manner, they will be
[[Page 28201]]
punished in a meaningful way. The proposed settlement does neither,
and should be substantially strengthened.
Here is my list of many of the harmful behaviors I believe
Microsoft to be guilty of. Some of these practices may be illegal;
most are likely within the law. But it is clear that the only reason
Microsoft has been able to get away with things such as I will
mention is that they are a monopoly; their customers, be they
corporate or individual, often have no practical choice but to play
by their rules, onerous as they often are. Anticompetitive
Activities. The activities outlined in the lawsuit several years ago
by Caldera Corporation over the computer operating system DR-DOS,
wherein Microsoft was alleged to have (and probably did) incorporate
well camouflaged code in a version of Windows released to software
developers that deliberately ``broke'' a competitor's
product (DR-DOS, which at the time competed with Microsoft's MS-DOS)
is an excellent example. This lawsuit was settled by Microsoft for a
substantial sum.
More recently, Microsoft has released a new version of Internet
Explorer, version 6, which, unlike previous versions, is
deliberately incompatible with plug-ins (third party accessory
software) written in the so-called Netscape style. This deliberate
incompatibility may be an attempt designed to further hurt their
competitor, Netscape
They have also removed support for up-to-date versions of the
Java Programming language from the latest version of Windows,
Windows XP. Java is a programming language developed by Sun
Microsystems, that has been widely adopted by many software
developers; it has the important virtue of being cross-platform.
That is, programs written in Java can usually run on computer
platforms other than Windows, for example the Macintosh, Unix, and
Linux. By removing full support that Microsoft provided in earlier
versions of Windows, Microsoft is hurting both developers who choose
to use Java, and consumers such as myself who bought Java based
software from these developers.
Though I certainly cannot prove it, as a long time users of many
Microsoft products, I think is possible or even likely that the
company has sometimes introduced or permitted ``glitches''
in their software that interfere with competing products, but not
with Microsoft's own. For example, in the past the Novell
Corporation has produced a file sharing system that competed with
Microsoft servers, allowing desktop PC's to store computer files and
share printers via centralized server computers. I have found that
there are numerous ``glitches'' when using Novell file
servers, that seem not to be present when using Microsoft file
servers. As a user, I have no real way of knowing whether these
glitches are simply bugs or weaknesses in Novell's software code, or
``deliberate'' incompatibilities hidden in the desktop
versions of Windows by Microsoft. And even if there is no overt
action by Microsoft, the fact that Windows software is proprietary,
and the source code generally secret, can make it hard for
competitors to produce products that interoperate with Windows.
More recently, I personally found that I could no longer use a
popular third party e-mail client, Eudora, with an enterprise
Microsoft Exchange e-mail server. Microsoft had included, as an
option, what I've read is a proprietary security feature called
``secure password authentication.'' The enterprise had
apparently started requiring that this protocol be supported by the
client software. Since Eudora could not use this, I was forced to
switch to a Microsoft program, Outlook Express. Now, Outlook
Express, like Internet Explorer is presently a free program. And, I
have insufficient technical information to determine what caused
this particular incompatibility. However, I cannot help but wonder
if this is part of a larger strategy to marginalize third party e-
mail clients like Eudora, and whether ot not Outlook Express will
remain free if and when the competition is gone.
Microsoft's treatment of potential competitors is important as
well. An excellent example of the sort of thing they are capable of
was recently described in the Wall Street Journal, concerning
Eastman Kodak. Film-based photography is now being replaced by
digital photography, and Kodak hoped to sell digital cameras and
software, which consumers would install on their Windows-based
computers. However, this was a market Microsoft wished to enter,
either directly or through partners. So Microsoft reportedly
designed new versions of Windows to steer consumers away from
Kodak's offering, and to those supported by Microsoft. Ultimately,
Microsoft backed down in this particular case. But one cannot help
but wonder if, given a less powerful adversary than Kodak, or the
absence of the ongoing legal activities, if the outcome might have
been different.
One additional example: the default home page on standard
installations of Internet Explorer (which is part of every copy of
Windows and hence part of most PC's sold) is the Microsoft Network.
Thus, every time most consumers starts Internet Explorer, the web
site they first see is Microsoft's own Microsoft Network. Now, it is
possible to change the default home page, but most users either will
not know how, or will not bother. So, this simple strategy puts
other vendors of web portals at an extraordinary disadvantage.
It has been widely reported that in pre-release versions of
Windows XP, Microsoft incorporated a feature called ``smart
tags'' which would allow them to direct users of the Internet
Explorer web browser visiting just about any third party web sites
to be ``directed'' at proprietary sites run by Microsoft
or its corporate partners. When word of this feature was reported in
the news (the Wall Street Journal), there was an outcry, and
Microsoft disabled it. However, there is no reason why they could
not activate it in the future, particularly if they feel their
dominant position in the market place, and the lack of effective
oversight, allows them to do so.
Onerous Licensing Terms: Terms in Microsoft software licenses
are often onerous, and it seems self-evident that the only reason
Microsoft gets away with including them is that they are a monopoly.
These onerous terms affect both consumers and businesses.
Two recently publicized examples from consumer software are as
follows. The EULA (end user license agreement) found in the download
of Microsoft's very popular Windows Media Player, states
``Digital Rights Management (Security). You agree that in order
to protect the integrity of content and software protected by
digital rights management (``Secure Content''), Microsoft
may provide security related updates to the OS Components that will
be automatically downloaded onto your computer. These security
related updates may disable your ability to copy and/or play Secure
Content and use other software on your computer. If we provide such
a security update, we will use reasonable efforts to post notices on
a web site explaining the update.''
In other words, Microsoft reserves the right to automatically
install software, without the users knowledge or permission, which
may disable ``r software'' on the user's computer.
Microsoft's newest operating system, Windows XP, incorporates an
automatic update feature, which could easily be used in this manner.
Though the putative purpose of disabling software is to enforce
Microsoft's interpretation of digital copyright enforcement, t it is
important to note that the language quoted above is very general;
further, even properly intentioned disabling of software could have
very adverse unintentional effects on an unsuspecting computer user,
as has already been reported in the trade press concerned the
automatic updates that occur with XP.
The second example on onerous licensing terms is this language,
which speaks for itself, which has been widely reported to be
present in the printed EULA included with shrink-wrapped boxes of
Microsoft's popular website authoring program, FrontPage: ``You
may not use the Software in connection with any site that disparages
Microsoft, MSN, MSNBC, Expedia, or their products or services,
infringe any intellectual property or other rights of these parties,
violate any state, federal or international law, or promote racism,
hatred or pornography.''
At the enterprise level, I have heard, and had limited
experience with myself, licensing clauses that do such things as
forbid companies from sharing performance test results performed on
Microsoft software. Thus, companies can, and sometimes are,
forbidden from sharing their experiences with Microsoft products
with their corporate colleagues. Microsoft is even widely reported
to have used such language to prevent the publication of comparative
reviews of their products.
Cost is an important factor as well. As Microsoft's monopoly in
both operating systems and office productivity software has become
entrenched, Microsoft uses its licensing terms to effectively raise
prices substantially. For example, years ago, when there were
competitors to Microsoft Office, the licensing terms on Office
allowed concurrent user licensing. This is no longer allowed. More
recently, other changes in its licensing terms require users to pay
substantially more, oftentimes several-fold more, for software
licenses. The important point is, I think, that Microsoft has
substantially increased the cost of its
[[Page 28202]]
software to enterprise consumers over the years, and they often do
this by changing the licensing terms, rather that
``overtly'' increasing the price. The effect is the
same--;the price goes up dramatically--;but the approach
used by Microsoft may allow them to masquerade this fact.
Finally, it is well known that Microsoft often include licensing
terms and pricing strategies that pressure companies into making
upgrades that they otherwise would not, thereby incurring
substantial expenses in training, dealing with incompatibilities
with other software, reduced efficiency from complex features that
may not be needed, etc. Again, this is a practice that cannot
practically be regulated; rather it is essential that there be
viable competition to Microsoft to keep their licensing practices
reasonable.
Privacy. It is clear that Microsoft often uses its monopoly
power in ways that seriously compromise privacy. The major reason
Microsoft is able to do this, is that they are an effective
monopoly. Several examples of such privacy invasion follow.
Several years ago, it was discovered by a third party that all
documents created by the then current version of Microsoft's
ubiquitous Office software included a unique identifier that allowed
the document to be tied to the system that first created it.
Further, it appeared that Microsoft had a database of computer
registrations that may have allowed this identifier to be tied to
the actual individual who registered or purchased the computer. In
other words, any letter created in Word could, with access to MS
corporate databases, be tied to the computer, and perhaps even the
individual who first wrote it. When this was publicized, Microsoft
removed the ``feature.'' But, had this occurred today,
with their position even more entrenched, they may not have felt
this necessary.
It is worth considering the privacy implications of Microsoft's
latest operating system XP. XP incorporates functions that have
serious privacy implications. Consider two features a user
encounters when first installing or using Windows XP, Product
Activation, and Passport. Product Activation is now required of the
latest consumer versions of Windows and Office, and requires that
users contact Microsoft after purchasing, but before they can use
the software (to be precise, they are given a short time of use
before product activation is necessary). During this contact, which
will usually take place over the Internet, information about the
users computer is transferred to Microsoft. The stated purpose of
Product Activation is as an antipiracy measure, but the privacy
implications are serious. Users have no choice but to send Microsoft
information about their computer configuration; the nature of the
information they send is not fully known, since the data sent is
encrypted, and since Product Activation is a somewhat mysterious and
proprietary process.
There are even more serious privacy implications in the MS
Passport system. Use of Passport is not theoretically required, as
is product activation, but in practical terms most individual users
will have to sign on to it. When a newly purchased computer is first
turned on, the user is asked multiple times to sign up for Passport.
Further, participation in Password is required to obtain technical
support from Microsoft; as everyone who has used modem software
knows, the need for technical support is inevitable. Passport is
designed as a system to electronic commerce, and requires that a
user provide significant personal information. One cannot help but
be concerned about the collection of such information by a
corporation with the ambitions and dominance of Microsoft. Again,
viable competition and a robust marketplace would be the best means
of ensuring that Product Activation and Passport not be used in ways
that violate reasonable user privacy.
Software Reliability: Software reliability, or, rather, the lack
thereof, has become a major economic drain in this country. As
computers become more ubiquitous, there are important safety
concerns as well. It is important to note that the financial
motivations for software vendors are not necessarily to produce a
reliable product. Companies often charge fees for providing
technical support, and indeed, this may be a substantial source of
revenue. This revenue stream is enhanced the more complex and
``buggy'' software is. Microsoft's consumer products used
to come with free technical support; as the company's dominance has
increased, they have discontinued this practice; they now generally
charge consumers for technical support after a limited number of
incidents that are ``free'' (or, rather, included in the
price of the software). Corporations are on the hook for far greater
fees, with large annual support contracts and per incident fees.
And, because Microsoft's software is proprietary, the company is
usually the only feasible source of technical support. The way to
ensure that commercially sold software is make as reliable as
possible is by competition in the marketplace.
(It is noteworthy that, because software is licensed and not
purchased, that the usual remedies in the civil courts for
``buggy'' products do not generally apply to software.
This may grow even more true if the software industry, lead by
Microsoft, is successful in persuading state legislatures to pass
UCITA (Uniform Computer Information Transactions Act), which many
feel will effectively eliminate any legal liability for bug ridden
software.)
In summary, Microsoft is a great company that has produced many
wonderful and useful products. However, there are many ways in which
Microsoft's business practices harm consumers, both individual and
corporate, as well as competitors. Were Microsoft not a monopoly,
the marketplace would be the best policeman. But the company is a
monopoly, and has been found by the court to become one through
illegal means. It has demonstrated, and continues to demonstrate, a
disdain for the legal system that should give us all pause. The
solution must be to impose financial penalties, restrictions on
conduct, and perhaps even structural changes on the firm that will
restore competition and bring things back in to balance. The
proposed settlement does not even come close to meeting this end; it
is essential for the long-term health of the American economy that
the court remedy this unfortunate situation.
MTC-00028213
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
As a consumer who appreciates the advances in the world of
technology, it is difficult to understand the necessity of the
Justices Department's suit against Microsoft. I do not even pretend
to understand how technology works. I do understand the marketplace
and as a consumer it is important to have access to products that
can improve communication make it easier to access the abundance of
knowledge in the world and to be able to enjoy a different venue of
entertainment. Consumers with little doubt indicated they were
comfortable with the Microsoft product. It appears the Justice
Department may have had too much time and money on hand and needed
to make a case against some profitable company. One of the beauties
of the US is the ability of the consumer to define the marketplace
by what works with ease affordibility and accessibility. It appears
the other companies needed to improve their product with more
creativity and ingenuity rather than turning to the Justice
Department. When the consumer is unhappy then the Justice Department
should intervene.
MTC-00028214
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I fully support the conditions of the Microsoft settlement.
MTC-00028215
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:34pm
Subject: Microsoft settlement
Laurel James
14023 NE 8th St.
Bellevue, WA 98007
Office # 425-;378-;8309
Attorney General John Ashcroft
950 Pennsylvania Avenue NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing this letter today to voice my support of the
settlement reached between the Justice Department and Microsoft. In
offering superior, well priced products Microsoft has made my life
and my business easier to operate, I have always been extremely
happy with their products.
I believe that the enactment of the settlement agreement will
spur innovation in the settlement process once more. The settlement
agreement contains many stipulations that will benefit the
technology industry. Microsoft has agreed under the terms of the
settlement to disclose information about the internal interfaces of
the Windows system. In addition to this, Microsoft has released
contractual restrictions on developers who would wish to enter into
multiple contracts.
This lawsuit is old and worn out, and should go away as soon as
possible for the
[[Page 28203]]
good of America and the economy, and for us, the happy Microsoft
consumers.
Sincerely,
Laurel James
MTC-00028216
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:33pm
Subject: Microsoft settlement
I am against the proposed settlement. I believe the only fair
solution is to split MS into 2 companies. One company would be
operating systems. The other would be applications. The operating
systems company would be required to publish all API's (application
programming interfaces) to everyone. This would also eliminate the
case of breaking another company's application with an upgrade
without breaking Microsoft products.
MTC-00028217
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Sirs
I am in support of Microsoft not only because I am a small
shareholder but I believe in capitalism. Microsoft has grown through
research and innovative thinking and has fielded some excellent
products which has made them the leaders in their markets. To go
against them because their competitors cry foul is an incrouchment
of the government into the free market system.
MTC-00028218
From: Carl Keil
To: Microsoft ATR
Date: 1/28/02 1:34pm
Subject: Please Punish Microsoft
Please uphold the spirit of the Microsoft verdict. They were
found guilty of breaking the law. Please, don't bend over for bill
gates. Punish Microsoft for breaking the law.
Thanks,
Carl Keil
Portland, OR
503-;231-;0894
MTC-00028219
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
get off microsofts back!!!
MTC-00028220
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I think it is wrong of the United States to do what they are
proposing to do to Microsoft. I think Microsoft is a upstanding
honest company. They are prosperous because of this and because they
have many intelligent people working there. Maybe the government
should help fund other companies that aren't as fortunate as
Microsoft to give them a chance to compete. I think their decision
could hurt them in the future. They may need Microsoft to help them,
then what will they do?
MTC-00028221
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I believe that the Nov 3rd settlement with Microsoft is fair.
Microsoft products have standardized the PC industry, enabled ease-
of-use, improved efficiency, created value, and reduced cost.
MTC-00028222
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
It is my opinion that Microsoft is responsible for uplifting
America to the Top in Technology. This Anti-Trust Prosecution by the
Clinton Adminisration is nothing less than Corruption for monetary
gain. Microsoft should receive support from us and not Prosecution.
This is a Common Sense company paid for with honest earned money. If
our Nations leaders were not corrupt at the conception of this
Lawsuit Common Sense says it would have never happened. Microsofts
donations to the people of this Nation are another thing. They have
given much to the good causes of our good people. If anyone is
guilty of anything it is the Clinton Administation being guilty of a
conflict of interest and Microsoft being a victim of its unethical
outcome. If the truth be known and when it is the people will side
with Microsoft. This is an opinion based on fact.
Thank You
Lester Hopper
6294 Southlake Drive
Hickory NC 28601
MTC-00028223
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Dear Sirs:
This is to express support for final acceptance of the
settlement between Microsoft the Department of Justice, and the nine
states. We urge you not to reject this settlement as any delays will
not serve the interests of the American people but serve to further
the causes of Microsoft's competitors who continue to choose to
compete in the courts instead of the marketplace. The American
people are insulted by claims that we have been harmed by Microsoft.
In truth, we have been harmed by their competitors who have stalled
progress in technology and in the economy. These suits must not be
allowed to continue. Before said suits our country experienced
unparalleled growth and prosperity. Our country regained its
dominance in technology due to the innovation and growth of
Microsoft and the many companies supporting their operating systems.
We respectfully urge you to help return our country towards
prosperity by rejecting further lawsuits and further delays in
acceptance of the anti-trust settlement.
Edward J. Barsano
CEO NeuralTick Inc.
MTC-00028224
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I feel it is time to drop the law suit against microsoft. This
country is based on competition and microsoft has a better product.
Why is this wrong? I am also tired with spending money on a law suit
that is over with. I demand that you drop this suit now!!!
MTC-00028225
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I have tried AOL & Netscape and don't like them as well as
Internet Explorer
MTC-00028226
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Enough already. The settlement is fair, stay with it.
MTC-00028227
From: alice-
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I believe that in the best interest of everyone the lengthy
antitrust case with Microsoft should be brought to an end. The
litigation should not continue.
MTC-00028228
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Based on the issues that I have read, the only people who will
gain from further harassment of Microsoft Co. will be the
competitors and attorneys. No further penalty should be placed
against MS.
MTC-00028229
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I can't state it strongly enough. The case against Microsoft was
a stupid waste of taxpayer money! The end result was millions of $$$
wasted. Because Microsoft was getting its foot in EVERY door and its
products were EVERYWHERE the end result of this total waste of money
is to FORCE Microsoft to be in even more places than it is now! By
forcing Microsoft to donate software to schools the court is MAKING
Microsoft do the very thing it got into trouble for doing! Just DROP
the whole thing and go away now before you waste any more of MY
money in another pointless chase after Microsoft.
I'll agree that there MIGHT be better things out there than what
Microsoft produces. but I have seen NOTHING that forces me to use
Microsoft. Did Microsoft FORCE Apple to charge too much for a MAC
computer so that most people would choose to buy IBM? No. Did
Microsoft FORCE IBM to hold Microchannel close to the vest and not
let anyone else make Microchannel products? No. Both of these bone-
headed decisions
[[Page 28204]]
were made without Microsoft input. Did Microsoft benefit from Apple
and IBM making stupid choices? You bet. So did I. The one GOOD thing
about the case is that it kept a lot of lawyers busy and thinned out
the crowds behind the ambulances.
MTC-00028230
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
The Man (Microsoft) did business and some people felt they were
cut out of the process. Since when is it the job of our justice
system to make sure a business makes money. If you have all this
time on your hands and want to spend our tax dollars, how about
going after the electric and gas companies.
MTC-00028231
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Microsystems is obviously a monoply even after this decision.
Therefore, if other monopolies were either split up or negated why
was this one treated differently? I believe that they should have
been advised to cease and desist their monopolistic practices. It
would have been a sound warning to other companies to not replicate
those actions.
MTC-00028232
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I believe the Microsoft case should be settled in its entirety
and all states should have to abide by the Federal decision. To do
otherwise undermines the economic system which has allowed America
to be the economic power that we are.
MTC-00028233
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I am very upset about the Microsoft Settlement. I did not really
understand how upset until somebody from Americans for Technology
Leadership called my home to harass me about how I needed to show
support for the Microsoft Settlement. I have an unlisted number I
don't even give it out to the credit card companies. Only my work
and very few others (including Microsoft) have my number at all. I
am possitive that my privacy has been invaded and I am not sure, but
I think my civil liberties may have been violated by the disclosure
of my personal information. The proposed settlement is stupid. It
will give 3rd parties who did not purchase any software, were not
affected by the lack of competition, and not forced to obtain
certification from Microsoft, to profit. While on the otherhand, all
those affected like customers, competitors, and professionals forced
to certify and recertify will go uncompensated. Lastly it does not
provide any measures for prevention of future violations. I think
that any compensation should go to competitors, customers, and
certified professionals who have suffered.
MTC-00028234
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I believe the settlement reached in the Microsoft Anti-trust
case is fair and equitable. Stop persecuting Bill Gates and let him
get on with his work
MTC-00028235
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Dear Sir: America has always been the land of the free; to grow,
to live, to achieve, to invent and to prosper. On the contrary it
seems to me that when someone succeeds in business to the point of
making large amounts of money someone or something starts to say
this is not right he has to be stopped or he will have a monopoly.
Leave Mr. Gates alone. He has been benevolent with his profits,
employed thousands and inspired thousands to go into the electronic
field. I am not as computer friendly as I would like to be, but at
my age, I am doing the best I can with the help of my son. Spend my
taxpayer monies and go after the Health Insurance Companies who are
dictating who will get the proper care and who won't. I have tried
to buy my own health insurance and have been refused because of my
age, varicose veins, etc., etc. They didn't care if I could pay;
they just didn't want to take the risk. I am sorry I am rambling but
my point is there are important issues to take care of. If the
product is good, people will buy it. If not, they will buy something
else. Frankly I am glad my computer came equipped with Microsoft. It
has served me well. I firmly believe in free enterprise. I don't see
anyone going after China. They seem to have a Monopoly on every item
sold in the USA. When I find something made in the USA, I buy it for
a souvenir. Please leave Microsoft and Mr. Gates alone and go catch
the bad guys. Thank you.....
MTC-00028236
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
The settlement should go through. Attempts by competitors of
Microsoft to stop the settlement process amount to no more than
using the American legal system for their own self-interested
business needs.
MTC-00028237
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
They have an agreement arrived by compromise. Stop wasting
T&M and proceed.
ED
MTC-00028238
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I have been watching the Microsoft case for a long time. It is
time it was over. Please let the settlement stand.
MTC-00028239
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
government should stay out of microsoft business.. that company
provides the economy with lots of jobs and taxes
MTC-00028240
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
No-one complained when Apple gave away systems to schools to get
schools to buy Apple. No-one complains about AOL blanket ads on
Time-Warner Cable. No-one suffered because of Microsoft but millions
benefitted. At least they are real--;unlike Enron.
MTC-00028241
From:
mutka--;[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Microsofts interests are compelling personal computer users to
use their operating system. This operating system which is
compelling me to act in ways that I would otherwise not choose
exceeds healthy business. competition is neither fair nor just.
Specifically I believe the physically and mentally disabled are
marginally included in this revolution of communication, information
and processing. Developers fear that the predators and reverse
engineers await on the margins of one operating system (XP) at the
ready to copy product(s) which are too young to defend themselves.
In particular, I cannot use Government protection and resources in a
capitalistic society to defend myself unless I can reasonably expect
my most basic development assumptions are protected. These basic
assumptions ought to have Microsoft preserve and create public Safe
Haven operating system components that will promote software
development which would not have to be redesigned because the
Operating System has changed. Open Platform operating system
proponents may find this a compromise. My example is my own product.
I continue to struggle to design a product that is open platformed,
meaning it should work on most operating systmens and within all
browsers. My testing has found I must discover software bugs that
seem to benefit the interests of the operating systems. I believe
that these software bugs are not intentional but they are so
numerous that a manager can work slowly on them and still be
rewarded. This is unfair to the public. This Business market is NOT
functioning normally! This is not a model of competition with room
for a better business to succeed! This current business model is
dysfunctional! I think this dysfunction works in the following way.
Current Law allows the creation of conflict between software
applications, hardware, and operating
[[Page 28205]]
systems when a competting business begins to spend resource to point
out the unfairness and fix the software bugs.
T
MTC-00028242
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
to whom it my concern...this whole matter has been nothing but a
joke to me...a total waste of money and time...with the money and
time spent on this whole debacle, all parties involved could have
new technologies out there for everyone to have and us...but instead
what we have is a company like AOL Time Warner looking for more
money that they don t deserve(let them go out and do it instead of
depending on another company to do it for them)...i think that
Microsoft has done a good job and has worked hard to get where
the're at...i will always buy and use their products...on the other
hand i would never us or do anything with AOL Time Warner...sounds
like to me they should be investigated for their aggressive business
practices also...they are a legal monopoly by our own
government...in closing its time to get back to work on newer
technologies and get out of the court room... thank you very much...
Martin C. Holgate
MTC-00028243
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I bought a new computer in November 2001. The operating system
was Windows XP but the web browser was AOL!! Ican't understand why
the states which are still pursuing the antitrust suit are being
backed by the competitors of Microsoft. Barksdale and Ellison have
beene crying spilled milk for years. I think the case should be
settled and put to rest so that the country can get back to
business.
MTC-00028244
From: John Gallant
To: Microsoft ATR
Date: 1/28/02 1:35pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
RE: Microsoft Settlement
Dear Ms. Hesse,
I have, as a stockholder of Microsoft, watched the antitrust
proceedings with interest. It seems that the Government has worked
an agreement that was fair to all parties and now wants to change
terms and conditions relating to the settlement. I do not feel it is
proper or fair that at this late date this be allowed to happen.
I further feel that Microsoft is not responsible for individuals
that create products that cannot compete in the marketplace because
of their own shortcomings (e.g.. Netscape). I am further annoyed
that my government sponsors what I consider a monopoly in the AOL /
Time Warner merger. Now AOL is trying use Netscape as a platform to
damage a perceived competitor, MSN. Try to visualize the PC software
market before microsoft created and organized it. Our ability to
communicate, organize and interface between businesses has been
improved on a scale beyond anything we could have ever imagined
prior to 1980. Why... Because Microsoft and its founders had a
vision. This settlement represents the best opportunity for
Microsoft and the industry to move forward, therefore I hope it will
end the litigation.
MTC-00028245
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I believe the U.S. government acted correctly to investigate
Microsoft for anti-trust actions. I don't necessarily agree with
every part of the decision handed down. I admit I haven't made time
to read all the parts of the decision handed down. I am in favor of
our society making market decisions for themselves in general. So
the U.S. government should not restrict the free decisions of
taxpayers to buy and sell what products they like.
MTC-00028246
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
Microsoft is a leader in the technology field and needs to have
the freedom to do what it does best. That is to improve the computer
technology for everyones use. If there are a few who do not wish to
use this technology from Microsoft they can choose to disregard what
has and is being made available for the consumer. The consumer has
the ability to decide what to use at home and at the workplace. Our
government should not interfer with private enterprise and the the
ideas of Microsoft or any company. The marketplace is where the
decisions should be made aabout who wants to use what products. This
lawsuit is frivolous.
Thank you.
MTC-00028247
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I am in agreement with the settlement that brings the lengthy
anti-trust case to an end.
MTC-00028248
From: Phan, Anh
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 1:34pm
Subject: Microsoft Settlement
Dear Antitrust Department officer,
I have read through the settlement proposal between the Justice
Department and Microsoft. It sounds like it is a fair, effective way
to resolve the issues within the merit of the case. I do not
understand why other non-settled states and critics want to include
a lot of different things falling outside of the scope of the law
suite and still claim they are acting on behalf of consumers!!! Like
judge Postner stated in his recent book, individual states should be
excluded from the antitrust suite since they are acting for the
interests of their own states only, not for the entire American
people. The purpose of the lawsuit is to restore the fair
competition environment in the industry, not to punish the
successful company, rewarding the failures, or helping the
competitors. American is a free market environment. It will go
against our principle if we force a company to include the product
of a rival company. If a company chooses to do so, it must come from
their own decision. The government should not dictate a particular
company how it would run its business. It should be free to run
itself in its own creative way as long as it follows the general
rules set and honored by every one. Freedom is the strength of our
economy, our spirit and our lifestyle.
Thank you very much for your time.
Regards.
anh.
MTC-00028249
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:35pm
Subject: Microsoft Settlement.
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As an active member of my community and a firm believer in
American ideals and constitutes, I needed to share my concern with
you and the Department of Justice on how unnecessary and detrimental
this on-going lawsuit against Microsoft is for our people and our
nation as a whole. How can our government leaders not see that this
attack on the Microsoft corporation is an attack on the American
principles on which this nation was created ? I believe that by
accepting the proposed settlement is the only step we can take which
will move us forward. This agreement will monitor Microsoft's future
production procedures, allowing the technology industry will be
allowed to concentrate on business by creating innovative,
comprehensible software to keep our IT market evolving.
Your time and attention to this matter is appreciated and I look
forward to seeing the end of this litigation once and for all.
Sincerely,
Lisa J Deriau
10215 21st Avenue SE
Everett, WA 98208
MTC-00028250
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
I am a registered active voter who supports the settlement in
the Microsoft matter. It is time to put this to rest and get on with
technological innovation. I hope that special interests and
competitors will not derail this settlement for their own selfish
and greedy motives.
David A. Pasqualini
[[Page 28206]]
MTC-00028251
From: John R. Callahan
To: Microsoft ATR
Date: 1/28/02 1:34pm
Subject: Microsoft Settlement
The proposed Microsoft-DOJ settlement is a judicial travesty. I
hereby state that I strongly disagree with the proposed settlement
and disapprove of the proposed settlement. I am a 20+ year computer
professional (as a member of the Association for Computing
Machinery), former (and tenured) academic, civil servant, and
current executive in the private sector. Feel free to contact me
with any questions or comments. I hereby place this comment in the
public domain.
(signed)
John R. Callahan, Ph.D.
[email protected]
MTC-00028252
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:25pm
Subject: Microsoft Settlement
It is time to end the government's encroachment on private
industry. Microsoft has worked well to become a leader in the
technology industry while providing an exceptional product. Please
end the anti-trust lawsuit and allow Microsoft to continue business
as usual.
MTC-00028253
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:36pm
Subject: microsoft should pay!
I strongly believe that microsoft broke the law and will
continue to break the law unless strict rules with real consequences
are brought to bear against the company. Microsoft is a monopoly
that is using that monopoly to extend unfairly it's control over a
huge portion of the US economy. Thank you for stopping this illegal
company!
joseph briggs
MTC-00028254
From: David Nadle
To: Microsoft ATR
Date: 1/28/02 1:37pm
Subject: Microsoft Settlement
Dear Sir or Madam:
I am pleased to have the opportunity to add my voice in support
of the proposed Final Judgement. In my opinion the proposed Final
Judgement protects Microsoft's right to define their product while
protecting the right of OEMs to define theirs, and this is good for
consumers.
Sincerely,
David L. Nadle, Ph.D.
MTC-00028255
From: UPEA
To: Microsoft ATR
Date: 1/28/02 1:38pm
Subject: Microsoft
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
The Department of Justice has worked hard to find the compromise
between the Microsoft Company and their competitors. I have followed
this issue with interest because I believe that business should be
allowed to find its own market. With this compromise now done, I
hope the Department can approve the settlement and allow business to
move forward.
Sincerely,
Audry Wood
MTC-00028256
From: Bob (038) Cathy
To: Microsoft ATR
Date: 1/28/02 1:40pm
Subject: Microsoft Settlement
ROBERT AND CATHY FRISBY
18523 Hottelet Circle
Point Charlotte, FL 33948
January 21, 2002
Attorney General John Ashcroft
US Department of Justice
Washington, DC
Dear Mr. Ashcroft,
The Department of Justice has finally agreed to terms on a
settlement that brings an end to the antitrust suit against
Microsoft. We are writing this letter to express support for the
settlement, and to ask that it is approved as soon as the public
comment period is over.
The faster this settlement is approved, the faster the economy
can get back on its feet. We can't stand to sit and watch the market
fall over 200 points one day, then rebound to close out the next day
with gains over 120. The settlement will encourage competition,
which will lead to better technology at a lower price. This
hopefully we will give us some of the stability our economy needs,
and can kiss goodbye to this recession. Microsoft does have to
forfeit a good deal of technology to their competitors, and they
will be monitored by an oversight committee who makes sure they are
abiding by the terms of that settlement, but this will certainly be
worth it in the long run.
Everything is now in place for an exodus from this recession. We
support this settlement, and hope it is implemented as soon as
possible.
Sincerely,
Robert & Cathy Frisby
MTC-00028257
From: Chip
To: Microsoft ATR
Date: 1/28/02 1:41pm
Subject: Microsoft Settlement
I feel the remedy is fair and should end the case completely. I
do not feel that Microsoft has hurt the public in any matter. Ten to
fifteen years ago the computer industry was in a mess. There was no
standard operating system. If you went to purchase a computer at
Radio Shack you would get a computer running Deskmate. If you went
to an Apple distributor you got the Apple operating system. If you
went to IBM you got their OS operating system. And then of course
you had Windows. Kids in school learned Apple but could not go into
businesses and run their computers. The average person had to have
an apple computer so their kids could do homework and an IBM
computer so they could work at home. Since then and thanks to
Microsoft the industry has been standardized, kids in school can go
out in the world and run computers. Employees can go home and work
on a computer with the same system they use at work. By becoming
standardized, how does this hurt consumers? Microsoft has saved the
average consumer thousands of dollars. By their continued innovation
and development of the operating system they have added tools and
recourses that would have cost the average consumer a lot of money.
If Microsoft charged for each addition to its product, or forced the
consumer to purchase such things as Internet explorer, word,
notepad, a calculator, Paint, the basic TCP/IP protocols, the
average person could not afford these add ons and would be shut out
of the internet.
As for Internet Explorer, that was the best thing that Microsoft
ever did. It made surfing the web enjoyable. Question, did you ever
try to use Netscape Navigator before Internet Explorer came along, I
have and it sucked. You had to pay around $50.00 for it, it took
several hours to down load and would crash so often that trying to
look up one item would take hours. Microsoft came and gave you
Internet Explorer, which at first had its problems, but when they
finally integrated into the operating system, it was fantastic, you
could surf the net and really enjoy the experience. System hangs and
lockups that occurred often before integrating disappeared. And by
integrating the software it saved me money, how DID this hurt me? I
know the argument it hurt competition, my argument is it did not
hurt competition, it caused competition. It caused Netscape to wake
up and make a better product. At a more reasonable price, this let
the consumer save money by being able to buy a better product at a
lower cost. Microsoft did nothing wrong. Those consumers that wanted
Netscape still continue to use it, if Netscape wanted to keep
customers, and gain customers, they should have developed a product
that knocked the socks out of Internet Explorer, but did they no,
they cried and sued. They gave up, because they would not take the
time and resources to develop a better product. I know the argument,
how could they when they did not have the money because Microsoft
was giving the product away. Simple, build it and they will come.
The consumer wants better products and if the consumer found an item
better, those that can afford will buy it.
Is it wrong, to build your business, and to protect your
business. NO, it is not wrong! Microsoft played hard ball, yes, but
how is that different from any other company that wants to grow,
expand, and make a difference. Netscape, AOL, Sun Microsystems and
others are playing hard ball now, buy suing Microsoft, because of
their jealousy over the dominance Microsoft has. If the companies
really cared about the consumer, they would build better products
that would blow Microsoft way. But do they no, the run and scream
and sue Microsoft, because Microsoft does not play fair. If these
companies would build better products on the same caliber as
Microsoft, consumers will go there; they will buy what they want.
But stripping down Windows will only hurt the consumer, because the
costs associated with
[[Page 28207]]
buying each piece of software will be more than the average consumer
can afford. But those that can afford the software will buy the
better software. How is this any different from the auto industry?
Yes, I know that there are several companies competing equally, If I
went to ford to buy car should they be required to give me a
stripped down car. So that I can go to Chrysler to purchase the
motor, to Bose for the stereo, to Goodyear for the tires, to Monroe
Muffler for the Shocks, and Muffler. NO, they provide the basic
systems and then you buy the additional or custom items that you
want. Microsoft does that they provide the consumer with the basics
and let the consumer buy what they want. The problem is the other
companies are not making products that are better and more
desirable.
End the lawsuit now and let Microsoft go back and build and
innovate so that the envelope of information and knowledge becomes
more reliable and available to the average consumer, and so that
these other companies will be forced to push the envelope even
further buy building better software. If these companies would just
worry about building better software that pushes the limits, they
would not have to worry about Microsoft.
Thank you
Gary E. Altman II
MTC-00028258
From: Stevens
To: Microsoft ATR
Date: 1/28/02 1:42pm
Subject: Microsoft settlement
Robert & Natalie Stevens
1717 Joshua Court
Palm Harbor, Florida 34683
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Regarding the recent Microsoft Antitrust settlement, the PC
industry, the economy and the stock market have suffered enough from
this misguided lawsuit which was instigated by Microsoft's
competitors who elected to compete via lobbying and courtroom
tactics rather than in the marketplace. I firmly believe that
litigation should come to an end. At this point, it seems ridiculous
to prolong this case any further.
Microsoft is much less of a problem than the Cable-Satellite-
Broadcast Cartel which has conspired to restrict trade by
controlling what consumers will and will not be able to watch by
forcing viewing ``packages''. Cable and DBS satellite
providers mandate that ``packages'' must be purchased if
you want to watch even one of the channels in the package. This lack
of a la carte offerings forces consumers to buy a multitude of
unwanted channels in order to see a few desired channels.
Business Week (Jan 21, 2002 pg. 71) pointed out that AOL/Time
Warner (and other cable and mini-dish satellite providers) are
collecting $54 per month from its subscribers while Microsoft is
lucky if it sells a home PC user a $90 operating-system upgrade
every three or four years. If you are worried about monopoly power
forcing consumers to pay more, Microsoft should NOT be your target,
the Cable-Satellite-Broadcast Cartel should.
The settlement proposed in early November of last year contains
several restrictions and commitments to which Microsoft has agreed.
In these commitments, Microsoft permits computer makers to replace
access to Microsoft features with access to the competitor's
software. This will require that Microsoft change certain interfaces
necessary to the Windows'' operating system. However, the list
doesn't end there. Microsoft has agreed not to retaliate against its
competitors and to ensure this from happening, a three person
technical committee will be formed to make sure that Microsoft
sticks to the terms of settlement.
As you can plainly see, Microsoft has more than paid for its
previous actions. As I believe Microsoft to be a respectable
company, I assure you that this settlement will more than suffice.
Sincerely,
Robert Stevens &
Natalie Stevens
MTC-00028259
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 1:40pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Don Williams
2068 US HWY 71
Clarinda, IA 51632
MTC-00028260
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:42pm
Subject: Microsoft Settlement
3575 Dutch Hollow Road
Strykersville, NY 14145-;9558
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
January 26, 2002
Dear Mr. Ashcroft:
I am writing in support of the recent settlement between
Microsoft and the US department of Justice. I think that government
should stay out of free enterprise and this is a classic case where
the three years of litigation reflects intense lobbying on behalf of
the competition rather than a genuine concern for the American
public.
The terms of the settlement go beyond what was originally called
for when the lawsuit began. Microsoft will be forced to increase
relations with computer makers and software developers, disclose
technological information to competitors, grant computer makers
broad new rights to configure Windows, and form a three-person team
to monitor compliance with the settlement.
While I think that Microsoft is giving away too much, I think
there is no alternative since further litigation could be
detrimental to Microsoft's and our IT sector's future. Please
implement the settlement and look out for the best interests of the
American public.
Sincerely,
William Streicher
MTC-00028261
From: Kent Compton
To: Microsoft ATR
Date: 1/28/02 1:43pm
Subject: Microsoft Settlement
Dear Department of Justice,
I think a quick settlement with Microsoft is in the best
interest of all consumers. Throughout this trial I've gotten the
feeling that a majority of the issues were in large part due to
weaknesses in Microsoft's competitors. My favorite example is
Netscape which originally paved the way to making browsing the World
Wide Web easy. Unfortunately, they became slow and unresponsive to
the new features I wanted so I switched to Internet Explorer. Before
the third version of, IE Microsoft's product was inferior. Once it
was superior I made the change. If someone wanted to use the
Netscape browser it's certainly not hard to find. I saw a link to it
on both Time and People magazines'' web sites just last night.
Don't prop up bad businesses with legal proceedings. The strong
companies will survive and the weak ones should be tasked with
changing their business models or perishing.
Please settle this case so that I can focus on the important
things like keeping my job. We all have more important things to
focus on.
Sincerely,
Kent Compton
907 W. Brittany Dr
Arlington Heights, IL 60004
MTC-00028262
From: Paul Cantrell
To: Microsoft ATR
Date: 1/28/02 1:43pm
Subject: Microsoft Settlement
I am strongly opposed to the proposed final judgment of the
Microsoft anti-trust case. It is weak, and unlikely to have any
substantive effect on Microsoft's conduct.
The PFJ places far too much trust in Microsoft's willingness to
follow the spirit as well as the letter of the settlement. When the
PFJ says in section III.J.1, for example, that Microsoft is required
to share certain technical details, except when those details would
harm security--;as determined by Microsoft itself!--;it
nullifies any real power
[[Page 28208]]
the settlement has to force Microsoft to share the details the
company most wants to hide.
General opinion in the software world is that obfuscation is the
enemy of security. A system is only secure if everyone knows how it
works, and agrees it can't be broken. As a software engineer, it is
unclear to me how hiding any API, protocol, or documentation would
protect or enhance the security of any conceivable ``anti-
piracy, anti-virus, software licensing, digital rights management,
encryption or authentication systems''. It is eminently clear
to me, however, how Microsoft could cite unspecified ``security
reasons'' to cripple execution of the judgment. Section III.J.1
is a loophole, and only a loophole. So why is it present in the PFJ?
The judgment is rife with similar problems. Microsoft must not be
able to ``outsmart'' any judgment in this case. The
current settlement fails that test miserably. Thank you for this
opportunity for public comment.
Paul Cantrell
Software Engineer
St. Paul, Minnesota
MTC-00028263
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:44pm
Subject: Fwd: Attorney General John Ashcroft Letter
CC:
[email protected]@inetgw
Attached is the letter we have drafted for you based on your
comments. Please review it and make changes to anything that does
not represent what you think. If you received this letter by fax,
you can photocopy it onto your business letterhead; if the letter
was emailed, just print it out on your letterhead. Then sign and fax
it to the Attorney General. We believe that it is essential to let
our Attorney General know how important this issue is to their
constituents. The public comment period for this issue ends on
January 28th. Please send in your letter as soon as is convenient.
When you send out the letter, please do one of the following:
* Fax a signed copy of your letter to us at
1-;800-;641-;2255;
* Email us at [email protected] to
confirm that you took action.
If you have any questions, please give us a call at
1-;800-;965-;4376. Thank you for your help in this
matter.
The Attorney General's fax and email are noted below.
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
In the Subject line of the e-mail, type Microsoft Settlement.
For more information, please visit these websites:
www.microsoft.com/freedomtoinnovate/ www.usdoj.gov/atr/cases/ms-
settle.htm
12724 35th Place NE
Lake Stevens, WA 98258
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing today to encourage the Department of Justice to
accept the Microsoft antitrust settlement. A settlement is available
and the terms are fair, I would like to see the government accept
the settlement and move on.
Many people think that Microsoft has gotten off easy, in fact
this is not true. Microsoft has agreed to many concessions in order
to reach the settlement. The biggest being that Microsoft agreed to
release part of the Windows base code to its competitors. This is so
Microsoft's competitors can develop more compatible software.
Microsoft has spent years and millions of dollars developing their
products, now they are required to hand out part of their work.
There is a big difference between companies that develop new
products and companies that copy them. Unfortunately, the government
has decided to harass the company that develops them. This issue has
been drug out for over three year now; it is time to put an end to
it. Microsoft and the technology industry need to move forward. It
will be virtually impossible to move forward with this issue hanging
over the industry's head, Please accept the settlement allow the
industry to move on.
Sincerely,
Arnie Solvang
MTC-00028264
From: Terry Williams
To: Microsoft ATR
Date: 1/28/02 1:42pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
For the record, I was against the original lawsuit filed against
Microsoft. As a consumer, I purchased my PC from Dell with Microsoft
software installed. I made this decision based on past experience
with their software. My PC came with Internet Explorer as my
browser. I have experience in using Netscape and my personal
preference is with Internet Explorer. As a consumer I could have
made an easy change to my system and gone with Netscape. The
original lawsuit was brought because someone felt that Microsoft had
an unfair advantage by bundling all of their software together. In
my opinion, this is a false premise and tends to lead us done a
slippery slope. What will happen if Lotus 1-;2-;3 decides
that Microsoft has an unfair advantage with bundling their Excel
with other products. Price and quality were my major reasons for
choosing Microsoft software. Because the best way for Netscape to
compete is to create products that compete with Word, Excel, Power
Point and Outlook Express. I have used Netscape email in the past
and sincerely believe Outlook is a far better product.
I retired on 12/31/99 from CSX Transportation as Director of
Interline Switching. I have a Masters Degree from Johns Hopkins with
a concentration in Information Technology. I believe overturning the
original lawsuit and sending it back to the lower court is the
correct approach. I believe Microsoft should be held harmless
because a settlement will be giving into those members of Congress
that opposes big business. As I have stated, ``There are market
remedies for consumers who wish to use Netscape as their
browser''.
In closing, if someone spends their private capital and comes up
with a automobile engine that runs on water, is the government going
to step in and force the developer of this new engine to share it
with everyone else? I hope your answer is NO, because when or if we
adopt such a stand, all of the values and principles for which we
stand will have been destroyed.
Sincerely;
Terry L. Williams, Retired
12489 Turnberry Dr.
Jacksonville, Fl. 32225-;4602 =
MTC-00028265
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:46pm
Subject: Microsoft Settlement
To: [email protected]
Subject: Microsoft Settlement
I am a software engineer employed in the computer graphics
industry. I am not now, nor have I ever been affiliated with
Microsoft or any of its competitors (except, of course, that I use
products of both). The opinions and comments expressed are my own. I
believe the settlement proposed by the Justice Department falls far
short of what would be in the best interest of the industry and of
the public. I am particularly concerned about the ability of
Microsoft to effectively destroy certain popular and widely used
standards such as OpenGL and Java.
For software developers, such as me, these standards are
valuable tools that we use to produce our products. Once they are
firmly established and widely used, we can count on them to be
available and supported for a variety of platforms and devices over
a relatively long period of time. I consider these to be a kind of
public asset that help to ensure that different products can
communicate and be compatible with each other in various ways.
Microsoft has the ability to erode or destroy these standards
(and the motivation to do so) only because of the monopoly it holds
on the operating system. In a competitive environment, no OS vendor
would voluntarily drop support for widely used and still popular
standards such as these, since that would give its competitors an
important advantage in the marketplace.
Suppose that the nation's electrical power were largely provided
by a single company that was also in the electrical appliance
business. This company realizes that by changing the standards for
power distribution, it can make it much more difficult for any other
company to connect to the power grid, or to produce appliances that
will work in the vast majority of homes. I believe that this is in
effect what Microsoft would like to do and IS DOING in certain ways.
I fear that Microsoft next plans to target Internet standards,
with the aim of making it more difficult for other software and
platforms to effectively use the Internet and interact with Windows
platforms. For most
[[Page 28209]]
companies, competitive market pressures would prevent this kind of
action, but I believe Microsoft has demonstrated that additional
regulatory restrictions are required to restrain a monopoly from
such practices.
Heber Bennion
Salt Lake City, Utah
[email protected]
MTC-00028266
From: Melbourne Anderson
To: Microsoft ATR
Date: 1/28/02 1:46pm
3908 59th Street Court NW
Gig Harbor, WA 98335
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you today to express my opinion in regards to the
Microsoft antitrust dispute. I support Microsoft in this dispute and
would like to see this litigation resolved. Microsoft is a good
company that has contributed a great deal to our society.
Restricting this company will not benefit anyone. I support the
settlement reached in November as a means to end this dispute. This
settlement is fair and reasonable. Microsoft has agreed to license
its Windows operating system products to the 20 largest computer
makers on identical terms and conditions, including price. Microsoft
has also agreed to design future versions of Windows to provide a
mechanism to make it easy for computer makers, consumers and
software developers to promote non- Microsoft software within
Windows.
During these difficult times, one of our highest priorities
should be to stimulate our lagging economy. Restricting Microsoft
will not accomplish this end. Please support this settlement. Thank
you for your time. Sincerely,
Melbourne Anderson
MTC-00028267
From: William R. Kesting
To: Microsoft ATR
Date: 1/28/02 1:46pm
Subject: Microsoft Settlement
Dear Sirs,
I strongly believe that the terms-which have met or gone beyond
the findings of the Court of Appeals ruling-are reasonable and fair
to all parties involved. Please do what you can to bring this matter
to a close.
Sincerely,
William R. Kesting
President
Kesting Ventures Corp.
MTC-00028268
From: Lisa Throneberry
To: Microsoft ATR
Date: 1/28/02 1:48pm
Subject: Microsoft Settlement
Lisa Throneberry
338 Knotts Circle Woodstock, GA 30188
770-;928-;8478 770-;516-;5059 fax
January 21, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing in full support of the recent settlement between
the US Department of Justice and Microsoft. The antirust case has
dragged on far too long to date and should be ended as soon as
possible. Microsoft is a leading innovator of technology over the
last decade. Under British definition a monopoly delivers poor
quality products at inflated rates. Microsoft has consistently
innovated excellent products and sold them at fair prices. They have
also not infringed upon my rights as a consumer. I am free to
purchase any software I desire.
The terms of the settlement are not letting Microsoft off easy.
They will have to document and disclose for use by competitors its
internal interfaces and protocols. They will also be agreeing to not
retaliate against computer makers and software developers who
develop or promote software that competes with Windows''
operating system products. These concessions give a huge advantage
to competition and violate the principles of free market economics.
At any rate the settlement should be relied since the
alternative of further litigation would be too much to bear for
Microsoft, the IT sector, and our nation's economy. Please take the
next step. Thank you.
Sincerely,
Lisa Throneberry
MTC-00028269
From: k l
To: Microsoft ATR
Date: 1/28/02 1:47pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I oppose such a preposterous resolution to the Microsoft case.
In the last several years, the U. S. Court of Appeals has found
Microsoft guilty of violating all rules of the anti-trust laws.
Yet in the framework of the PFJ, better know as the Proposed
Final Judgment, the DoJ throws out these findings, indicting
Microsoft on all charges of business wrongdoing. More profound and
astonishing is how the PFJ permits Microsoft to continue with its
monopolistic practices. I am completely convinced you will receive
similar sentiments entailing the various loopholes apparent in the
final settlement.
With the evidence presented, the PFJ does not even make an
attempt to break up the software giant. What the PFJ permits is the
following: permitting Microsoft to leverage its current monopoly
positions and expand its business into several other technologies
markets. In the past most monopolies were either broken up or
carefully regulated. Why not Microsoft? Does AT&T ring a bell?
At the same time, severe reprimands by the DoJ only hinder
instead of instigating change with Microsofts existing operation
methodologies. Time and time again as history will show, Microsoft
will abuse its monopoly position. Breaking up Microsofts business
into several parts just might be the best antidote to prevent MS
from even doing more damage to the industry. In closing your honor,
I submit to you my disapproval of the Proposed Final Judgment.
Sincerely,
Mr. Amor Paraso
7230 Adams Road
Magna UT 84044
MTC-00028270
From: Shanti Kulkarni
To: Microsoft ATR
Date: 1/28/02 1:49pm
Subject: Microsoft Settlement
Regarding the Microsoft settlement, I hope the court will ensure
that any settlement is strong enough to ensure a level of
competition which provides value to the public and encourages
innovation. As was shown by the 1995 ruling, Microsoft will simply
weasel out of any agreement that does not include a strong
enforcement mechanism. It will use any provided wiggle room to
integrate any emerging PC or Internet technology into its all-
consuming operating system. Given the monopoly that Windows enjoys,
such integration has the effect stifiling innovation by unaffiliated
vendors, and denying the public the value of potential competition.
It is in the public interest that Microsoft be barred from doing so
again, as it did with its Internet Explorer, and is currently doing
again with Media Player. I urge the court to reject DOJ's proposed
settlement, and any settlement that lacks strong enforcement and
heavy penalties for failing to comply with its terms.
Shanti Kulkarni, CCNP, CNE, RHCE
Sr. Network Engineer, Deltek Systems
703-;734-;8606 x4590/
[email protected]
MTC-00028271
From: Webb, D. Clinton
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 1:51pm
Subject: Comments on U.S. v. Microsoft Corporation settlement
To Whom it May Concern:
I am troubled by the terms of, and procedure for seeking the
settlement of, the antitrust lawsuit between the U.S. Department of
Justice and Microsoft Corporation.
First, I urge the court to confirm whether the parties have
strictly adhered to the requirements of the Tunney Act. Second, I
urge the court to investigate whether Microsoft Corporation has
improperly discussed details of the settlement with Congress. Third,
I urge the court and the parties to confirm that the proposed
settlement will have the pro-competitive effects of opening the
browser market to third parties, particularly in light of (i) the
parameters of the Sherman/Clayton antitrust act; (ii) Netscape/AOL's
recent lawsuit against Microsoft for alleged anticompetitive
business practices in the web browser market; (iii) improper /
unlawful bundling of Microsoft's web browser and operating system;
(iv) anticompetitive original equipment manufacturer operating
system licensing practices.
In addition, I would like to add the following to the public
comment process, as it relates to the conclusion of the Microsoft
antitrust proceedings:
As an attorney, a Windows operating system and Microsoft
Internet Explorer equipped computer user, and more importantly, an
American citizen, I am
[[Page 28210]]
troubled by the fact that the following summation of anyone's chance
at bringing Microsoft to justice receives this type of response from
the popular press: Quoted from http://forum.fuckedcompany.com/fc/
phparchives/search.php'search=microsoft
Netscape sued Microsoft. I predict:
1) It finally goes to court after a year
2) Microsoft appeals and tries to delay every court date
3) Microsoft is found guilty
4) They appeal
5) Two years have passed
6) More Microsoft products dominate the market
7) Microsoft settles with an arbitrator for $10 million
8) Netscape is pissed
9) Microsoft wins
(you may insert any company or product into the above places
where Netscape is)
Thank you for your consideration of this (informal) comment.
Sincerely,
D. Clinton Webb
Palo Alto, California
[email protected]
MTC-00028272
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:52pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse:
My qualifications:
Bachelor of Science in Computer Science 1975
Over 20 years of computer programming, software installation,
and computer repair experience
My overall complaints of the content of the ``Proposed
Final Judgement''
1) No attempt to remedy the past gains in market share and
capital amassed by Microsoft through the unfair, illegal, and anti-
competetive business practices employed in the intentional quest to
dominate the PC market.
2) No attempt to remedy or control the proliferation of
Microsoft Office, which is dominant at least in part due to
Microsoft's API secrecy, bundling, tie-in, and interoperability
tactics. Forcing complete disclosure of the file formats used would
be a minimal attempt at restoring competition to this area.
3) No attempt to regulate Microsoft's behavior in non-desktop PC
markets ( wireless, handheld, internet services, etc. ) where they
have the leverage and funding amassed to date to overwhelm the
competition in any emerging market that they choose to enter.
4) The PFJ contains enough loopholes and Microsoft-friendly
definitions to let this company, famous for its past indiscretions,
continue to flaunt the intent and purpose of this judgement.
Specific objections to the terms:
III Prohibited Conduct
J 2 ``(c) meets reasonable, objective standards established
by Microsoft for certifying the authenticity and viability of its
business, (d) agrees to submit, at its own expense, any computer
program using such APIs, Documentation or Communication Protocols to
third-party verification, approved by Microsoft, to test for and
ensure verification and compliance with Microsoft specifications for
use of the API or interface, which specifications shall be related
to proper operation and integrity of the systems and mechanisms
identified in this paragraph. THIS ALLOWS MICROSOFT THE LEEWAY TO
REFUSE TO COOPERATE WITH OPEN SOURCE DEVEOPERS, WHOM THEY VIEW AS
THE MOST SIGNIFICANT THREAT TO THEIR MONOPOLY.
The DOJ should not allow the criminal to define the terms, but
rather specifiy that the API shall be available to developers at
reasonable, fixed cost.
VI Definitions
N. ``of which at least one million copies were distributed
in the United States within the previous year.``
THIS STIPULATION IS A BARRIER TO ANY STARTUP COMPANY, and is
unnecessary.
R.``Timely Manner means at the time Microsoft first
releases a beta test version of a Windows Operating System Product
that is distributed to 150,000 or more beta testers.``
DOES THIS MEAN THAT MICROSOFT CAN HAVE 149,000 BETA TESTERS
WITHOUT REVEALING API SPECIFATIONS TO OUTSIDE DEVELOPERS?
Please, substitute wording that promotes fairness.
U.``Windows Operating System Product? means the software
code (as opposed to source code) distributed commercially by
Microsoft for use with Personal Computers as Windows 2000
Professional, Windows XP Home, Windows XP Professional, and
successors to the foregoing, including the Personal Computer
versions of the products currently code named ?Longhorn? and
?Blackcomb? and their successors, including upgrades, bug fixes,
service packs, etc.
The software code that comprises a Windows Operating System
Product shall be determined by Microsoft in its sole discretion.
HERE WE GO AGAIN. LIMITING THE REMEDY TO ONLY ONE SEGMENT OF
INFORMATION TECHNOLOGY, WHILE MICROSOFT USES ITS CLOUT IN ANY
EMERGING MARKET THAT IT CHOOSES TO ENTER.
Please apply the restrictions more broadly.
Conclusions:
The Proposed Final Remedy is too little, too late. If fails to
properly regulate Microsoft's business practices in the future,
while wholly neglecting to apply any remedy for the misconduct of
the past. The comsumers and software developers and even the
hardware developers are NOT adequately served by this document.
If the Department of Justice will not enforce the anti-monopoly
law of this country, then where can we, the citizens, look for
remedy ?
Tom B. Younker
777 Riderwood Dr.
Decatur, GA 30033
404-;248-;8082
Ownere/Member of Dare Computer, LLC
404-;248-;0336
MTC-00028273
From: Ronald K Finn
To: Microsoft ATR
Date: 1/28/02 1:51pm
Subject: Microsoft Settlement
To whom it may concern:
It is my opinion that Microsoft has been hurt enough. We owe a
lot to that company for what we have today. It will serve no purpose
to the American public to penilize them further.
Sincerely,
Ronald K. Finn,
6507 Rob Road,
Black Hawk SD. 57718
MTC-00028274
From: Gary Shapiro
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 1:55pm
Subject: Microsoft Settlement
OLE--;Obj
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington DC 20530-;0001
Re: United States v. Microsoft Corp., Civil No. 98-;1232
Dear Ms. Hesse:
Microsoft has been a valued exhibitor and partner in the
International Consumer Electronics Show for several years. Bill
Gates has also been a featured keynote speaker at the CES several
times in the last ten years. In introducing Bill Gates to the
audience the last two years I used a collection of concepts I
summarize below. I hope that in approving the settlement you
consider some of the sentiments expressed. Not only does litigation
cost the business community and taxpayers billions of dollars every
year, but additionally, long drawn-out court battles distract
businesses from focusing on their core productive operations. With
the U.S. now officially in recession and in the face of new concerns
domestically, a settlement is needed to provide stability for the
industry that has driven the new economy over the last decade.
Ultimately, Microsoft's story is our nation's story. It's about
how ideas and a small scrappy upstart can become a world leader and
change the face of history. Our country and Microsoft started with
driven people pursuing a dream and providing a compelling benefit.
Microsoft offered anyone access to freedom by providing a simple
interface to conquer the complexities of a computer. Our founding
fathers gave us freedoms embodied in the structure and the standard
of the Constitution and the Bill of Rights. The American Bill of
Rights are becoming accepted by the world and improving the world
standard of living. So, too, are the Microsoft standards being
accepted and improving the lives of millions around the world.
In the Information Age, Microsoft gave us access to information.
Microsoft is to other
[[Page 28211]]
corporations what our country is to the rest of the world. Both are
the new kids that did well. Each started as an idea. Each became a
world standard. These standards have changed the world for the
better. For computer users, Microsoft made it simple to create, edit
and send documents and presentations anywhere in the world. I had to
edit presentations recently in Egypt, Germany and Switzerland and I
was comfortable this year using others'' computers in these
countries as they all used Microsoft products.
Microsoft has improved the world's standard of living. Microsoft
standards increase world productivity by making computers everywhere
easy to use. Without the Microsoft standard it is doubtful so many
people would be comfortably using computers. Microsoft has not only
made many investors happy, it directly employs some 40,000
exceptional people in some 60 countries. More, many others are
employed because of Microsoft products. Microsoft also exports more
than it sells domestically. With this positive economic activity,
terrific products, and reputation for charity, any other country
would consider itself blessed to have Microsoft headquartered within
its borders, adding to its tax rolls and employing its citizens.
There is a Yiddish word, ``mensch''. It means doer of
good and applies to someone who you know well and does good things
for people. I submit to you that when a company or individual does
good things of such magnitude then they too can wear the
``mensch'' mantle. Not only has Microsoft improved the
world's standard of living, but its founder Bill Gates along with
his wife Melinda, have donated some $21 billion to the Bill and
Melinda Gates Foundation for global education and healthcare. The
magnitude of how Microsoft has changed the world and this generosity
are so large, that I submit to you both Microsoft and Bill Gates
deserve the appellation ``mensch''.
Sincerely,
Gary Shapiro
President and CEO
Consumer Electronics Association
www.ce.org
MTC-00028275
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:54pm
Subject: Microsoft Settlement
Dear Ms. Hesse:
I am a retired government employee who taught software courses
for the Navy. My students included military as well as civilians.
These were the teams, made up of both men and women, that produced
training manuals and exams for the Navy.
After testing many different software programs Microsoft was
chosen for a number of reasons; it was very computer friendly and
the company offered help desk assistance when no other company did.
At that time, because all of us were new to computers, these were
most compelling reasons. I do not understand why our government, in
this country of freedom and opportunity, insists on the continued
harrassment of this young man. Who's next? What other country in
recent times has produced such a creative mind? Has democracy
actually come to this?
Sincerely,
Bettye D. Schmollinger
CC:[email protected]@
inetgw
MTC-00028276
From: Anna Gallegos Brannon
To: Microsoft ATR
Date: 1/28/02 1:46pm
Subject: Microsoft Settlement
Thank you for your time and consideration.
Anna Gallegos-Brannon
President, LULAC Council #3027
January 28, 2002
Renata B. Hess
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
via email ([email protected])
VIA FACSIMILE: 202/307-;1454 (or 202/616-;9937)
SUBJECT: Microsoft Settlement
Dear Ms. Hesse:
The League of Latin American Citizens--;Long Beach Council
believes that the proposed settlement of the Microsoft antitrust
case amounts to a reward for misconduct. Indeed, the settlement is
so good for Microsoft, that it is attempting to buy off those who
oppose it with an offer to California and other states to pay their
legal costs--;if they will step aside and let the sweetheart
deal go ahead unchallenged.
This astonishing offer merely confirms the notion that Microsoft
believes that all of its errors can be wished away by money. And,
it's not the first time that Bill Gates'' company has reached
into its treasury and come up with dollars for politicians. During
the 2000 political campaign, the company spent more than $6 million
on contributions to political campaigns, state parties and political
action committees. One can only assume, it hoped to generate
political pressure for a favorable settlement.
Whatever the reason, Microsoft has managed to negotiate a
settlement, which to a remarkable degree would make it the arbiter
of its own compliance--;an astonishing turnabout for a company
that has repeatedly skirted U.S. antitrust law and found guilty by
several courts of abusing its monopoly power. California Attorney
General Bill Lockyer is right to resist the settlement and to
continue to press for a tough remedy that would limit Microsoft's
ability to leverage its Windows monopoly and extend its market
domination into more facets of our information age economy.
Nine state Attorneys General and the Corporation Counsel of the
District of Columbia chose not to support the current Microsoft
settlement and have offered proposals that will adequately address
the agreement's loopholes. More specifically, these proposals
require that Microsoft fulfill both technical and licensing
obligations that will bring greater competition to the software
market and greater choice to consumers. In addition, the proposals
include more enforceable oversight provisions and stricter penalties
in the event Microsoft does not comply with the settlement. The Long
Beach Council of LULAC supports these proposals and urges the Court
to adopt them.
Anna Gallegos Brannon President, LULAC Council #3027
Long Beach Council #3027
3824 East La Jara Street,
Long Beach Ca 90805
Phone 562 633 3853
Fax 562 590 6494
MTC-00028277
From: Thane Perkins
To: Microsoft ATR
Date: 1/28/02 1:47pm
Subject: Microsoft Settlement
It think the settlement is a step in the right direction.
However, I do not think it is a big enought step. I am not one in
favor of splitting Microsoft up or fining MS tens of billions of
dollars. However, there are some marketing practices that Microsoft
is still employing and will continue to employ because they are
successful. Unless Microsoft is additionally shackled in some way so
that they stop doing these things, Microsoft will use the power and
money that they got from their previous illegal business practices
to continue to stifle competition and ultimately hurt innovation:
1) Microsoft does innovate and will occasionally surprise me.
However, they often eye a successful idea and decide to develop a
similar application. This is not bad in an of itself. But, instead
of trying to do compete with improved functionality, Microsoft uses
their huge cash reserves to worm their way into the market. If they
are way behind the competition, they GIVE the new software
AWAY--;either by integrating it into their operating system or
doing special ``deals'' with OEMs so people get the
software free or dirt cheap. So, even if the settlement stops
Microsoft from making exclusionary deals with OEMs, Microsoft will
out-price the competition.
2) Microsoft is a master of the VAPORWARE. They can really put a
damper on the sales of a competing product simply by making a press
announcement. I wish they would be restricted about the number of
days prior to releasing a completely new product could Microsoft
announce its development.
And finally, it is 2002--;a long time since the original
suit was brought and an eternity in terms of the High-Tech industry.
Remember, this suit was brought because Microsoft had broken a
previous agreement with the DOJ. So, what happens if Microsoft
breaks this agreement? Will we have to wait nearly a decade for the
next decision--;allowing Microsoft to do business as usual in
the mean time?
MTC-00028278
From: MD Dbeis
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft Settlement
M.D.
CS&S Computer Systems, Inc
1505 W. University Dr. Suite 103
Tempe, AZ 85281
www.css-computers.com
480-;968-;8585
480-;968-;9544 FAX
[[Page 28212]]
Tel (480) 968-;8585
CS&S Fax (480)968-;9544
Computer Systems
January 28, 2002
Attorney General John Ashcroft
DOJ, 950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
The way that this lawsuit against Microsoft has quickly
degenerated into a vengeful exchange of threats of breaking the
company up should give pause to any of us in the IT business. It
should be acknowledged that Microsoft has not carried itself in the
noblest fashion at times, but this alone should not be cause enough
to drag the company through the federal courts. Furthermore, if this
sort of action can be so easily brought against a company like
Microsoft, then other IT companies may soon find themselves in a
similar position.
For the sake of clarity, this settlement should be endorsed by
all. At it stands, the terms of the settlement go beyond the scope
of the original lawsuit. They address the notorious issue of
Microsoft's relationship with OEMs, and now Microsoft will have to
change the way it sets up contracts with other companies that
distribute Windows as well. Of course, its greatest advantage is it
will bring to an end this cycle of negative posturing between those
on the government's side and those on Microsoft's. My business was
noticeably pinched by the lawsuit, and I--;and man), others-
cannot afford to have the entire IT business in a wait-and-see
attitude to see if Microsoft will be split up.
I support this settlement, and convey my hope that this kind of
litigation against an American company will not happen again any
time soon.
Sincerely,
Mountasir Dbeis
CEO
cc: Representative Jeff Flake
1505 West University Dr. Suite 103
Microsoft
CERTIFIED PROFESSIONAL
Tempe, AZ 85281
Product Specialist
MTC-00028279
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:56pm
Subject: Microsoft Settlement
Dear Goverment, please dont distry such a great and valueble
company as Microsoft. All ``nonefair-monopolist''
accusations are result of their competitors and lobby.
Huge progress of the human civilization build by Microsoft.
Millions worked place in the world.
CC:[email protected]@in
etgw
MTC-00028280
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft case settlement
I hope the government will settle this case. I love the
Microsoft products and own the stocks. It has been one of the best
American companies of all time. It is time to stop beating up on
them. Let the other companies that don't like Microsoft make
products that are better and let them stop trying to use the Courts.
Alan Sirkin
MTC-00028281
From: MOHINDER AGARWAL
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft
Dear Sir;
I believe the terms-which have met or gone beyond the findings
of the Court of Appeals ruling-are reasonable and fair to all
parties involved. This settlement represents the best opportunity
for Microsoft and the industry to move forward.
So I support the settlement.
Mohinder Agarwal
MTC-00028282
From: Pamela Mann
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft
In short, I would like to see no action which tramples on the
freedom to be innovative and resourceful in the business arena.
There are always victims that feel their rights have been
compromised when beaten at the finish line. The entrepreneurial
spirit is what makes America great.
Thank you,
Pamela Mann
Sr. Sales Director
Mary Kay Cosmetics
MTC-00028283
From: Suzanne Lavine
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft Settlement
Please adopt the agreed on the terms of the settlement. Please
stop wasting tax payer's money and everyone's efforts on something
that should be done and over with.
MTC-00028284
From: Klain, Ronald
To: ``microsoft.atr(a)usdoj.gov',Klain, Ronald
Date: 1/28/02 1:58pm
Subject: RE: Microsoft Settlement- Tunney Act Comments
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530
Re: Comments of AOL Time Warner
Dear Ms. Hesse:
In the attached ``PDF'' file, you will find the
Comments of my client, AOL Time Warner, on the proposed final
judgment in U.S. v. Microsoft. Please accept these for the Court's
consideration under the Tunney Act, 15 U.S.C. 16.
We will also be submitting these in ``hard copy'' form
as well. Please do not hesitate to call me at
202-;383-;5317 if you have any questions.
Sincerely,
Ronald A. Klain
O'Melveny & Myers
<>
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, UNITED STATES OF AMERICA Plaintiff, v. MICROSOFT
CORPORATION, Defendant Civil Action No. 98-;1232 (CKK)
STATE OF NEW YORK, et al., Plaintiffs, v. MICROSOFT CORPORATION,
Defendant Civil Action No. 98-;1233 (CKK)
COMMENTS OF AOL TIME WARNER ON THE PROPOSED FINAL JUDGMENT
TABLE OF CONTENTS
Page
INTRODUCTION--;1
THE COURT SHOULD USE THE REMEDIAL OBJECTIVES ESTABLISHED BY THE DC
CIRCUIT IN THIS CASE AS THE STANDARD FOR ASSESSING WHETHER THE PFJ
IS ``IN THE PUBLIC INTEREST.''--;4
II.
AS MICROSOFT STARTS TO IMPLEMENT MOST OF THE DECREE'S PROVISIONS,
THE COURT SHOULD CONSIDER HOW--;IF AT ALL--;OEMS ARE
RESPONDING--;9
There Is No Indication That Microsoft's Implementation Of Major
Aspects Of The PFJ Is Even Beginning To Promote Competition Or
Helping To Loosen Microsoft's Control Over The Desktop--;10
B.
The Provisions Of The PFJ Implemented By Microsoft Since July 11th
Are Not Showing Signs That They Will Work To Restore Competition In
The Browser Market--;14
III.
THE PFJ IS NOT IN THE PUBLIC INTEREST BECAUSE IT DOES NOT EVEN
ATTEMPT TO HALT MICROSOFT'S MOST INSIDIOUS PRACTICE: ITS ILLEGAL
BINDING AND BUNDLING OF MIDDLEWARE APPLICATIONS WITH THE WINDOWS
OS--;17
a.
The Court Of Appeals Explicitly Held That Code Commingling--;A
Form Of Tying Unaddressed By The PFJ--; Violates Section 2 Of
The Sherman Act--;19
g.
Microsoft Uses A Variety Of Other Tying Practices To Maintain Its
Operating System Monopoly; If The Monopoly Is To Be
``Terminated,'' Such Contractual Tying Must Be
Prohibited--;24
By Allowing Microsoft To Continue To Tie Its Middleware Applications
To Windows, Microsoft Retains One Of The Most Valuable
``Fruits'' Of Its Illegal Acts--;31
THE PROPOSED FINAL JUDGMENT FURTHER FAILS THE PUBLIC INTEREST TEST,
BECAUSE IT DOES NOT ACHIEVE EVEN THE LIMITED OBJECTIVES THAT IT
HOLDS OUT AS ITS AIMS--;33
A
Tile PFJ Allows Microsoft To Continue Engaging In Discriminatory And
Restrictive Licensing Agreements To Curtail The Use Of Rival
Middleware Products--;34
B
The PFJ Requires Microsoft To Disclose APIs Only In Certain, Narrow
Circumstances--;39
C
[[Page 28213]]
The PFJ Does Not Ban Many Forms Of Retaliation By Microsoft
Against OEMs--;42
D
The PFJ Does Nothing To Remedy Microsoft's Illegal Campaign To
Eliminate Java--;45
E
The PFJ Includes A ``Gerrymandered'' Definition Of
Middleware--;47
F.
The PFJ Lacks A Meaningful Enforcement Mechanism--;50
THE CIRCUMSTANCES OF THIS CASE STRONGLY MILITATE IN FAVOR OF
GATHERING EVIDENCE AND TESTIMONY--; EITHER IN A HEARING, OR
THROUGH THE USE OF THE RECORD FROM THE REMEDIAL PROCEEDING--;TO
DETERMINE IF THE PFJ MEETS THE PUBLIC INTEREST TEST--;53
A.
The Complexity And Significance Of This Case--;And The
Inadequacy Of The CIS--;All Militate In Favor Of A Heating On
The PFJ--;53
The Court Should Conduct A Proceeding--;Taking Evidence And
Heating Testimony, If Necessary- To Determine How The PFJ's
Provisions Have Functioned Since Some Were Put In Place In
2001--;56
In Making Its ``Public Interest'' Determination, This
Court Should Take Into Account The Evidence That Will Be Adduced In
The Upcoming Remedial Proceeding--;58
CONCLUSION--;61
COMMENTS OF AOL TIME WARNER ON THE PROPOSED FINAL JUDGMENT
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties
Act, 15 U.S.C. §;16, AOL Time Warner respectfully
submits the following comments on the Proposed Final Judgment
(``PFJ'') in the above-referenced matter.
INTRODUCTION
The Proposed Final Judgment sets forth a decree that is too
limited in its objectives and too flawed in its execution to meet
the Tunney Act's ``public interest'' test. It allows
Microsoft to continue to bind and bundle its middleware applications
with its Windows Operating System (``OS'')--;even
though tile Court of Appeals found Microsoft's actions in this
regard to be illegal. And its patchwork of constraints on
Microsoft's conduct is so loophole-ridden and exception-laden as to
render its provisions ineffective. As a result, the PFJ is
inadequate to promote competition and protect consumers, and the
Court should refuse to find that its entry would be ``in the
public interest.'' 15 U.S.C. * 16(e).
The PFJ comes before the Court in an unprecedented posture for a
Tunney Act proceeding. This proposed settlement was
reached--;not as the case was being filed, nor as it was being
tried, nor even as it was being appealed--;but rather, after the
Court of Appeals for the District of Columbia Circuit unanimously
affirmed a finding of illegal monopoly maintenance by Microsoft.
Such circumstances surely require a more rigorous application of the
``public interest'' standard than a case is settled before
the first interrogatory is even served--;the usual situation
when a Tunney Act review is conducted. Helpfully, a readily
available and judicially administrable measure of the ``public
interest'' is available for use in this special circumstance:
the four-part test for ``a remedies decree'' established
by the DC Circuit in this very litigation. United States v.
Microsoft, 253 F.3d 34, 103 (DC Cir. 2001). Applying this standard,
we believe that the Court should find the PFJ to be in the
``public interest'' only if it (1) ``unfetter[s] a
market from anticompetitive conduct''; (2) ``terminate[s]
the illegal monopoly''; (3) ``den[ies] to the defendant
the fruits of its statutory violation''; and (4)
``ensure[s] that there remain no practices likely to result in
monopolization in the future.'' Id. (internal quotations
omitted). We believe that there are at least three reasons why the
Court should conclude that the PFJ does not meet this test.
First, since July 11,2001 (for the browser) and December 16,
2001 (for other middleware), Microsoft has been implementing many of
the PFJ's remedial provisions. Thus, the Court need not speculate
about the impact these provisions would have on the industry if they
were put in place; rather, it can seek submissions and review
evidence on whether these critical provisions are beginning to work
as they are being implemented by Microsoft. We believe that any such
inquiry will reveal that the original equipment manufacturers
(``OEMs'') are not exercising the flexibility that the PFJ
ostensibly provides them, because the loophole-ridden PFJ gives too
few rights to the OEMs and does too little to protect the OEMs in
the exercise of those rights. As a result, there is little reason to
believe that the PFJ will prove effective in restoring competition,
terminating Microsoft's monopoly, or stripping Microsoft of the
fruits of its illegal acts.
How wide a ``gap'' between a hypothetical litigated
result and the proposed settlement is permissible in these
circumstances is a question that need not be answered here because
the PFJ falls so very short of meeting an), reasonable understanding
of the ``public interest,'' given its failure to address
many of Microsolf's illegal acts and its loophole-ridden provisions
in the areas that it does purport to cover.
Second, the PFJ fails to prohibit Microsoft's signature
anticompetitive conduct: the binding of its middleware applications
to its monopoly operating system, and its bundling of these products
to further entrench its OS monopoly. The factual questions that
surround these legal issues are quite complex, but here again, the
Court has a powerful tool to employ: the extensive factual findings
entered by the District Court. (1) These factual findings document
Microsoft's purposeful commingling of middleware application code
with the Windows OS to harm competition, as well as the contractual
bundling of those applications with the OS, to force OEMs to
distribute Microsoft's middleware, and to raise distribution hurdles
for middleware rivals. Given the PFJ's failure to ban practices that
the District Court and the Court of Appeals found to be at the
center of Microsoft's illegal maintenance of its OS monopoly, the
PFJ does not meet the ``public interest'' standard.
Third, even with regard to those limited objectives that the PFJ
does attempt to achieve--;i.e., the creation of ``OEM
flexibility'' to promote desktop competition--;the proposed
decree is so ridden with loopholes, exceptions and carve-outs as to
render it ineffective. These deficiencies are highlighted when the
PFJ is compared to previous remedial plans considered in this case,
including Judge Jackson's interim conduct remedies and the mediation
proposal offered by Judge Richard Posner (which Microsoft apparently
agreed to even before it had been found liable for antitrust
violations).
Finally, we believe the Court will find the remedial proposal of
the litigating state attorneys general (``Litigating
States'' Remedial Proposal'' or
``LSRP'')--;and the Court's consideration of that
proposal--;to be useful in its review of the PFJ. Most
immediately, the LSRP provides a benchmark as to what one group of
antitrust enforcers believes to be compelled by the ``public
interest'' in order to achieve the case's remedial objectives.
Moreover, the LSRP provides a helpful point of comparison for some
specific aspects of the PFJ--;i.e., a way to illustrate why
particular PFJ provisions are ineffective, by comparison.
These factual findings were affirmed on appeal. See Microsoft,
253 F.3d at 51-;78. In addition, the Court recently held that
the factual findings of the District Court ``in support of the
liability findings'' should be considered
``undisputed'' for the purpose of this proceeding. (See
Transcript of January 7, 2002, at 31.) And third, the Court's
consideration of the LSRP will adduce testimony and other evidence
that should be weighed in determining whether the PFJ should be
approved. Taken as a whole, a comparison of the PFJ with the
Litigating States'' Remedial Proposal shows why the latter, and
not the former, faithfully meets the remedial objectives set forth
by the DC Circuit and serves the ``public interest'' as
expressed in the nation's antitrust laws.
I. THE COURT SHOULD USE THE REMEDIAL OBJECTIVES ESTABLISHED BY
THE DC CIRCUIT IN THIS CASE AS THE STANDARD FOR ASSESSING WHETHER
THE PFJ IS ``IN THE PUBLIC INTEREST.''
Passed by Congress in 1974, the Antitrust Procedures and
Penalties Act, commonly known as the ``Tunney Act,''
provides that a proposed consent decree may be entered in an
antitrust case only if the district court determines that such entry
is ``in the public interest.'' See 15 U.S.C. *16(e). Given
that the Court will receive numerous submissions on this point, we
do not provide here a recitation of the Tunney Act's provisions, or
an extensive analysis of the standard of review under the Act.
Instead, we focus on just one, overriding ``procedural''
question: How should the Court measure ``the public
interest'' in this unique case? For reasons we will explain
below, we believe that the measure of the ``public
interest'' to be applied in reviewing the PFJ can be found in
the remedial objectives set forth by the DC Circuit in its
consideration of this litigation. See Microsoft, 253 F.3d at 103.
First, while the Tunney Act itself does not define ``public
interest,'' the case law makes
[[Page 28214]]
clear that the Court must begin its analysis ``by defining the
public interest'' in accordance with the basic purpose of the
antitrust laws, which is to'' ``preserv[e] free and
unfettered competition as the rule of trade.'' United States v.
American Tel. & Tel. Co., 552 F. Supp. 131,149 (D.DC 1982)
(quoting Northern Pacific Ry. Co. v. United States, 356 U.S. 1
(1958)). As a general rule, a court has discretion to reject a
proposed consent decree that is ineffective because it fails to
address or resolve the core competitive problems identified in the
Department of Justice's complaint. United States v. Microsoft Corp.,
56 F.3d 1448, 1457-;62 (DC Cir. 1995). As this Court stated in
United States v. Thomson Corp., 949 F. Supp. 907, 913 (D.DC 1996),
the court has a responsibility ``to compare the complaint filed
by the government with the proposed consent decree and determine
whether the remedies negotiated between the parties and proposed by
the Justice Department clearly and effectively address the
anticompetitive harms initially identified.'' A court should
``hesitate'' in the face of specific objections from
directly affected third parties before concluding that a proposed
final judgment is in the public interest. United States v.
Microsoft, 56 F.3d at 1462. And it ``should pay ``special
attention'' to the clarity of the proposed consent decree and
to the adequacy of its compliance mechanisms in order to assure that
the decree is sufficiently precise and the compliance mechanisms
sufficiently effective to enable the court to manage the
implementation of the consent decree and resolve any subsequent
disputes.'' Thomson Corp., 949 F. Supp. at 914 (citing United
States v. Microsoft, 56 F.3d at 1461-;62).
In the context of this proceeding, tremendous guidance as to the
content of the public interest test can come from the earlier
decision of the Court of Appeals in this case. In that decision, the
DC Circuit wrote:
[A] remedies decree in an antitrust case must seek to
``unfetter a market from anticompetitive conduct,'' to
``terminate the illegal monopoly, deny to the defendant the
fruits of its statutory violation, and ensure that there remain no
practices likely to result in monopolization in the future.''
Microsoft, 253 F.3d at 103 (quoting Ford Motor Co. v. United States,
405 U.S. 562, 577 (1972) and United States v. United Shoe Mach.
Corp., 391 U.S. 244, 250 (1968)). These words, in our view, form the
essence of the public interest test to be applied by the Court in
this Tunney Act proceeding.
First, on its face, this passage speaks of the object of a
``remedies decree in an antitrust case,'' without
differentiating between a decree that is achieved through
negotiation and one achieved through litigation. Thus, the Court of
Appeals'' ruling would appear to be directly controlling here,
insofar as it states the measure of adequacy for any remedial
decree, however achieved. There is no apparent reason why the
``remedies decree'' negotiated by the Department of
Justice with Microsoft should not have to meet the standard of
adequacy generally set forth by the Court of Appeals in its
decision.-'' This is particularly true given that the passage
merely ``defin[es] the public interest in accordance with the
antitrust laws.'' Accord American Tel. & Tel. Co., 552 F.
Supp. at 149.\3\
---------------------------------------------------------------------------
\3\This approach generally comports with other Tunney Act
cases, which conclude that an antitrust remedy, including a consent
decree, must'' ``effectively pry open to competition a
market that has been closed by defendants'' illegal
restraints.'' Id. at 150 (quoting International Salt Co. v.
United States, 332 U.S. 392, 401 (1947); see also 2 P. Areeda &
D. Turner, Antitrust Laws * 327 (1978)). A decree ``must
``break up or render impotent the monopoly power found to be in
violation of the Act,'' that is, it must leave the defendant
without the ability to resume the actions which constituted the
antitrust violation in the first place.''
American Tel. & Tel., 552 F. Supp. at 150 (quoting United
States v. Grinnell Corp., 384 U.S. 563,577 (1966)). ``It must
also effectively foreclose the possibility that antitrust violations
will occur or recur.'' Id. As the Supreme Court noted in
International Salt Co., 332 U.S. at 400:
[I]t is not necessary that all of the untraveled roads to
[anticompetitive conduct] be left open and that only the worn one be
closed. The usual ways to the prohibited goals may be blocked
against the proven transgressor.
Additionally, ``antitrust violations should be remedied
``with as little injury as possible to the interest of the
general public'' and to relevant private interests.'' /d.
(quoting United States v. American Tobacco Co., 221 U.S. 106, I85
(191 I)).
While the Department of Justice urges the Court to adopt a much
more lax review, even the government acknowledges that the Court's
``review of the decree is informed not merely by the
allegations contained in the Complaint, but also by the extensive
factual and legal record resulting from the district and appellate
court proceedings.'' (See Competitive Impact Statement
(``CIS'') at 68 (November 15, 2001).)
It was precisely the lack of a judicial finding of liability
that caused Chief Justice Rehnquist to question the
constitutionality of the Tunney Act. See Maryland v. United States,
460 U.S. 1001, 1004 (1982) (Rehnquist, J., dissenting). This
argument does not apply in the present case where there has been
both a judicial finding of liability (at trial and affirmed on
appeal), and there is a standard for review established by an
appellate court.
---------------------------------------------------------------------------
This is not to say that the Court should reject the PFJ if it
finds only that it differs in some respects from the remedy that the
Court would impose at the end of litigation. For while the public is
entitled to a very robust remedy here, especially given the fact
that this case has been litigated through trial and affirmed on
appeal with judgments against Microsolf, a settlement clearly does
not have to match precisely the outcome that would have been
achieved in litigation to be deemed acceptable under the tunney
Act's public interest test.
Second, the four-part test established by the DC Circuit here
would give the Court a clear and manageable standard on which to
evaluate the proposed decree's adequacy) Use of the DC Circuit's
formulation thus avoids one of the principal bases of controversy
and difficulty in Tunney Act reviews -i.e., the lack of a judicially
manageable standard for assessing the public interest and the
consequent risk that judges will inappropriately use standardless
judgment to review an exercise of prosecutorial discretion.\5\ Thus,
unlike in other Tunney Act cases, where a court lacks an appropriate
benchmark on which to measure the purported benefits of the
settlement (and thus must be careful not to impose its judgment for
that of the Justice Department), here, there is a clear benchmark
for the Court to use: the standard set by the Court of Appeals with
regard to a ``remedies decree.''
Moreover, to the extent that insisting that the PFJ meet the
standard set by the Court of Appeals would result in a more exacting
review than the review imposed in other Tunney Act proceedings, that
would be appropriate in this circumstance. For while the
overwhelming majority of decrees reviewed under the Tunney Act occur
in a pre-trial where the court lacks a judicial finding of
illegality against which to measure the efficacy of the proposed
settlement--;this proposed settlement was reached after an
appellate affirmance of liability. Because the public has invested
its resources and time, and taken the risk to win a judgment of
liability and defend that judgment on appeal, it has a right to
expect a more rigorous decree that meets a higher standard of
review. Under these circumstances, the Court's review under the
Tunney Act should not be deferential 1o the Justice Department;
instead, the Court should apply the Court of Appeals'' four-
part test and determine if the PFJ meets that test.
As explained in more detail below, the PFJ fails to meet the DC
Circuit's four-part test, because contrary to the claims of the
Department of Justice, it will neither ``provide a prompt,
certain and effective remedy for consumers,'' nor
``restore competitive conditions to the market.'' (See CIS
at 2.) Specifically, it does not ``unfetter [the] market from
anticompetitive conduct,'' because it does not even try to stop
Microsoft's illegal binding and bundling practices--;or
effectively limit Microsoft's ability to coerce OEM behavior to its
liking. It does not ``terminate the illegal monopoly''
because it does not effectively promote rival middleware, and
because its provisions are so laden with loopholes, exceptions and
carve-outs. It does not ``deny to the defendant the fruits of
its statutory violation,'' because it allows Microsoft to
continue to leverage its OS monopoly to gain market share in other
markets.\6\ And it does not ``ensure that there remain no
practices likely to result in monopolization in the future,''
because it leaves Microsoft free to exploit the OS monopoly to gain
don-finance in critical new markets. Failing to address the core
anticompetitive wrongs that were found at trial and upheld on appeal
against Microsoft, and failing to meet the four-part remedial test
established by the DC Circuit, the PFJ is manifestly contrary to the
public interest and should be rejected.
---------------------------------------------------------------------------
\6\Indeed, Microsoft has actually seen its share of the
browser market grow since being found liable for illegal monopoly
maintenance. For example, Microsoft's share of the work browser
market increased from 69.3 percent in April 2000 (when Judge Jackson
issued his finding of liability) to 79.5 percent in November 2001.
Over the same period, Microsoft's share of the home browser market
increased from 75.7 percent to 81.8 percent. See Browser Trended
Reach Report, Jupiter Media Metrix, January 2002.
---------------------------------------------------------------------------
II. AS MICROSOFT STARTS TO IMPLEMENT MOST OF THE DECREE'S
PROVISIONS, THE COURT SHOULD CONSIDER HOW--;IF AT ALL--;OEMS
ARE RESPONDING.
[[Page 28215]]
As noted above, the question before the Court is whether the PFJ
is ``in the public interest.'' 15 U.S.C.
*sect;16(e). In making that determination, the statute
indicates that the Court may want to consider, inter alia: (1)
``the competitive impact'' of the PFJ, (2) whether it
results in the ``termination of alleged violations,'' and
(3) ``the impact of [the PFJ] upon the public generally and
individuals alleging specific injury.'' Id.
Fortunately, contrary to most other courts conducting Tunney Act
reviews, this Court need not struggle with evaluating the
``competitive impact'' of the PFJ in a factual vacuum
because Microsoft has been, according to its own statements,
implementing some provisions found in the PFJ since last
Jul)'', and the bulk of its provisions since December. That
means the Court need not base its ``public interest''
judgment on abstract legal and economic analyses only; instead, the
Court's analysis can (at least in part) be shaped by a consideration
of how Microsoft is beginning to implement parts of the PFJ, and how
the PFJ's provisions are starting to work in practice.\7\ We believe
that such a practical review will demonstrate that the portions of
the PFJ in question show little prospect--;if any-that they will
``unfetter the market,'', ``terminate the
monopoly,'' or ``den),'' to Microsoft ``the
fruits of its violation.''
---------------------------------------------------------------------------
\7\If the Court finds that the submissions made to date
are inadequate to assess this question, it can, of course, under the
Tunney Act, take whatever testimony or evidence is needed to make
such a determination. See 15 U.S.C. *sect;16(f); Section V.B,
infra.
---------------------------------------------------------------------------
A. There Is No Indication That Microsoft's Implementation Of
Major Aspects Of The PFJ Is Even Beginning To Promote Competition Or
Helping To Loosen Microsoft's Control Over The Desktop. In the joint
stipulation filed with the Court on November 6, 2001, Microsoft
stated that it would ``begin complying with the [PFJ] as [if]
it was in full force and effect starting on December 16, 2001
.'' (Stipulation and Revised Proposed Final Judgment at 2
(November 6,2001).) While provisions with specific timetables were
exempted from this pledge--;resulting in an excessive delay for
some of the PFJ's competitive protections--; many of the PFJ's
remedial provisions were covered by it. Thus, with regard to many
provisions of the PFJ, the proposed decree has been ``in
effect'' since mid-December.\8\
---------------------------------------------------------------------------
\8\Some examples of PFJ provisions Microsoft has
ostensibly been complying with since December 16, 2001, include:
Section III.A (anti-retaliation); Section III.B (uniform licensing);
Section III.C (OEM licenses); Section III.G (anticompetitive
agreements); and Section III.I (licensing of intellectual properly).
---------------------------------------------------------------------------
Microsoft's stipulation offers the Court a unique opportunity to
learn, not just how the PFJ would serve the public interest once
implemented, but instead, whether the PFJ provisions already in
effect are showing signs that they are likely to serve the public
interest. These provisions have now effectively been in place for 43
days--;and by the time of a likely hearing or other proceeding
to consider this question (presumably, in March or April), will have
been in effect for three to four months.
Microsoft may protest that a three- to four-month period in
which parts of the PFJ will have been applied is inadequate to test
those remedies. And that is doubtlessly true with regard to some
measures of the PFJ's effectiveness, such as whether Microsoft's
share of the OS market has shrunk from near absolute to anything
less. But there are other measures of the PFJ's effectiveness that
should be readily discernible even in this relatively short time.
Among the questions we believe that the court could determine,
by the time of a hearing in March or April, would be:
Have the OEMs exercised (or even attempted to exercise)--;in
any way beyond the prevailing industry practice prior to December
16th--;the flexibilities to remove/replace icons, start menu
entries, and default settings for Microsoft middleware products,
that are purportedly provided in Section III.C.1 of the PFJ? If not,
why not?
Are non-Microsoft middleware products gaining .new distribution
via the OEMs as a result of the provisions of Sections III.A. and
III.C.2 of the PFJ, as implemented? If not, why not?
Are non-Microsoft middleware products, to a greater extent than
before implementation of the PFJ, attaining the benefits of an
``automatic launch,'' pursuant to the provisions of
Section III.C.3 of the PFJ? If not, why not?
* Is any OEM offering a dual-boot computer, as authorized by
Sections III.A.2 and III.C.4 of the PFJ? If not, why not?
* Are there new IAP offerings being made at the conclusion of PC
boot sequences, pursuant to Section III.C.5 of the PFJ? If not, why
not?
Has any ISV, IHV, LAP, ICP or OEM gained any additional Windows
licensing rights that it did not have prior to the implementation of
the PFJ, pursuant to Section III.I of the PFJ? If not, why not?
Has Microsoft terminated any payments to OEMs that were
anticompetitively advantaging Microsoft's products, and that are now
forbidden, pursuant to Sections III.A and III.B of the PFJ?
Based on our knowledge of industry developments, we believe that
the answer to each of these questions is ``no,'' with
perhaps some very rare and isolated exceptions.\9\ Thus, despite
Microsoft's proclaimed implementation of large portions of the PFJ,
there is scant evidence of OEMs even attempting, let alone
succeeding, to offer consumers new choices with respect to
middleware products. Even in a relatively short time frame of a few
months, one would expect to find numerous OEMs reaching agreements
to promote or carry multiple non- Microsoft products. But no such
evidence exists. No doubt, that is why countless industry observers
and analysts have concluded, after examining the PFJ, that
``It]he changes we will see are minute. Microsoft can control
its own destiny. It can do whatever it wants.''\10\
Presumably, it cannot be in ``the public interest'' to
settle a case after years and years of litigation--;including a
finding of liability for the government at trial, affirmed
unanimously on appeal by the Court of Appeals (See Microsoft, 253
F.3d at 46)--;for a remedial decree that effectuates only
``minute'' changes in the strategy the defendant was using
to illegally maintain its monopoly. And yet, that is precisely what
appears to be happening, as the effectiveness--;or lack thereof-
of parts of the PFJ are starting to be observed in application.
While we certainly agree with the Department of Justice that it will
only be ``over time'' that any remedy could ``help
lower the applications barrier to entry,'' (see CIS at 29),
that objective will never be achieved if the PFJ does not lead OEMs
to even begin to ``offer rival middleware to consumers and..,
feature that middleware in ways that increase the likelihood that
consumers will choose to use it.'' (Id.) That is: the pro-
competitive probative of nothing more than the compelling need for a
hearing so the Court can explore how, if at all, the PFJ journey of
a thousand miles can never be completed if--;as it appears to be
the case--;the PFJ does not create a market in which OEMs feel
free to take that all-important first step. To the extent that much
of the CIS suggests that the goal of the remedy is to create OEM
flexibility for its own sake--;i.e., to make sure that OEMs have
the right to choose non-Microsoft products, whether or not they
exercise that right--;it misses the mark. The goal of this
litigation is not to protect OEMs'' rights, but rather to
protect consumers'' rights to enjoy a free and competitive
market. In such a market, OEMs can be important surrogates for
consumers, but only if they actually offer competitive choices.
Likewise, to the extent that the other goal of the remedial
proceeding is to reduce the applications barrier to entry, that
objective is only achieved to the extent that the OEMs actually
distribute and promote non- Microsoft middleware--;it is not
advanced by the unexercised presence of theoretical OEM choice.
---------------------------------------------------------------------------
\9\Although Compaq and RealNetworks reached an agreement
in December 2001, whereby Compaq would place Real's player on its
personal computers, see RealNetworks Sets Deal With Compaq, The Los
Angeles Times, December 13, 2001, it is unclear, among other things,
what the terms of the agreement are, what impact it will have on
competition and consumer choice, and whether the agreement was
motivated, in whole or in part, by the purported
``flexibility'' of the proposed settlement. While the
Court should certainly give the Compaq agreement some consideration
in its public interest review, the agreement's mere existence is
already affecting the marketplace.
\10\See Jeff O'Heir, Analysis: MS & DOJ Reach
Agreement, P.C. Dealer, November 12, 2001 (quoting Roland Pinto);
see also Randy Barrett, MS-DOJ Pact Disappoints, Interactive Week,
Nov. 8, 2001 (quoting Roger Frizzell, Compaq Spokesman,
``Basically, we don't feel there's a big difference between
where we're standing today and where we were last week.''); Id.
(quoting Mike Griffin, ``We don't anticipate any changes at
all.''{time} .
---------------------------------------------------------------------------
Thus, the determination of whether the PFJ will be effective in
promoting its purported ends--;i.e., fostering OEMs in making
those choices and creating opportunities for competition--;need
not be left for some subsequent proceeding or for antitrust scholars
in future years. It can be ascertained now from the submissions that
the Court is receiving, or, if those submissions are inadequate, it
could be resolved by the Court
[[Page 28216]]
in a proceeding where evidence is taken and testimony is heard. See
Section V.B, infra. The manner in which Microsoft is already
implementing portions of the PFJ is among the most probative
considerations the Court can weigh in determining how--;it at
all--;the proposed settlement will promote competition in the
years to come.
B. The Provisions Of The PFJ Implemented By Microsoft Since July
11th Are Not Showing Signs That They Will Work To Restore
Competition In The Browser Market.
In addition to the general applicability of the PFJ's
provisions, several of its provisions have been in place--;as
they relate to the Internet browser--;since Microsoft took steps
to implement them after the Court of Appeals'' decision last
June. As with the more general PFJ provisions discussed above, the
Court should examine whether these browser- specific remedial
provisions--;which will have been in place for eight months by
mid-March--;have been effective to date. Again, we believe that
the evidence to date shows that the provisions are showing no sign
of effectuating change in the market; thus, the PFJ--;which
(with regard to browsers) does little more than codify these
unilateral Microsoft actions--; does not meet the ``public
interest'' standard.
On July 11, 2001, in response to the decision of the Court of
Appeals, Microsoft announced a program of ``greater OEM
flexibility for Windows.'' See Press Release, Microsoft
Corporation, Microsoft Announces Greater OEM Flexibility For
Windows, July 11, 2001. Specifically, Microsoft announced that it
would amend its OEM license agreements to provide that:
PC manufacturers will have the option to remove the Start menu
entries and icons that provide end users with access to the Internet
Explorer components of the operating system. Microsoft will include
Internet Explorer in the Add/Remove programs feature in Windows XP.
PC manufacturers will have the option to remove the Start menu
entries and icons that provide end users with access to Internet
Explorer from previous versions of Windows, including Windows 98,
Windows 2000 and Windows Me .... Consumers will be able to use the
Add-Remove Programs feature in Windows XP to remove end-user access
to the Internet Explorer components of the operating system ....
d. These provisions mirror the browser-related provisions found
in Sections III.C.1 and III.H.1 of the PFJ. Indeed, they comprise
almost the entirety of all browser-related remedial provisions found
in the PFJ.
Thus, the question of whether the PFJ fulfills the Department of
Justice's promise of an effective remedy for ``restor[ing] the
competitive threat that middleware products posed prior to
Microsoft's unlawful undertakings,'' can easily be
assessed--;at least with regard to the browser threat, which was
such an extensive part of the Court of Appeals''
decision--;by seeing how effective these unilateral Microsoft
actions, taken in July of 2001, have been to date. And unlike the
provisions discussed above, which were put in place only in
December, it cannot be argued that these browser-related provisions
have not yet been tested in the marketplace; rather, the{time} ,
were in place for the launch of Windows XP, which Bill Gates
recently dubbed the ``best-selling release of Windows ever, and
one that is creating great opportunities for PC manufacturers and
our other partners in the industry.''\11\ In the
simplest terms, as we note above, these ``remedies'' will
have been in place for eight months by mid-March of 2002.\12\
---------------------------------------------------------------------------
\11\See GM Plans White-Collar Cuts, Financial Briefs, The
Washington Post, January 9, 2002, at E02.
\12\Given that the length of the PFJ is only 60 months,
see Section V.A of the PFJ, an assessment of the effectiveness of a
provision after eight months would be highly significant.
---------------------------------------------------------------------------
We believe that the initial evidence shows that these provisions
are completely ineffective. We are unaware of a single OEM that has
used the ``flexibility'' provided to it by Microsoft to
remove Internet Explorer from the Start menu, or from any of its
multiple promotional placements on the PC desktop. Nor are we aware
of any OEM that has elected to use any competitor to Internet
Explorer as a default browser, or to promote alternative browsers to
Internet Explorer in any way.
Moreover, there is no indication--;more than six months
after Microsoft's July 11th announcement and four months after the
first shipments of Windows XP--;that Internet Explorer's
commanding market share in the browser market has fallen in any
measurable way. If the provisions of the PFJ are strong enough to
``restore'' competition to the marketplace, which DOJ
claims they are (see CIS at 3 (``[t]he requirements and
prohibitions [of the PFJ] will ... restore the competitive threat
that middleware products posed prior to Microsoft's unlawful
undertakings'')), one would expect to see that the market
shares of Microsoft's browser competitors have increased during this
time frame. There is simply no evidence of that. Not only is there a
dearth of evidence suggesting that the PFJ's provisions are going to
restore competition to the level enjoyed by Microsoft's rivals prior
to its illegal conduct, but there is no evidence to suggest they are
affecting the market at all.
A remedial provision that has no market impact cannot be said to
be in the ``public interest,'' especially in a case like
this where the damage from Microsoft's illegal campaign to eliminate
rival middleware has already been done. In other words, because
Microsoft has illegally driven down the market shares of its rival
middleware developers, restoring competition to the marketplace
requires much more than simply eliminating the illegal practices:
only if the status quo ante is restored would OEM freedom of choice
be meaningful. And yet, the evidence suggests that the PFJ
provisions that relate to the browser will have no market impact,
given the practical experience with highly similar proposals put in
place by Microsoft last July. This is important evidence for the
Court to consider when reviewing the PFJ.
III. THE PFJ IS NOT IN THE PUBLIC INTEREST BECAUSE IT DOES NOT
EVEN ATTEMPT TO HALT MICROSOFT'S MOST INSIDIOUS PRACTICE: ITS
ILLEGAL BINDING AND BUNDLING OF MIDDLEWARE APPLICATIONS WITH THE
WINDOWS OS.
In this submission--;and doubtlessly in the many others the
Court will receive - we identify a number of specific deficiencies
in the PFJ. See Section IV, infra and Attachment B. But one omission
stands out above all others: the failure of the PFJ to limit
Microsoft's ongoing and insidious efforts to maintain its monopoly-
and leverage and entrench that monopoly--;by tying its
middleware applications to the Windows OS. This conduct--;found
illegal by the District Court and upheld as illegal by the Court of
Appeals (see Microsoft, 253 F.3d at 67)--;is left unchecked by
the PFJ. By contrast, a remedy to address this practice appeared in
the interim conduct remedies offered by the District Court,\13\ as
well as the remedial proposal designed by Judge Richard Posner
(``Posner Proposal'').\14\ The practice is also addressed
extensively in the litigating states'' proposed remedy. By
failing to remedy one of Microsoft's ``signature''
anticompetitive acts, the PFJ--;even before reaching its many
other defects--;falls far short of the four-part remedial
standard set by the Court of Appeals, and by the same token, fails
to meet the public interest test established by the Tunney Act.
---------------------------------------------------------------------------
\13\We use the interim conduct remedies as a point of
reference--;notwithstanding the fact that they were vacated on
appeal--;because the Department of Justice stated publicly that
it would ``seek an order that is modeled after the interim
conduct-related provisions of the Final Judgment previously ordered
in the case.'' See Press Release, Department of Justice,
Justice Department Informs Microsoft of Plans for Further
Proceedings in the District Court, September 6, 2001; see also, John
Hendren, New Judge Puts Heat on Feds, Microsoft: Quick Settlement
Urged to Aid Ailing Economy, The Seattle Times, September 29, 2001
(``Government lawyers have said they intended to model their
proposed remedy on an interim conduct order by the previous district
judge who oversaw the case, Judge Thomas Penfield Jackson.'').
\14\A draft of the mediation proposal, Mediator's Draft
#18 (April 5, 2000) (referred to herein as the ``Posner
Proposal''), is available at www.ccianet.org/legal/ms/
draft18.php3. At the time, several news reports indicated that
Microsoft had agreed to the provisions in the Posner Proposal. See,
e.g.. Joe Wilcox, Hard to Gauge Extent. Effectiveness of Microsoft
Concessions, CNET News.com, March 30, 2000 (the ``software
giant has tentatively agreed to sweeping restrictions on how it does
business with its partners'').
---------------------------------------------------------------------------
In explaining why it did not seek to limit Microsoft's tying of
middleware applications to Windows in the PFJ, the Justice
Department has suggested that there was no basis for such a remedy
because of the Court of Appeals'' reversal of the District
Court's finding of liability under Section 1 of the Sherman Act, and
the appellate court's direction that the remedy here should
``focus[] on the specific practices that the court had ruled
unlawful.''\15\ This analysis fundamentally misapprehends the
[[Page 28217]]
implications of the Court of Appeals'' ruling: contrary to
DOJ's view, the Court of Appeals did not suggest that an anti- tying
remedy was inappropriate or unnecessary here; indeed, much of the
Court of Appeals'' decision is a strong declaration of how
Microsoft's various forms of tying violated Section 2 of the Sherman
Act. See, e.g., Microsoft 253 F.3d at 65-;67. A remedy that
truly ``focused on the specific practices that the court had
ruled unlawful'' would have to address the tying practices that
the Court of Appeals ``ruled unlawful''; the PFJ does not.
---------------------------------------------------------------------------
\15\See Testimony of Assistant Attorney General Charles
James, Senate Judiciary Committee (December 12, 2001); see also
Q&A.'' Charles James Defends The Deal, Business Week, Nov.
19, 2001 (``People who suggest that [the decree should have
ordered Microsoft to sell a stripped-down version of Windows] are
not recognizing that the tying claim was eliminated from the case by
the appeals court.'').
---------------------------------------------------------------------------
Because Microsoft's various forms of middleware applications
tying are critical tactics that it uses to maintain its illegal
monopoly, they must be ended if the remedy is to ``terminate
the monopoly.''\16\ (See Microsoft's Tying Strategies To
Maintain Monopoly Power In Its Operating System (``Mathewson
& Winter Report''), attached hereto as Attachment A.)
Furthermore, the opportunity to gain market share as a result of
such tying is one of the principal fruits of Microsoft's illegality,
and should therefore be denied to it.\17\ As a result, the failure
of the PFJ to address Microsoft's tying is a fundamental
flax,,'' that alone merits rejection of the proposed decree.
---------------------------------------------------------------------------
\16\See Microsoft, 253 F.3d at 46; 15 U.S.C. * 16(e) (in
a Tunney Act proceeding, the court is authorized to consider whether
the proposed settlement results in the ``termination of alleged
violations''); see also Grinnell Corp., 384 U.S. at 577 (a
decree must ``break up or render impotent the monopoly power
found to be in violation of the Act'').
\17\See Microsoft, 253 F.3d at 51, 103.
---------------------------------------------------------------------------
Importantly, we note that the legal and economic arguments
presented below are reinforced by the empirical observations set
forth in Section II, supra. That is, the legal and economic analysis
below which suggests that a remedy without a ban on tying will be
ineffective in theory, is supported by the fact that such a
remedy--;imposed in part since Jul{time} '', and more
substantially since December--;is proving to be ineffective in
practice.
A. The Court Of Appeals Explicitly Held That Code
Commingling--;A Form Of Tying Unaddressed By The
PFJ--;Violates Section 2 Of The Sherman Act.
In affirming the District Court's findings of fact concerning
Microsoft's practice of commingling the code for its own middleware
products with the code for the Windows OS, the Court of Appeals made
clear that such commingling was an unlawful act in violation of
Section 2 of the Sherman Act. See Microsoft, 253 F.3d at
65-;67. Specifically, the Court of Appeals concluded that
Microsoft's ``commingling has an anticompetitive effect * . .
[and] constitute[s] exclusionary conduct, in violation of $
2.'' Microsoft, 253 F.3d at 66- 67 (emphasis added)*\18\
According to the appeals court, Microsoft's ``commingling
deters OEMs from pre-installing rival browsers, thereby reducing the
rivals'' usage share and, hence, developers'' interest in
rivals'' APIs as an alternative to the API set exposed by
Microsoft's operating system.'' Id. at 66. Moreover, the Court
of Appeals affirmed the District Court's finding that such
commingling was done, deliberately and intentionally, to advance
Microsoft's anticompetitive aims. Id.
---------------------------------------------------------------------------
\18\In its Conclusions of Law, the District Court broadly
condemned Microsoft's decision to bind ``Internet Explorer to
Windows with.., technological shackles.'' United States v.
Microsoft, 87 F. Supp. 2d at 30, 39 (D.DC 2000) (``Conclusions
of Law''). Specifically, the District Court denounced
Microsoft's decision to bind Internet Explorer to the Windows OS
``by placing code specific to Web browsing in the same files as
code that provided operating system functions.'' United States
v. Microsoft, 84 F. Supp. 2d at 50, 161 (D.DC 1999)
(``Findings of Fact'')*
---------------------------------------------------------------------------
Notwithstanding these clear declarations by the Court of
Appeals, this practice is not prohibited by the PFJ. Such a
prohibition was omitted despite the finding that it is
illegal--;and despite the Justice Department's recognition that
the first remedial objective in a decree should be to ``end the
unlawful conduct.'' (See CIS at 24.) Thus, Microsoft remains
free to bind its middleware applications, including the browser, to
its Windows OS\19\--;making it impossible for an OEM, or
a consumer, to remove that application from a PC without doing
damage to that PC's operating system.
---------------------------------------------------------------------------
\19\The danger of according Microsoft this power is
exacerbated--;and reinforced--;by the PFJ's definition of
the Windows Operating System Product (``Definition U''),
which states that the software code that comprises the Windows
Operating System Product ``shall be determined by Microsoft in
its sole discretion.'' Thus, Microsoft can, over time, render
all the protections for middleware meaningless, by binding and
commingling code, and redefining the OS to include the bound/
commingled applications.
---------------------------------------------------------------------------
Microsoft's suggestion that competition is adequately served by
allowing OEMs to pre-install rival middleware and to remove end-user
access to Microsoft middleware--;instead of banning
commingling--;is incorrect for several reasons. First, as the
District Court found and the Court of Appeals affirmed, commingling
of code strongly deters - and may even prevent--;OEMs and
consumers from using middleware products offered by Microsoft's
competitors (because the Microsoft product is inextricably
intertwined with the OS and is thus both easier to use and harder to
remove).\20\ Why would an OEM include a competing middleware product
that will cost money to install and use up valuable space on the
hard drive when Microsoft's product is already there and has been so
tightly knit with the OS that it cannot be removed without doing
damage to the OS? As the Court of Appeals noted (citing the District
Court's holding), Microsoft's commingling has both prevented OEMs
from pre-installing other browsers and deterred consumers from using
them. In particular, having the IE software code as an irremovable
part of Windows meant that pre-installing a second browser would
``increase an OEM's product testing costs,'' because an
OEM must test and train its support staff to answer calls related to
every software product preinstalled on the machine; moreover, pre-
installing a browser in addition to IE would to many OEMs be
``a questionable use of the scarce and valuable space on a PC's
hard drive.''
\20\20 See, e.g.. Findings of Fact, 84 F. Supp. 2d at
49-;50, 159 (``Microsoft knows that the inability
to remove Internet Explorer made OEMs less disposed to pre-install
Navigator .... Pre-installing more than one product in a given
category.., can significantly increase an OEM's support costs, for
the redundancy can lead to confusion among novice users. In
addition, pre-installing a second product in a given software
category can increase an OEM's product testing costs. Finally, many
OEMs see pre-installing a second application in a given software
category as a questionable use of the scarce and valuable space on a
PC's hard drive.'').
---------------------------------------------------------------------------
Microsoft, 253 F.3d at 64 (citations omitted).
As long as commingling is permitted, OEMs and other third party
licensees will have no incentive to take advantage of the limited
freedom provided by the PFJ and will continue to use Microsoft's
middleware products at the expense of its competitors. As a result,
commingling reduces Microsoft's distribution costs for its
middleware applications to zero. It also raises the distribution
costs of rival middleware application makers--;who not only must
pay for something that Microsoft gets for free (i.e., distribution
via OEMs), but must also pay an added bounty to persuade OEMs to
install their applications as the second such application on a PC.
This, of course, assumes that such an added payment strategy for
such middleware would even be plausible (which is highly doubtful,
except in rare cases) and would not be defeated by Microsoft, a
rival with roughly S39 billion in cash available to deter the
prospect of being outbid by other middleware developers for PC
access.
The other way in which code commingling illegally enhances the
position of Microsoft middleware is by encouraging applications
programmers to write their programs to Microsoft's products.
(Mathewson & Winter Report at 14-;16.) Third
party developers decide how to write their applications based upon
what APIs they believe will be available on the broadest number of
computers and will enable their products to function most smoothly.
See Microsoft, 253 F.3d at 55. Because the PFJ will allow Microsoft
to continue commingling its middleware and OS code, it essentially
guarantees that Microsoft's application programming interfaces
(``APIs'') are universally available in all Windows
environments (in other words, on virtually all PCs)--;and that
software developers who write their applications to Microsoft's APIs
can write directly to the OS. This is true regardless of whether or
not end-user access to the middleware product is visible. As a
result, third party software developers (whose business interests
are to develop successful applications, not to challenge Microsoft's
monopoly) will almost always write their programs to Microsoft
middleware.\21\ Thus, Microsoft's commingling practices only
exacerbate the ``applications barrier to entry'' that
already encourages developers to create software that runs on
Microsoft's dominant OS and interoperates with Microsoft's
middleware
[[Page 28218]]
products. (See Mathewson & Winter Report at 16.)
---------------------------------------------------------------------------
\21\For example, a developer that creates music search
software is far more likely to develop a program that runs on
Windows Media Player than RealPlayer, knowing that the new program
would interoperate more readily with the OS if it runs on
Microsoft's program and would have fewer glitches.
---------------------------------------------------------------------------
Thus, in the end, as both the Court of Appeals and the District
Court concluded here, commingling itself deters OEMs from installing
rival middleware. See Microsoft, 253 F.3d at 66; Findings of Fact,
84 F. Supp. 2d at 49-;50, 159. No doubt this is why
every other remedial plan contemplated in this litigation--;from
the Posner Proposal,\22\ to Judge Jackson's interim remedial
order,\23\ to the proposal set forth by the Litigating
States\24\--;has prominently included a ban on code
commingling (or, at the very least, a requirement that Microsoft
make available a non-commingled version of Windows). Yet, despite
that, despite the Court of Appeals'' holding, and despite the
District Court's factual findings, the PFJ fails to prohibit or
limit this practice in any manner whatsoever.
---------------------------------------------------------------------------
\22\See Posner Proposal * 3(9) (Microsoft is enjoined
from ``tying or combining any middleware product to or with a
Windows operating system unless Microsoft offers a version of that
operating system without such middleware product at a reduced price
that reasonably reflects the relative costs of the operating system
and the excluded middleware.'').
\23\See United States v. Microsoft, 97 F. Supp. 2d 59, 68
(D.DC 2000) (``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 .... ``).
\24\The Litigating States'' Remedial Proposal would
prevent Microsoft from unlawfully reducing the competitive threat
from non-Microsoft middleware products by commingling middleware and
operating system code. The Litigating States'' Remedial
Proposal would prohibit the practice of commingling altogether or,
alternatively, require Microsoft to offer, upon written request from
OEMs or other third part).'' licensees, its operating system on
an unbundled basis:
---------------------------------------------------------------------------
Microsoft has already demonstrated its willingness and ability
to fend off threats from competing middleware products by illegally
commingling code with the Windows OS.\25\ As currently drafted, the
PFJ gives the company a green light to continue this anticompetitive
and illegal practice. The public interest requires that Microsoft's
practice of tying its middleware and operating system, via code
commingling, be prohibited.
---------------------------------------------------------------------------
\25\Note that Microsoft's options for exploiting
technological means to advance its tying ends are not limited to
code commingling. Code commingling, of course, is an extreme version
of such tying, in that it prevents OEMs and consumers from removing
applications without threatening the integrity of the OS. Other
examples discussed during trial include deliberately harming the
interoperability of Netscape's Navigator browser, see, e.g.,
Findings of Fact, 84 F. Supp. 2d at 31, 84 (finding that
Microsoft executives explicitly offered preferred access to APIs to
Netscape as an inducement to them to not expose their own APIs); id.
at 33, 90-;91 (finding that when Netscape refused
this offer, Microsoft withheld necessary Windows APIs from I
Netscape, delaying Netscape's Windows 95 browser launch until after
the holiday selling season); id. at 50, 160 (``We
will bind the shell to the Internet Explorer, so that running any
other browser is a jolting experience.''); and working
aggressively to degrade the performance and desirability of Sun's
Java software, id. at 109-;110, 404-;406
(finding that Microsoft harmed development of Java class libraries
and cross-platform Java interfaces).
---------------------------------------------------------------------------
Microsoft shall not, in any Windows Operating System Product
(excluding Windows 98 and Windows 98 SE) it distributes beginning
six months after the date of entry of this Final Judgment, Bind any
Microsoft Middleware Products to the Windows Operating System unless
Microsoft also has available to license, upon the written request of
each Covered OEM licensee or Third-Party Licensee that so specifies,
and Microsoft supports both directly and indirectly, an otherwise
identical version of the Windows Operating System Product that omits
any combination of Microsoft Middleware Products as indicated by the
licensee.
(See Proposed Text 1 (hereinafter
``States'' Proposed Text''), attached as Exhibit A to
Litigating States'' Remedial Proposal (December 7, 2001).)
B. Microsoft Uses A Variety Of Other Tying Practices To Maintain
Its Operating System Monopoly; If The Monopoly Is To Be
``Terminated,'' Such Contractual Tying Must Be Prohibited.
The Justice Department's insistence that the remedy in this case
should not include a general tying prohibition because the
government abandoned its Section 1 tying claim is logically flawed.
Contrary to DOJ's assertions, as discussed at length above, the
ultimate remedy in this case must ``terminate''
Microsoft's illegally maintained monopoly- and that can only happen
if the remedy addresses those behaviors that anticompetitively
maintain the Windows monopoly.
The bundling, or contractual tying, of Microsoft's middleware
products to its Windows OS is clearly such an anticompetitive
behavior: it is the signature tactic used by Microsoft to maintain
its monopoly and fend off competitive challenges, and it has been
expressly found to be illegal by the Court of Appeals. See, e.g.,
Microsoft, 253 F.3d at 61 (the restriction in Microsoft's licensing
agreements that prevents OEMs from removing or uninstalling IE
``protects Microsoft's monopoly from the competition that
middleware might otherwise present. Therefore, we conclude that the
license restriction at issue is anticompetitive.'') (emphasis
added); see also Mathewson & Winter Report at
13-;33. Put another way, various tying
practices were found by the Court of Appeals to illegally reinforce
Microsoft's OS monopoly and thus must be banned in order to realize
the remedial mandate of the Court of Appeals and the public interest
objectives of the Tunney Act.
The anticompetitive nature of tying is apparent on its face: it
reduces competition and consumer choice, making it less likely for
Windows consumers to acquire and use non-Microsoft middleware
products for reasons unrelated to the merits of those products. See
Microsoft, 253 F.3d at 60 (upholding District Court's conclusion
that contractually restricting OEMs'' ability to remove IE
``prevented many OEMs from distributing browsers other than
IE''); see also Mathewson & Winter Report at * 23.
Microsoft only makes Windows available for license to OEMs in a
bundle that includes a number of its middleware applications (e.g.,
Internet Explorer, Windows Media Player, Windows Messenger, MSN).
Microsoft also contractually prohibits OEMs from removing its
applications from the bundled offering.
As explained in the attached economic report from Professors
Frank Mathewson and Ralph Winter, such tying is anticompetitive and
should fall under the purview of these remedy proceedings for four
principal reasons: (1) it reinforces Microsoft's monopoly by
increasing the applications barrier to entry against OS competitors;
(2) it reinforces Microsoft's monopoly by deterring direct
challenges to the OS itself as the platform of choice for software
developers; (3) it weakens the greatest current competitor to
Windows--;prior versions of Windows; and (4) Microsoft's more
recent practice of tying the Windows Media Player to the OS creates
a new variant of the applications barrier to entry problem for
potential OS rivals: a content-encoding barrier to entry. (See
Mathewson & Winter Report, passim.)
First, tying anticompetitively strengthens Microsoft's OS
monopoly by reinforcing the applications barrier to entry against OS
competitors. (Id. at ;14-;16.) The dominance
of the Windows standard in a wide range of applications, including a
few particularly important applications, hampers entry into the
operating system market because an entrant has to offer both a new
operating system and a full set of applications, or hope that
applications will quickly develop once the new operating system
becomes available. See Microsoft, 253 F.3d at 55 (applications
barrier to entry stems, in part, from the fact that ``most
developers prefer to write for operating systems that already have a
substantial consumer base''). This is referred to as the
applications barrier to entry, and the District Court found that it
served to protect Microsoft against an OS challenge from IBM in the
1990s. Id. (upholding District Court's finding that ``IBM's
difficulty in attracting a larger number of software developers to
write for its platform seriously impeded OS/2's success'').\26\
---------------------------------------------------------------------------
\26\See Findings of Fact, 84 F. Supp. 2d at 19-;22,
36-;44.
---------------------------------------------------------------------------
By engaging in tying to gain dominance in key applications
markets, Microsoft can turn the already-daunting applications
barrier to entry into a virtually insurmountable shield. As the
Court of Appeals explained, ``Microsoft's efforts to gain
market share in one market (browsers) served to meet the threat to
Microsoft's monopoly in another market (operating systems) by
keeping rival browsers from gaining the critical mass of users
necessary to attract developer attention away from Windows as the
platform for software development.'' Microsoft, 253 F.3d at 60.
If Microsoft controls the key applications, it can unilaterally
decide not to make those applications available for even the most-
promising rival operating systems. Microsoft's tying thus
anticompetitively advantages its position in the middleware
applications market and sustains its OS monopoly as well. (See
Mathewson & Winter
[[Page 28219]]
Report at 66.)\27\ Consider, for example, Microsoft
Office. At one point, companies such as Corel and Lotus provided the
most popular versions of these applications. At that time, to
compete with Microsoft's Windows, rival operating systems needed to
persuade Corel and Lotus to port their applications to those rival
systems. Now that Microsoft has successfully leveraged Windows to
obtain dominance in the Office suite of applications, however, rival
OS providers would have to persuade Microsoft to port Office to
rival systems.
---------------------------------------------------------------------------
\27\See Microsoft, 253 F.3d at 59-;60 (citing
District Court's finding that ``Microsoft's imposition of
[licensing] provisions (like man','' of Microsoft's other
actions at issue in this case) serves to reduce usage share of
Netscape's browser and, hence, protect Microsoft's operating system
monopoly'').
---------------------------------------------------------------------------
If Microsoft can gain dominance with key middleware applications
such as Office, MSN Messenger, and Windows Media Player, it can
ensure that rival operating systems cannot meet customers''
demands for the most popular applications. That is, when Microsoft's
browser, Microsoft's media player, and Microsoft's instant messenger
are dominant in those applications markets, Microsoft may choose not
to write its applications to interoperate with a potential rival
OS--;making it much more difficult for nascent operating systems
to compete with Windows.\28\ Thus, Microsoft's tying, over time,
takes today's very high ``applications barrier to entry,''
and raises it immeasurably higher. (See Mathewson & Winter
Report at 66.)
---------------------------------------------------------------------------
\28\This fear is not theoretical: the District Court
found that Microsoft made just such a threat to Apple, with regard
to Microsoft Office. See Findings of Fact, 84 F. Supp. 2d at
95-;97, 345-;356.
---------------------------------------------------------------------------
Second, bring reinforces Microsoft's monopoly by deterring
direct challenges to the OS itself as the platform of choice for
software developers. (Id. at 17-;19.) A clear
incentive for Microsoft to tie its Internet Explorer browser with
Windows was the threat that Netscape--;on its own, or combined
with Java software--;would eliminate Microsoft's network
advantages in the operating system by providing middleware that
would offer a competing platform for software developers. As the
District Court and Court of Appeals found, Netscape and Java were
particular threats to Microsoft's dominance in operating systems
because they potentially represented a platform/programming
environment in which software applications could be developed
without regard to the underlying operating system. See Microsoft,
253 F.3d at 74. With middleware, the success of a new operating
system no longer depended on the development of new code by every
application developer. (See Mathewson & Winter Report at
19.)
If rivals develop valuable, widely distributed middleware,
software vendors could very well begin to write most of their
applications directly to that middleware, and the applications
barrier to entry would disappear. By using anticompetitive tying to
dominate each promising field of middleware, Microsoft ensures that
software developers face a unified field of proprietary Microsoft OS
and middleware interfaces. (Id.) Thus, Microsoft's tying practices
serve, in this way too, to reinforce and entrench its illegal OS
monopoly.
Third, tying weakens the greatest current competitor to
Windows--;prior versions of Windows. (Id. at
27-;30.)\29\ Existing versions of Windows
provide competitive constraints on Microsoft for a simple reason: if
new versions of Windows are insufficiently innovative or too
expensive, consumers will choose to retain their older versions of
the product. Through tying, however, Microsoft weakens this source
of competition in two ways. First, new versions of Windows are
marketed as much for new applications as for new OS features.
Windows XP, for example, is being marketed in part for its inclusion
of new applications, such as Windows Media Player 8.0--;not just
based on innovations and improvements to the OS itself. Second,
middleware applications such as Internet Explorer, Windows Media
Player (with the attendant Microsoft Digital Rights Management), and
MSN allow Microsoft to track consumer usage. Microsoft's binding of
these products to Windows ``thus creates a total product that
lends itself to usage and leasing fees. By gradually reducing the
price of Windows and increasing the usage fees on its tied
applications, Microsoft can shift to a usage or leasing revenue
model, rather than a revenue model based on sales. This eliminates
the competitive threat front previous versions of
Windows\30\* (in addition to providing Microsoft with the
fruits of its illegal behavior, as discussed in Section III.C,
below). (See id. at 28.)
---------------------------------------------------------------------------
\29\The District Court's Findings of Fact, 84 F. Supp. 2d
at 25, 57, maintain that the Windows leasing agreement
prohibits the user from transferring the OS to another machine so
that ``there is no legal secondary market in Microsoft
operating systems.'' The Findings of Fact then note at
58 that there is a thriving illegal market. To limit
this, Microsoft charges a higher price for Windows to OEMs that do
not limit the number of PCs the), sell without the OS pre-installed.
One might argue that the durable-goods monopoly problem is
eliminated by Microsoft's refusal to allow OEMs to install (without
penalty) old versions of Windows. As explained in the attached
Mathewson & Winter Report, this is incorrect for two reasons:
``(i) increases in the price of the new version of Windows will
reduce overall demand for new PCs, as users invoke the option to
keep existing PCs with the old version, and (ii) there is a retail
market for new versions of Windows software for installation on
existing PCs. Both (i) and (ii) provide channels through which the
existing stock of Windows software provides some competition for a
new version of Windows (i.e., it increases the elasticity of demand
for the new version). If the price of a new version is increased,
the demand for the new version is reduced because fewer consumers
will purchase new PCs as the price increase for Windows raises the
price of the overall package of the PC and the (mandated by
Microsoft) new version of Windows, and because some consumers who
would have purchased Windows to install on their old PCs will now
refuse to do so.'' (See Mathewson & Winter Report at 12 n.
10.)
\30\See Jeremy Bulow, ``Durable-Goods
Monopolists,'' Journal of Political Economy 90(2):
314-;332 (explaining how leasing, rather than selling, solves
the monopolists'' ``problem'' of competition from
previously existing stocks of goods); id. at 330 (a durable-goods
monopolist may be able to achieve the leasing result through
extending its monopoly to service contracts).
---------------------------------------------------------------------------
Fourth, in addition to these three general ways in which
Microsoft's contractual tying reinforces the OS monopoly,
Microsoft's more recent tying of its media player to the OS creates
yet another special and highly significant reinforcement of the
Windows monopoly. (See Mathewson & Winter Report at
36.) This problem results from the close connection
between the media player and Microsoft's proprietary media encoding
format, Windows Media Audio (``WMA''). Because Microsoft
does not license the WMA format to some rival media
players--;including, most notably, the only other media player
with substantial market presence, Real Player--;Microsoft's
media player is the only major player that can play content encoded
in Microsoft's format. As Microsoft's format becomes more and more
widespread--;it is currently growing in use at a rate ten times
that of its rivals - more and more content will become viewable and
playable only via Microsoft's media player, which is only
distributed via Microsoft's OS.
In such a market, then, a rival OS would have to overcome not
only today's applications barrier to entry to compete with
Windows--;that is to say, it would have to persuade application
writers to write their applications to interoperate with their
OS--;it would also have to overcome a new, even more daunting
``content encoding barrier to entry'' - i.e., it would
have to persuade owners of thousands (or perhaps even millions) of
pieces of multi-media content to re-encode their content in formats
that the media player used by'' the rival OS could read. (Id.
at 37-;38.) This barrier to entry applies not
only to rival PC operating systems, but also to evolving operating
systems for handheld and mobile communications devices, since
consumers v, ill want to access the best streaming content using
those devices. Thus, the currently daunting applications barrier to
entry is raised many times higher by virtue of the tying of the
Windows Media Player (and its related proprietary formats) to the
Windows OS.\31\
---------------------------------------------------------------------------
\31\This same theory applies to Microsoft's identity-
authentication application, known as ``Passport.'' If
Microsoft can leverage its OS monopoly to make Passport ubiquitous,
it can persuade e-commerce sites to adopt Passport as the sole
identity-authentication standard. If that were to happen, a nascent
OS competitor would not only have to develop its own identity-
authentication application; it would also have to persuade thousands
of e-commerce sites to adopt that application for use on their web
sites. Thus, Microsoft's tying of Passport to the Windows OS could
potentially create yet another barrier to entry in the OS market.
---------------------------------------------------------------------------
All four of these anticompetitive effects are mutually
reinforcing, because of the network effects operating between the
applications sector and the operating system market. (Id. at
31-;33.) Achieving dominance in applications
(through tying) strengthens the dominance of the OS, because buyers
in the OS market are more assured of available applications. The
greater dominance in the OS market in turn feeds back into greater
dominance in applications, since the tying strategies take the form
of imposing an
[[Page 28220]]
artificial advantage relative to applications of the dominant OS
supplier. The greater Microsoft's share across all middleware
applications markets, the greater the applications barrier to entry.
Thus, a remedy that does not forbid Microsoft's anticompetitive
tying leaves in place one of Microsoft's most powerful tools to
maintain its OS dominance--;and as a result, does not
``unfetter'' the market or ``terminate'' the
illegal monopoly. For this reason, the PFJ's failure to include a
ban on bundling is not in the public interest.
C. By Allowing Microsoft To Continue To Tie Its Middleware
Applications To Windows, Microsoft Retains One Of The Most Valuable
``Fruits'' Of Its Illegal Acts.
The Court of Appeals made clear that one necessary element of
any remedy in this case was to ``deny to [Microsoft] the fruits
of its violation.'' See Microsoft, 253 F.3d at 103 (quoting
United Shoe Mach. Corp., 391 U.S. at 250). This is in accord with
the prevailing doctrine in this area. See Grinnell Corp., 384 U.S.
at 577; 2 P. Areeda & H. Hovenkamp, Antitrust Laws
325(c) (2d ed. 2000).
The Court of Appeals found that Microsoft illegally maintained
its OS monopoly by engaging in anticompetitive practices. See
Microsoft, 253 F.3d at 51, 66. Here, because of the nature of its
monopoly, one of the most lucrative fruits of Microsoft's illegal
behavior is the ability to bundle its other software products with
the OS and reap gains in those markets as well. In this way, the
PFJ's failure to ban such tying clearly renders it deficient,
because without such a prohibition it will fail to prevent future
violations of Section 2, as discussed above--;and also fail to
prevent Microsoft from reaping the benefits of the OS monopoly that
it illegally maintained. Without such a prohibition, Microsoft will
be able to continue profiting from its anticompetitive behavior and
will have evaded any real punishment for breaking the law.
For these reasons, as with the ban on code commingling discussed
above, every other remedial proposal considered in this litigation
included a ban on Microsoft's contractual tying via bundling. A
formulation of such a ban was found in Judge Jackson's interim
conduct remedies, which--;in addition to the ban on binding
middleware products to the OS--;would also have prohibited
Microsoft from ``conditioning the granting of a Windows
Operating System Product 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.'' United States v. Microsoft, 97 F. Supp. 2d 59, 68 (D.DC
2000). Judge Posner's proposal would have prohibited tying any
middleware product with the OS unless Microsoft offered a version of
the OS without the middleware application, and did so at a reduced
price. See Posner Proposal * 3(9). The litigating states also have
proposed a very similar remedial approach. (See LSRP at 4-;6.)
Thus, it is only the PFJ, among the various proposals, that has
failed to take this essential step to terminate Microsoft's OS
monopoly, and deny Microsoft the fruit of its illegal acts. A remedy
without such a provision cannot be in the public interest.\32\
---------------------------------------------------------------------------
\32\We have argued elsewhere that there could be
alternatives to a ban on contractual tying that might, over time,
also prove effective. For example, if a remedial plan included a
strong provision to permit licensing of Windows, not just to OEMs,
but to third parties as well, and such a regime became
effective--; so that there was active and effective retail
competition for bundled OS applications offerings--;then the
necessity for banning Microsoft's contractual tying would be
somewhat lessened. In such an instance, Microsoft's potential for
abusive tying could be disciplined by competition from competing
bundles. However, absent such competition--;which the PFJ does
not create--;a ban on contractual tying is absolutely essential
to achieve the remedial objectives of this case--;and thus, the
PFJ's failure to include such a provision is fatal.
---------------------------------------------------------------------------
IV. THE PROPOSED FINAL JUDGMENT FURTHER FAILS THE PUBLIC
INTEREST TEST, BECAUSE IT DOES NOT ACHIEVE EVEN THE LIMITED
OBJECTIVES THAT IT HOLDS OUT AS ITS AIMS.
As demonstrated above, the PFJ fails to address Microsoft's
anticompetitive tying of middleware applications to the Windows OS,
and consequently fails to fulfill the remedial mandate of the Court
of Appeals. Yet. even for those anticompetitive acts that the PFJ
does attempt to address, it does not provide an adequate remedy for
Microsoft's illegal conduct. Indeed, the PFJ is so replete with
carefully crafted carve-outs and exceptions that many of its
provisions, though well intentioned, are rendered meaningless. The
result is that the PFJ will do little, if anything, either to
terminate Microsoft's monopoly or constrain its ability to fend off
middleware threats in the future. And, as we argue above, the
preliminary experience with these provisions--;since the onset
of their implementation by Microsoft--; provides little reason
to believe that the PFJ will be effective in practice. See Section
II, supra.
While any conduct remedy will, of course, have limitations and
the potential for evasion, none of the major defects in the PFJ are
inherent in the nature of this sort of remedy. The Litigating
States'' Remedial Proposal provides a useful contrast on this
point. Unlike the PFJ, the LSRP does not leave certain of
Microsoft's anticompetitive acts unaddressed or leave Microsoft with
the ability to perpetuate its operating system monopoly by illegally
eliminating competitive threats from middleware developers. The
Litigating States'' Remedial Proposal prevents Microsoft from
continuing its anticompetitive practices, is designed to restore the
competitive balance in the marketplace, and seeks to ensure that
competitive threats may emerge in the future unhindered by
Microsoft's anticompetitive conduct. As such, it fully comports with
the Court of Appeals'' decision and provides this Court with a
clear roadmap of what the public interest requires in this case.
To avoid undue length or repetition, we do not here provide a
comprehensive list of all the numerous inconsistencies, loopholes,
and shortcomings of the PFJ; we have included, in Attachment B, a
more complete listing for the Court's benefit. (See A Detailed
Critique of the Proposed Final Judgment in U.S. v. Microsoft,
Attachment B.) In this Section, instead, we focus on six critical
deficiencies in remedies that (unlike tying) are purportedly
addressed in the PFJ: (1) the PFJ's failure to prevent Microsoft's
discriminatory licensing practices; (2) its limited and slow-moving
API disclosure provisions; (3) its inadequate protections for OEMs
from retaliation; (4) its failure to promote distribution of Java;
(5) its ``gerrymandered'' definition of middleware; and
(6) its complete lack of an effective enforcement mechanism. Where
helpful, we contrast the relevant provision in the litigating
states'' proposal for comparison's sake. By comparing the two
proposals on a few central issues, it should be clear why the LSRP,
and not the PFJ, addresses Microsoft illegal conduct in manner that
both comports with the Court of Appeals'' decision and serves
the ``public interest'' under prevailing antitrust law.
A. The PFJ Allows Microsoft To Continue Engaging In
Discriminatory And Restrictive Licensing Agreements To Curtail The
Use Of Rival Middleware Products.
One of the ways in which the District Court found, and the Court
of Appeals upheld, that Microsoft illegally protects its operating
system monopoly from rival middleware is through discriminatory and
restrictive licensing provisions. Specifically, the Court of Appeals
found that Microsoft uses its licenses not only to reward OEMs that
utilize and promote its products (and to discriminate against those
OEMs that wish to promote non- Microsoft products), but also to
restrict the manner in which OEMs can distribute rivals''
products. See Microsoft, 253 F.3d at 61-;67.
Despite these findings, the PFJ permits Microsoft to continue to
employ discriminatory and restrictive licensing agreements to
curtail the use of its competitors'' products. As currently
structured, the PFJ allows Microsoft to continue its use of
discriminatory and restrictive licensing provisions to fend off
nascent threats from middleware competitors in several ways. First,
the PFJ explicitly allows Microsoft to provide market development
allowances to favored OEMs; it likewise allows Microsoft to enter
into ``joint ventures'' with OEMs, that, in practice, are
little more than shells for arrangements by Microsoft to shower
financial rewards on OEMs that are willing to refuse to deal with
Microsoft's competitors. Given the intense competition and low
margins in the OEM industry, these rewards would create a decisive
competitive disadvantage for ``disfavored'' OEMs, forcing
them to accede to Microsoft's restrictive terms.
The PFJ's mechanisms for enabling these anticompetitive tactics
are surprisingly explicit. Under Section III.B.3 of the PFJ,
Microsoft is allowed to pay OEMs ``market development
allowances'' to promote Windows products. Thus, OEMs that
promote Microsoft products apparently can receive de facto cash
rebates on their Windows shipments, while OEMs that deal with
Microsoft's rivals ``.',,ill pay full list price. This
preferential behavior in the browser market ,,,,,as found illegal by
both the District Court and the Court of Appeals.
[[Page 28221]]
See Microsoft, 253 F.3d at 60-;61. Microsoft should be allowed
to engage in leg/t/mate pricing decisions, but those decisions
should be limited to volume-based discounts published in its price
lists?\33\
---------------------------------------------------------------------------
\33\Less explicitly, but perhaps even more nefariously,
the same provision that authorizes continuation of ``market
development allowances'' (i.e., III.B.3) says that Microsoft
may also maintain ``programs ... in connection with Windows
[OS] products.'' This appears to be a carefully veiled
reference to Microsoft's use of ``Marketing Development
Funds''--;highly discretionary, highly targeted payments to
OEMs that can be yet another means of effectively rendering the list
price of Windows economically irrelevant. While the PFJ ostensibly
says that these ``programs'' must have ``objective
criteria,'' ``neutral'' criteria can be easily
formulated that have the effect of rewarding favored players and
punishing less cooperative OEMs, given the small number of major
OEMs in existence.
---------------------------------------------------------------------------
Second, under Section III.G.2 of the PFJ, Microsoft may use
``joint ventures'' to escape any restrictions the proposed
settlement would place on its licensing practices. For example,
Microsoft may join an OEM in a joint venture for any ``new
product, technology or service'' or improvement to any existing
``product, technology or service,'' provided that the OEM
contributes significant developer ``or other resources.''
(See PFJ at Section III.G.2.) In such an arrangement, Microsoft can
seek, and obtain, a pledge that its partner be ``prohibit[ed]
... from competing with the object of the joint venture ... for a
reasonable period of time.'' (Id. at III.G.) Thus, Microsoft
could enter into a ``joint development'' project for the
``new product'' of ``Windows X for Preferred OEM
Y.'' The OEM's contribution could be entirely in marketing and
distribution. Yet, under the language of the PFJ, it appears that
Microsoft would have the ability to contractually prohibit OEMs in
such joint ventures from offering products or services that compete
with Microsoft. Given Microsoft's history of abusive and coercive
behavior toward OEMs, it should not be allowed to enter into joint
ventures with OEMs that result in exclusive agreements. Otherwise,
in no time at all, Microsoft will use the opportunity to squelch
competition.
Third, the PFJ purports to provide OEMs with the freedom and
flexibility to configure the computers they sell in a way that does
not discriminate against non-Microsoft products. Under Section
III.C, the PFJ ostensibly prohibits Microsoft from entering into an
agreement that would--;among other things--;restrict an
OEM's ability to remove or install desktop icons, folders and Start
menus, and modify the initial boot sequence for non-Microsoft
middleware. However, the PFJ contains carve-out provisions that may
render these prohibitions effectively meaningless. Under the express
terms of Section III.C. 1 of the PFJ, Microsoft may retain control
of desktop configuration by being able to prohibit OEMs from
installing or displaying icons or other shortcuts to a non-Microsoft
product or service, if Microsoft does not provide the same product
or service. Thus, for example, if Microsoft does not include a media
player shortcut inside its ``My Music'' folder, it can
forbid an OEM from doing the same. This turns innovation--;and
the premise that OEMs be permitted to differentiate their
products--;on its head: under the PFJ, rivals can
``compete'' with Microsoft, but they are never allowed a
chance to bring a product to market first, to offer a functionality
before Microsoft does, or to benefit from their innovations before
Microsoft determines that it is ready to meet (and if history is a
guide, extinguish) these competitive challenges.
Additionally, under the PFJ, Microsoft can control the extent to
which non- Microsoft middleware is promoted on the desktop by virtue
of a limitation that OEMs may promote such software at the
conclusion of a boot sequence or an Internet hook-up only if they
display no user interface or a user interface that is ``of
similar size and shape to the user interface provided by the
corresponding Microsoft middleware.'' (See PFJ at III.C.3.) And
OEMs are allowed to offer Internet Access Provider
(``IAP'') promotions at the end of a boot sequence, but
only for their own LAP offerings (whatever that ambiguous limitation
means). (See id. at III.C.5.) Thus, under the PFJ, Microsoft
maintains the ability to set the parameters for competition and user
interface.
In order to promote competition from rival middleware, Microsoft
must be prohibited from entering into restrictive and
discriminator)'' contractual agreements with its licensees.
Although remedial proposals could have been crafted to address these
anticompetitive practices, the PFJ falls short of this mark.
By contrast, the Litigating States'' Remedial Proposal
would bring Microsoft's unlawful behavior to an end and thus provide
competing middleware the opportunity to receive effective
distribution through the important OEM channel. Under the LSRP,
Microsoft would be required, at a minimum, to offer uniform and non-
discriminatory license terms to OEMs and other third-party
licensees. The LSRP would also require Microsoft to permit its
licensees to customize Windows to include whatever Microsoft
middleware or competing middleware the licensee wishes to sell to
consumers. (See LSRP at 7-;9.)
In addition, the LSRP specifically prohibits Microsoft from
employing market development allowances, including special discounts
based on joint development projects?\34\ It also gives OEMs and
other third-party licensees the flexibility to feature non-Microsoft
products in ways that increase the likelihood that consumers will
use them, without providing broad exceptions that enable Microsoft
to avoid its obligations?\35\ Thus, it is the LSRP--;and not the
PFJ--;that meets the Tunney Act's ``public interest''
standard.
---------------------------------------------------------------------------
\34\(See States'' Proposed Text * 2(a)
(``Microsoft shall license, to Covered OEMs and Third-Party
Licensees, Windows Operating System Products .... pursuant to
uniform license agreements with uniform terms and conditions.
Microsoft shall not employ Market Development Allowances or other
discounts, including special discounts based on involvement or any
joint development process... ``).)
\35\(See States'' Proposed Text
2(c) (``Microsoft shall not restrict (by contract or
otherwise, including but not limited to granting or withholding
consideration) an OEM or Third-Party Licensee from modifying the
BIOS, boot sequence, startup folder, smart folder (e.g., MyMusic or
MyPhotos), links, internet connection network servers, web servers,
and hand-held devices. The PFJ does not; by contrast, the Litigating
States'' Remedial Proposal expressly provides that Microsoft
must disclose all APIs, technical information, and other
communications interfaces so that Microsoft software installed on
one computer (including personal computers, servers, handheld
computing devices and set-top boxes) can interoperate with Microsoft
platform software installed on another computer. (See LSRP at 11.)
---------------------------------------------------------------------------
B. The PFJ Requires Microsoft To Disclose APIs Only In Certain.
Narrow Circumstances. Another key element of the government's case
against Microsoft was the company's withholding of the operating
system's API information from rivals, so as to illegally decade the
performance of rival applications. In any market where Microsoft is
allowed to withhold APIs, rival software will perform imperfectly in
the Windows environment, and Microsoft will illegally gain
dominance. Accordingly, in order to promote competition from rival
middleware developers, it is essential that Microsoft be required to
provide timely access to all technical information required to
permit non-Microsoft middleware to achieve interoperability with
Microsoft software.
Section III.D of the PFJ imposes an obligation on Microsoft to
disclose to Independent Software Vendors (``ISVs''), and
others, the APIs that Microsoft middleware uses to interoperate with
any Windows OS product. However, the PFJ's requirement for API
disclosure is drawn much too narrowly to allow non-Microsoft
middleware to compete fairly with Microsoft middleware. Here again,
a comparison with the proposal of the litigating states is
instructive.
First, the PFJ's disclosure requirement fails to prevent
``future monopolization,'' because it fails to apply to
critical technologies that Microsoft is likely to use to maintain
the power of its OS monopoly in the future. Because nascent threats
to Microsoft's monopoly operating system currently exist beyond the
middleware platform resident on the same computer, any effective API
disclosure requirement must apply to all technologies that could
provide a competitive platform challenge to Windows, including
wizard, desktop, preferences, favorites, start page, first screen,
or other aspect of any Middleware in that product.'').)
Second, the PFJ creates an apparent exception for Microsoft's
API disclosure requirement in the emerging areas of identity
authentication and digital rights management
(``DRM'')--;critical applications that are also
important to the prospects of Microsoft's ``future
monopolization.'' Section III.J.1.(a) appears to exempt
Microsoft from disclosing any API or interface protocol ``the
disclosure of which would compromise the security of... digital
rights management.., or authentication systems, including without
limitation, keys, authorization tokens or enforcement
criteria.'' This exception is written much more broadly than
any of the limits on Microsoft behavior, and could easily be used to
protect Microsoft's APIs relating to DRM and identity authentication
applications. The implication of this is that any rival DRM or
authentication software will not function as ,,','ell as Microsoft's
DRM, Passport, and .Net
[[Page 28222]]
My Services (formerly known as Hailstorm). Thus, under the PFJ,
Microsoft may be able to degrade the performance of any rivals to
any of these services.
These markets, however, are just as important to the next stage
of the industry's evolution as browsers were to the last stage. DRM
solutions, for example, allow content vendors to sell audio and
video content over the Internet on a ``pay for play''
basis. Since the most prevalent use of media players in the years
ahead will be in playing content that is protected in this fashion,
if non-Microsoft media players cannot interoperate with
Windows'' DRM solution, those media players will be virtually
useless except for ``freeware'' content.\36\ Thus, if DRM
is exempt from API disclosures under the PFJ, Microsoft can destroy
the competitive market for one of the most vital forms of
middleware--;media players.
---------------------------------------------------------------------------
\36\See Brad King, Microsoft Poised for Music Domination,
Wired, June 14, 2001.
---------------------------------------------------------------------------
The authentication exemption is potentially even more far-
reaching. Most experts agree that the future of computing lies with
server-based applications that consumers will access from a variety
of devices. Indeed, Microsoft's ``.Net'' and ``.Net
My Services'' (formerly known as Hailstorm) are evidence that
Microsoft certainly holds this belief. These services, when linked
with Microsoft's Passport, may allow Microsoft to participate in a
substantial share of consumer e-commerce transactions over the
Interact, irrespective of which device is used to access the
Internet (cell phones, handheld computers, etc.). If Microsoft
prevents competition with its Passport standard, it may be able to
realize its stated goal of charging a fee for every single e-
commerce transaction on the Internet.\37\
---------------------------------------------------------------------------
\37\As Nathan Myrhvold, Microsoft's former chief
technology officer, put it, Microsoft's strategy is to ``get a
``vig,'' or ``vigorish,'' on every transaction
over the Internet that uses Microsoft's technology.'' David
Bank, Microsoft Moves To Rule On-Line Sales, The Wall Street
Journal, June 5, 1997, at B1. The term refers to a gambling house's
``cut'' on all bets placed in the establishment.
---------------------------------------------------------------------------
Under the guise of security, Microsoft has obtained a loophole
in the PFJ that undercuts a critical disclosure requirement.
Microsoft's legitimate security concerns--; which, of course,
are shared by all of its major business rivals--;do not require
this loophole. Section III.J.2 of the PFJ excludes from disclosure
rights any company with a history of software counterfeiting or
piracy or willful violation of intellectual property rights, or any
company that does not demonstrate an authentic and viable business
that requires the APIs. This means that Microsoft only has to
disclose to bona fide software rivals whose interests in security
and stability are as Meat as Microsoft's. As added protection,
Section III.J.l.(b) of the PFJ allows Microsoft to refrain from any
disclosure simply by persuading an impartial government body, on a
case-by-case basis, that a specific disclosure would put system
security at risk. Together, these provisions provide Microsoft with
all the room it needs to take legitimate security precautions.
Once again, the litigating states'' proposal provides a
useful contrast. It contains no disclosure ``carve out''
to exempt DRM and identity-authentication from the general
disclosure obligation imposed on Microsoft. (See LSRP at 11.)
Instead, it creates a regime of timely, complete, and comprehensive
API disclosure that will allow competitors an opportunity to
challenge Microsoft's efforts to entrench its OS monopoly in a
market where distributed computing is the dominant model--;an
opportunity that was sadly missed as the browser became critical to
Internet-related applications, due to Microsoft's anticompetitive
refusals to share technical information. Thus, once again, it is the
LSRP, not the PFJ, that would meet the Court of Appeals''
objectives and the public interest standard.
C. The PFJ Does Not Ban Many Forms Of Retaliation By Microsoft
Against OEMs.
The District Court found, and the Court of Appeals upheld, that
in order to create a competitive market structure in which non-
Microsoft middleware products are able to compete effectively with
Microsoft products, licensees, such as OEMs, must have the ability
to distribute and promote non-Microsoft products without fear of
coercion or interference from Microsoft. Recognizing the central
role that OEMs play in the distribution and ultimate usage of non-
Microsoft middleware products, the PFJ includes an anti- retaliation
provision which is intended to protect those entities that support
or promote non-Microsoft products. According to the Department of
Justice, this anti-retaliation provision ``broadly prohibits
any sort of Microsoft retaliation against an OEM based on the OEM's
contemplated or actual decision to support non-Microsoft
software.'' (See CIS at 25.)
Unfortunately, the PFJ does not provide the broad protection
from Microsoft's retaliation that the government claims it does.
Indeed, the PFJ's anti-retaliation provision is so narrow that it
will do little, if anything, to protect OEMs that wish to distribute
or promote non-Microsoft products. The PFJ's anti-retaliation
provision is deficient in numerous respects. First, it appears to
create only a narrow range of procompetitive activities that OEMs
can engage in without being subject to Microsoft retaliation. For
example, the PFJ prohibits retaliation for OEMs that promote rival
middleware, but does not appear to prohibit retaliation against OEMs
that promote any other type of rival software (which, under the
PFJ's language, probably includes rivals to Passport, MS Money,
Windows Movie Maker, and MSN Messenger, just to name a few). Even if
this glitch were unintentional, the ambiguity might still be
sufficient to allow Microsoft to coerce OEMs into avoiding Microsoft
rivals.
Second, even within the scope of protected OEM activities, the
PFJ appears to bar only certain types of Microsoft retaliation. The
PFJ prohibits Microsoft from withholding ``newly introduced
forms of non-monetary Consideration'' from OEMs, but is less
clear about whether Microsoft may use already-existing forms of
consideration to retaliate against OEMs. (See PFJ at III.A.) More
importantly, while the PFJ prohibits Microsoft retaliation via an
alteration of commercial agreements, it does not appear to prohibit
any other form of Microsoft retaliation (e.g., product
disparagement) that Microsoft can imagine.\38\
---------------------------------------------------------------------------
\38\For example, the PFJ does not appear to foreclose a
Microsoft strategy whereby OEMs would be told that senior Microsoft
executives and spokespeople will opine that the product of OEM X
works better than the product of OEM Y, if OEM Y refuses to install
only Microsoft applications.
---------------------------------------------------------------------------
In addition, under Section III.A of the PFJ, Microsoft may, sua
sponte, terminate an OEM's Windows license after sending the OEM two
notices stating that it believes the manufacturer is violating its
license* There need not be any adjudication or determination by any
independent tribunal that Microsoft's claims are correct. All that
is required are two notices; after that, Microsoft may terminate an
OEM's license. This provision means that the OEMs are, at an), time,
just two registered letters away from unannounced economic calamity;
after all, given Microsoft's monopoly on the operating system,
termination of an OEM's Windows license is a death sentence for an
OEM's business.
Again, such inadequate safeguards are not inherent in an
effective non- retaliation protection. For instance, the Litigating
States'' Remedial Proposal prevents Microsoft from taking any
action that directly or indirectly adversely affects OEMs or other
third-party licensees that in any way develop, distribute, support
or promote competing products, thereby providing the type of
protection contemplated by the Court of Appeals. (See LSRP at
13-;14.) Thus, the Litigating States'' Remedial Proposal
clearly prohibits Microsoft retaliation for any procompetitive OEM
behavior and prohibits all forms of Microsoft retaliation.
Importantly, the LSRP also prohibits Microsoft from retaliating
against any individual or entity for participating in any capacity
in any phase of this litigation. Again, it is the LSRP that meets
the Court of Appeals'' objectives for this case--; not the
PFJ.
D. The PFJ Does Nothing To Remedy Microsoft's Illegal Campaign
To Eliminate Java.
Yet another aspect of the trial court's decision that was upheld
on appeal by the DC Circuit was the District Court's finding that
Microsoft's actions in eliminating the threat posed by Sun
Microsystems'' Java technology were unlawful under Section 2 of
the Sherman Act. See Microsoft, 253 F.3d at 74-;75. The PFJ,
however, omits any remedy for this core abuse. Thus, unlike either
the District Court's remedy or the remedy Judge Posner suggested,
the PFJ does not protect those specific products, such as Java, that
actually compete with Windows today and offer alternatives to
Microsoft's dominance.
The Litigating States'' Remedial Proposal addresses this
deficiency by requiring that Microsoft distribute Java with its
platform software for a period of ten years. (See LSRP at
17-;18.) The LSRP recognizes, as did the District Court and
Judge Posner, that in order to ensure that rival products such as
Java can compete with Microsoft, they must receive the widespread
distribution that they could have obtained absent Microsoft's
unlawful behavior.
[[Page 28223]]
The requirement that Microsoft distribute Java with its
operating system and Internet Explorer browser takes on even greater
importance in light of Microsoft's recent behavior. For example,
although the Court of Appeals upheld the trial court's finding that
Microsoft targeted and destroyed independent threats from the Java
programming language, see Microsoft, 253 F.3d at 53-;56, 60,
Microsoft announced less than a month later that it was dropping any
support for Java from Windows XP. As The Wall Street Journal
reported at the time, ``This favors Microsoft's new
technologies, and will inconvenience consumers .... [I]f you want
your Web page accessible to the largest number of people, you may
want to drop Java'' and switch to Microsoft's competing set of
products, which is under development and is known as NET.''\39\
Thus, notwithstanding the Court of Appeals'' holding that
Microsoft illegally maintained its monopoly by requiring major
independent software vendors to promote Microsoft's JVM exclusively
(i.e., by requiring developers, as a practical matter, to make
Microsoft's JVM the default in the software they developed),
Microsoft is again acting illegally to maintain--;and further
entrench--;its operating system monopoly against Java's
middleware threat.
---------------------------------------------------------------------------
\39\John R. Wilke and Don Clark, Microsoft Pulls Back Its
Support for Java: New Windows XP System Won't Include Software
Needed to Run Programs, The Wall Street Journal, July 18, 2001.
---------------------------------------------------------------------------
To remedy the specific and extensive anticompetitive tactics
aimed at Java, as found by the District Court and affirmed by the
Court of Appeals, Microsoft should be ordered--;as outlined in
the Litigating States'' Remedial Proposal--;to distribute
with its platform software a current version of the Java middleware.
This would ensure that Java receives widespread distribution, thus
increasing the likelihood that it can serve as a viable competitive
platform to Windows. Although rivals such as Java will likely remain
small players compared to the dominant Windows OS, their existence
on the competitive fringe is critical to provide some competitive
discipline to Microsoft on pricing and coercion matters. Moreover,
the existence of these rivals creates a base for future developments
that might one day provide true alternatives to Windows.
E. The PFJ Includes A ``Gerrymandered'' Definition Of
Middleware. Though not readily apparent, the effectiveness, or lack
thereof, of the PFJ's restrictions on Microsoft's behavior heavily
depends on the proposed agreement's definition of
``middleware.'' Under the proposed settlement, OEMs are
protected from retaliation and can promote competitive alternatives
to Microsoft products only in the area of middleware. Thus, if rival
software falls outside of the definition of middleware, Microsoft
can essentially use its coercive might to prevent that software from
being distributed via OEMs. Conversely, if a Microsoft product is
not classified as middleware, Microsoft is permitted to use coercion
to force its adoption and promotion.
The PFJ adopts a new, and greatly narrowed, definition of
middleware, both in terms of ``Microsoft Middleware
Products'' and ``non-Microsoft Middleware.'' The
result is significant because under the newly created definition,
Microsoft may be able to subvert many of the PFJ's restrictions.
Tile Litigating States'' Remedial Proposal defines middleware
in a manner consistent with the definition adopted by both the
District Court and the Court of Appeals.\40\ It thus prevents
Microsoft from using a definitional shell game to avoid changing its
unlawful behavior.
---------------------------------------------------------------------------
\40\(See States'' Proposed Text 22(w).)
---------------------------------------------------------------------------
The District Court and the Court of Appeals adopted the same
definition of middleware: software products that expose their own
APIs; are written to interoperate with a variety of applications;
and are written for Windows as well as multiple operating systems.
See Microsoft, 253 F.3d at 53; see also Findings of Fact, 84 F.
Supp. 2d at 17-;18, 28-;29. Thus, while
the DC Circuit discussed browsers and the Java technologies as
leading examples of middleware, Microsoft, 253 F.3d at 59-;78,
it never adopted an exclusive list limited to specific products (as
the PFJ does).\41\ Importantly, the Court of Appeals also agreed
with the District Court that the appropriate category of
``middleware'' applications that merit protection against
Microsoft's anticompetitive conduct includes .any application that
could operate separately or together with other such applications to
create even the ``nascent'' potential for alternative
platforms that could compete with Microsoft's OS monopoly. Id. at
52-;54, 59-;60, 74.
---------------------------------------------------------------------------
\41\See also Microsoft, 253 F.3d at 59 (referring to
browsers as exemplary of ``any middleware product, for that
matter''); id. at 74 (Java is a set of technologies that
``is another type of middleware posing a potential threat to
Windows'' position as the ubiquitous platform for software
development'').
---------------------------------------------------------------------------
These standard definitions of middleware were also endorsed in
the Posner Proposal, which, as noted above, Microsoft was reportedly
ready to accept last year. Section 2(3) of the Posner Proposal
defined middleware broadly, to include any ``software that
operates between two or more types of software.., and could, if
ported to multiple operating systems, enable software products
written for that middleware to be run on multiple operating
systems.'' Moreover, the substantive portion of the Posner
Proposal, in Section 3(8)(c), explicitly included not just
enumerated products, but also an)'' ``middleware
distributed with such operating system installed on one personal
computer to interoperate with any of the following software
installed on a different personal computer or on a server: (i)
Microsoft applications, (ii) Microsoft middleware, or (iii)
Microsoft client or server operating systems.''
The PFJ departs significantly from these established definitions
of middleware and instead adopts wholly new definitions for both
``Microsoft Middleware Products,'' and ``non-
Microsoft Middleware.'' These definitions include several flaws
that Microsoft may be able to use to anticompetitively advantage its
applications, continue to profit from the fruits of its illegally
maintained monopoly, and evade the practical consequence of the PFJ
for many product lines.
To start, the PFJ's definition of ``Microsoft Middleware
Products'' appears to limit this category to five specifically-
listed existing products and their direct successors? This makes no
sense for two reasons. First, why define the most critical term in
the proposed settlement narrowly when Microsoft has already
demonstrated its skill at evading consent judgments?\42\ And second,
why does the list include certain Microsoft products, but arguably
not their virtually indistinguishable cousins: i.e., Outlook
Express, but not Outlook; Windows Messenger, but not MSN Messenger;
the Microsoft JVM, but not MSN RunTime; Internet Explorer, but not
MSN Explorer. Likewise, Microsoft middleware applications such as
the MSN client software and Passport appear to be excluded. The
significance of these omissions cannot be overstated. For example,
although Microsoft must allow OEMs, under the PFJ, to remove end-
user access to Internet Explorer, the decree's language appears to
allow Microsoft to ban any effort to replace MSN Explorer with a
competitor. This is a step backwards from the status quo.
---------------------------------------------------------------------------
\42\The PFJ does contain a generic middlewaredefinition,
see Section VI.K.2, but this applies only to new products, and
therefore does not capture an)'' product now in existence.
---------------------------------------------------------------------------
Additionally, Section III.H.2 of the PFJ explicitly limits OEM
flexibility to set non-Microsoft Middleware as a default so that it
can be automatically invoked: the PFJ appears to allow OEMs to do so
only with competitors of ``Microsoft Middleware Products''
that (1) appear in separate Top-Level Windows, with (2) separate
end-user interfaces or trademarks. Thus, Microsoft might be able to
avoid the PFJ's provisions simply by embedding Microsoft middleware
with other middleware, or not branding it with a trademark. That
means Microsoft--;not the OEMs, and certainly not the
market--;would determine the scope of desktop competition and
the pace of desktop innovation.
Conversely, the definition of the rivals to Microsoft Middleware
Products--; ``non Microsoft Middleware Product''- is
also jury-rigged to advantage Microsoft. Under Section IV.N of the
PFJ, protected middleware products are limited to those applications
``of which at least one million copies were distributed in the
United States within the previous year.'' Thus, developers have
no protection from Microsoft's well-honed predatory tactics until
they can obtain substantial distribution.
The PFJ's middleware definition also does not explicitly include
web-based services, the most important future platform challenge to
the Windows monopoly. These web-based services represent an
important and growing type of middleware, and the PFJ's failure to
explicitly cover them may allow Microsoft to recreate and extend its
desktop monopoly to new platforms.\43\
---------------------------------------------------------------------------
\43\See Rebecca Buckman, Microsoft Says Its Future Lies
in Subscriptions, The Wall Street Journal, May 31, 2001.
---------------------------------------------------------------------------
[[Page 28224]]
The newly created and narrowly crafted definitions of middleware
in the PFJ pave the way for Microsoft to avoid many of the
prohibitions on its conduct. The middleware definitions in the LSRP,
on the other hand, are consistent with those endorsed by the
District Court and Court of Appeals, and ensure that the protections
from Microsoft's illegal conduct are extended to Microsoft's
competitors in critical middleware markets.
F. The PFJ Lacks A Meaningful Enforcement Mechanism.
For any remedy against Microsoft to be effective, it must
include a strong, timely, and meaningful enforcement mechanism. The
PFJ creates an extraordinarily weak enforcement authority--;one
that likely will be overwhelmed and co-opted by Microsoft. More
specifically, as currently drafted, there are two principal problems
with the PFJ's enforcement mechanism.
First, the proposed decree leaves all enforcement to a single,
three-person Technical Committee (``TC''). With no looming
antitrust proceedings to put pressure on Microsoft to behave,
Microsoft will have every incentive to hinder the efforts of the TC.
Moreover, Microsoft will have substantial insights and influence
over the TC--;Microsoft will appoint at least one member of the
TC (the first two members will appoint the third); the TC will be
stationed full-time on Microsoft premises; and the TC will rely for
many types of enforcement on a compliance officer hired and paid for
by Microsoft. In light of all this, it would be easy to imagine a
situation where the TC, during the entirety of its existence, never
took a single action critical of or hostile to Microsoft, no matter
what behaviors Microsoft engaged in.
Second, the enforcement authority has no power other than the
authority to investigate. The TC cannot expedite claims, assess
fines, or otherwise move quickly to redress Microsoft's illegal
behavior. If the TC finds any abuse, its only recourse will be to
the courts, through mini-retrials of United States v. Microsoft.
Moreover, under Section IV.D.4.(d) of the PFJ, the TC is prohibited
from using any of its work product, findings, or recommendations in
any court proceedings. Thus, even if the TC eventually refers a
matter to the courts, the proceedings will have to start from
scratch. The history of the 1994 consent decree shows the futility
of this type of approach.
By contrast, the Litigating States'' Remedial Proposal
recommends the creation of a Special Master who is empowered and
equipped to investigate Microsoft's behavior in a manner that is
prompt and resolute. The appointment of a Special Master with
defined remedial powers is essential if Microsoft's unlawful
behavior is to be curbed and competition restored to the
marketplace. Thus, the creation of a Special Master provides for a
mechanism that is much more effective in ensuring Microsoft's
compliance with the settlement decree, and does not suffer from the
defects identified above in the PFJ's TC proposal.
First, unlike the TC in the PFJ, a Special Master, as selected
by the Court, would be independent. He or she would not be dependent
on Microsoft for resources, appointment, or other needs.
Second, under the Litigating States'' Remedial Proposal,
the Special Master would have the authority to identify,
investigate, and quickly resolve enforcement disputes. For example,
under the States'' proposal, the Special Master would have the
power and authority to take any and all acts necessary to ensure
Microsoft's compliance. (See States'' Proposed Text
18(b).) The Special Master would have the benefit of
both business and technical experts. (See id. 18(d).)
Upon receipt of a complaint, it would be required to make an initial
determination of whether an investigation is required within
fourteen days. After notifying Microsoft and the complainant of its
decision to investigate, Microsoft would then have fourteen days to
respond. After Microsoft's response, the Special Master would be
required to schedule a hearing within twenty-one days, and fifteen
days after the hearing, would be required to file with the Court its
factual findings and a proposed order. (See id. 18(f).)
Unlike the enforcement mechanism in the PFJ, the creation of a
Special Master as outlined by the States would prevent disputes over
Microsoft's compliance from becoming wars of attrition that would
drain the system and guarantee Microsoft victory. The history of
this case, and of antitrust regulation in general, suggest the need
for an enforcement mechanism that can ensure the timely resolution
of any disputes and minimize any demand on judicial resources. The
enforcement provisions contained in the Litigating States''
Remedial Proposal accomplish these objectives.
V. THE CIRCUMSTANCES OF THIS CASE STRONGLY MILITATE IN FAVOR OF
GATHERING EVIDENCE AND TESTIMONY--;EITHER IN A HEARING, OR
THROUGH THE USE OF THE RECORD FROM THE REMEDIAL PROCEEDING--;TO
DETERMINE IF THE PFJ MEETS THE PUBLIC INTEREST TEST.
We believe, for the reasons presented above, that the PFJ fails
the Tunney Act's ``public interest'' test and should be
rejected. At the very least, however, there is ample basis for the
Court to conclude that a rigorous hearing is needed to air the
objections to the PFJ and resolve the doubts that the Court
hopefully has about the proposed decree. While it need not be a
lengthy proceeding, the Court may also want to consider accepting
evidence and taking testimony- or alternatively, making use of
record evidence it will receive in the upcoming proceeding
concerning the LSRP. The question of what can be learned about the
PFJ's prospects for effectiveness, since its partial implementation
began in July (and, in other respects, December), is especially
critical, and would benefit from additional fact-finding by the
Court.
A. The Complexity And Significance Of This Case--;And The
Inadequacy Of The CIS -All Militate In Favor Of A Hearing On The
PFJ. Of all the cases in which courts have reviewed proposed consent
decrees to make a public interest determination under the Tunney
Act, the case most similar to the present action is American Tel.
& Tel. Co., 552 F. Supp. at 131, aff'd sub nom Maryland v.
United States, 460 U.S. 1001 (1983), in which Judge Greene subjected
the government's proposed consent decree with AT&T to intense
judicial review.\44\ In AT&T, the court recognized that the
proposed settlement not only would dispose of ``what is the
largest and most complex antitrust action brought since the
enactment of the Tunney Act, but [] itself raises what may well be
an unprecedented number of public interest questions of concern to a
very large number of interested persons and organizations.''
American Tel. & Tel. Co., 552 F. Supp. at 145.\45\ In light of
the size and the complexity of the case,\46\ 46 as well as its
``unfortunate history'' and the interests of third
parties, the court held an extensive hearing to address key issues
raised by the consent decree and the comments of interested parties.
Id. at 147, 152. The case for an extensive hearing on the PFJ in
this proceeding is overwhelming for similar reasons.
---------------------------------------------------------------------------
\44\Similar to the case at hand, Judge Greene in ,4
T& T had a well-developed factual record on which to base his
public interest determination. In .4 T&T, the parties reached
their settlement following a period of discovery, pretrial motions,
and an eleven-month trial. Shortly before the evidence phase was to
end, the Department of Justice and the defendant agreed upon, and
submitted to the court, a proposed final judgment.
\45\Here, of course, the proposed consent decree was
reached after a full trial on the merits, as well as an affirmance
by the Court of Appeals, upholding the District Court's findings of
liability against Microsoft. The court also acknowledged that if
approved, the proposed decree ``would have significant
consequences for an unusually large number of ratepayers,
shareholders, bondholders, creditors, employees and
competitors,'' and would affect ``a vast and crucial
sector of the economy.'' /d. at 152.
\46\The Senate sponsor of the Tunney Act, Senator Tunney,
specifically cited a case's complexity as a factor militating in
favor of conducting a hearing on the adequacy of a decree. See 119
Cong. Rec. S3453 (daily ed. February 6, 1973) (statement of Sen.
Tunney).
---------------------------------------------------------------------------
First, this is an extremely complicated case, to say nothing of
the profound consequences any settlement will ultimately have on the
computer and Internet industries. The economic significance of the
computer industry is unquestioned. In such an environment, expert
economic analysis is critical to help the Court not only understand
the incentives that will drive Microsoft's response to any proposed
settlement, but also assess whether the PFJ will succeed in bringing
the monopolist's unlawful behavior to an end and promoting
competition in a market that has long been restricted. Given the
complexity of this case, the Court should not approve the PFJ
without an adequate hearing to consider the many- and often
technical--;objections to it that will doubtlessly be raised in
the Tunney Act submissions.
Second, in temps of the impact that an{time} , proposed
settlement in this case will have on the public, Judge Greene's
depiction of the AT&T case is, once again, more than fitting
here: ``[t]his is not an ordinary antitrust case.'' Id. at
151. Microsoft is one of our nation's largest corporations. It plays
a central role in one of the country's most critical and important
industries, and thus in our country's economy. Any settlement that
[[Page 28225]]
addresses Microsoft's illegal conduct in a manner that is consistent
with the Court of Appeals'' decision and prevailing antitrust
law will have far-reaching consequences on numerous organizations,
both public and private, as well as on Microsoft, its employees,
shareholders, competitors, and most importantly, consumers. Thus, a
hearing to consider the breadth and depth of these consequences is
in order before the PFJ is approved.
Third, a hearing should be held to require the Justice
Department to answer the many questions surrounding the
PFJ--;raised here, and doubtlessly elsewhere--;that the
Competitive Impact Statement ignores or fails to adequately address.
Why was a new, ``gerrymandered'' definition of middleware
used in the PFJ--;instead of the definition used by both the
trial and appellate courts, and in every other remedial proposal?
Why was a Java- related remedy omitted, when that was such a key
part of the case? Why were only some forms of retaliation, for only
some procompetitive acts, prohibited? And most importantly, why does
the PFJ not address all of the anticompetitive wrongs that were
found at trial, and upheld on appeal--;including, most
especially, Microsoft's unlawful tying? These questions are not
answered by the CIS, as the Tunney Act directs and the public
interest demands, and as the Court would surely desire. A full
review of these questions, and many others, is needed by the Court
before it can approve the PFJ (if it is inclined to approve the
PFJ).
Thus, in light of the specific objections from third parties
revealing the PFJ's numerous deficiencies--;and the oddity of
the differing remedial proposals now before the Court--;the
Court should hear oral argument and, if necessary, take additional
testimony. Giving the government an opportunity to explain the
omissions in its proposed settlement, and third parties the
opportunity to demonstrate the efficacy of the litigating
states'' proposal, will afford the Court the necessary basis on
which to make its public interest determination in this important
and unprecedented case.
B. The Court Should Conduct A Proceeding--;Taking Evidence
And Hearing Testimony, If Necessary--;To Determine How The PFJ's
Provisions Have Functioned Since Some Were Put In Place In 2001.
A second rationale for a hearing is to develop a factual record
concerning the point we make in Section II, supra: namely, that the
Court can assess the prospects for the likely effectiveness of the
PFJ by seeing how those provisions that have been implemented are
starting to work--;or not--;in practice.
Above, we have suggested that the empirical record developed in
the PC industry since Microsoft's July 11, 2001 announcement of
``greater OEM flexibility for Windows,'' and since
Microsoft began to implement many of the PFJ's remedial provisions
on December 16, 2001, should be examined carefully by this Court as
it determines whether the PFJ is in the ``public
interest.'' We also express the view that these provisions
have, in fact, been ineffectual in promoting competition and are
showing no signs that they will yield change in the competitive
position of non-Microsoft middleware--;and as a result, cannot
be said to be in the public interest.
At the same time--;while we doubt it, seriously--;we
recognize it is theoretically possible that there may be reasons why
these provisions have not yet shown signs of effectiveness, but
would be effective over time. At least, that is what Microsoft and
the Justice Department are likely to assert. If the Court is
inclined to give these assertions any credence, that is all the more
reason for the Court to conduct a proceeding--;taking evidence
and hearing testimony, if necessary- to make a determination on such
claims based on empirical evidence, rather than relying upon
hypothetical contentions or abstract theories. Such a proceeding is
authorized by the Tunney Act, see 15 U.S.C. * 16(f), and would be
appropriate in this instance.
Evidence and testimony from the OEMs can make clear whether they
are taking advantage of the ``new flexibility'' ostensibly
being provided under the PFJ--;and if not, why not. Given the
OEMs'' likely fears of retaliation from testifying in such a
proceeding--;as reflected by their apparent (and understandable)
reluctance to testify in the remedial proceeding--;the Court may
want to consider appointing a Special Master to take evidence from
the OEMs confidentially.\47\ Likewise, evidence and testimony from
non- Microsoft middleware companies can indicate how the provisions
of the PFJ, after they have been in place for several months,
are--;or are not--;enabling them to compete with Microsoft.
The same can be said for OS rivals to Microsoft.
---------------------------------------------------------------------------
\47\The Court is authorized to appoint a Special Master
to conduct inquiries as part of this Tunney Act proceeding. See 15
U.S.C. * 16(f)(2). Making a determination as to why OEMs have failed
to use their ``new found freedoms''--;and whether they
are likely to do so in the future--;would seem to be a task well
suited to a Special Master.
---------------------------------------------------------------------------
The point is that while we firmly believe that the publicly
available information and reports all indicate that the PFJ's
provisions, as implemented since December 16th (and the browser-
related PFJ provisions, as implemented since July 11th), have done
little or nothing to promote competition, the Court may wish to base
such a conclusion upon a judicially developed record that would
allow both proponents and opponents to offer explanations and
evidence in support of their views. Such a proceeding could be of a
more informal nature, i.e., the Court could solicit comments from
the relevant parties and industry experts; or it could be conducted
by a Special Master, as we suggest above; or it could be a more
formal, trial-type undertaking. All of these approaches are
authorized under the Tunney Act, which grants wide discretion to the
court to adopt whatever form of proceeding it considers most
effective. See 15 U.S.C. 16, passim. But on one point,
the Act, or at least its legislative history, is rather firm:
``[T]he court must obtain the necessary information to make [a]
determination that the proposed consent decree is in the public
interest.'' 1974 U.S.C.C.A.N. 6535, 6538-;39 (H.R. Rep.
93-;1463, quoting S. Rep. 93-;298, at 6-;7 (1973))
(emphasis added). Some sort of proceeding to examine these questions
is justified in these circumstances,\48\ and could be helpful to the
Court in its consideration of the practical effects of the PFJ.
---------------------------------------------------------------------------
\48\While Congress made clear, in enacting the Tunney
Act, that such hearings were to be the exception, and not the rule,
see 1974 U.S.C.C.A.N. 6535, 6539 (quoting S. Rep. 93-;298, at 7
(1973)), this may well be one of those cases where an evidentiary
inquiry is called for.
---------------------------------------------------------------------------
C. In Making Its ``Public Interest'' Determination.
This Court Should Take Into Account The Evidence That Will Be
Adduced In The Upcoming Remedial Proceeding. Finally, the Court
should take advantage of the Tunney Act's broad procedural
flexibility to use the record evidence that will be amassed in the
upcoming remedial proceeding as it make its ``public
interest'' determination in this review. The Court's Tunney Act
review of the PFJ in this proceeding can be substantially assisted
by the record developed in the forthcoming proceeding on the LSRP.
As we have argued, the Court's objectives in both proceedings are
the same--;namely, to terminate Microsoft's illegal conduct,
prevent the recurrence of such conduct, and create a market
structure in which competition does not simply exist in theory, but
actually yields real alternatives to Microsoft's products. Moreover,
the Court's analysis in both proceedings is guided by the\49\ same
legal principles. See Section I, supra.
---------------------------------------------------------------------------
\49\This is not to say that the PFJ should be rejected
merely because it is not identical to the remedy that the Court
might impose in the remedial proceeding. See supra note 2.
Conversely, acceptance of the PFJ would not preclude the Court from
imposing a different remedy in the proceeding being pressed by the
litigating states.
---------------------------------------------------------------------------
Many of the questions the Court must answer in the course of
reviewing the PFJ--;e.g., What sort of anti-retaliation
provisions are needed to empower OEMs and foster real competition?
Must third parties be empowered to promote competition through
offering alternatives to the ``Windows bundle'' for a
remedy to be effective?--;will be addressed, in whole or in
part, in the remedial proceeding. To the extent that these questions
can only be answered by hearing testimony from some of the same
individuals and the same sources in the remedial proceeding, the
Court's reliance on that evidence in this proceeding would result in
a more comprehensively informed review, streamline the Court's
resolution of the issues, and lead to a much more efficient use of
judicial resources.
The Tunney Act itself grants the Court wide discretion to
undertake any procedures it ``may deem appropriate'' in
making its public interest determination. 1 5 U.S.C. * 1 6(0(5).
This includes using evidence from another proceeding. See American
Tel. & Tel. Co., 522 F. Supp. at 136. As the court noted in
AT&T, ``[i]n a Tunney Act proceeding the Court is not
limited by the rules of evidence but may take into account facts and
other considerations from many different sources.'' Id. at 136
n. 7 (emphasis added). In that case, the court relied on a report by
the Antitrust Subcommittee of the House Committee on the Judiciary,
which had conducted an investigation of the matter, to fill in gaps
left in the court record. Id. at 136. Ira court can
[[Page 28226]]
weigh an evidentiary record compiled by the Congress, it surely can
weigh an evidentiary record of its own creation in a related
proceeding. \50\
---------------------------------------------------------------------------
\50\Although the circumstances in which the AT&T
court considered the subcommittee's report are different from those
here, the Tunney Act clearly allows this Court to rely on evidence
from a variety of sources. The legislative history of the Act makes
clear that Congress did not intend to limit the techniques a court
could use to make its public interest determination. See 1974
U.S.C.C.A.N. 6535, 6539 (quoting S. Rep. No. 93-;298, at 6
(1973)) (``Section 2(f) sets forth some techniques which the
court may utilize in its discretion in making its public interest
determination. It is not the intent of the Committee to in any way
limit the court to the techniques enumerated.'')* Indeed,
Congress anticipated that by giving trial courts wide discretion to
collect evidence and conduct procedures in the way they saw fit,
courts would be able to adduce the necessary information in the
least complicated and most efficient manner possible* See id.
(``The Committee recognizes that the court must have broad
discretion to accommodate a balancing of interests... It is
anticipated that the trial judge will adduce the necessary
information through the least complicated and least time-consuming
means possible.'').
---------------------------------------------------------------------------
The Court is currently overseeing a wide range of discovery,
both written and oral, in the remedial proceeding. Testimony will
presumably be taken from a host of witnesses that will establish,
among other things: how Microsoft deals with OEMs, including how
various Microsoft practices limit OEM flexibility in configuring the
desktop; \51\how Microsoft has used the commingling of code, and
other forms of binding its middleware to the OS, to reinforce the
applications barrier to entry; how Microsoft has used discriminatory
and anticompetitive licensing agreements to limit the distribution
and use of rival products; how Microsoft's illegal conduct has
worked to destroy Java; how Microsoft's .Net initiative repeats the
illegal monopoly leveraging tactics it successfully used to decimate
Netscape; how Microsoft's concealment of APIs decades the
performance of non-Microsoft products and services; and how
Microsoft has manipulated industry standards and developed
proprietary standards and formats that limit the interoperability of
competing products.
---------------------------------------------------------------------------
\51\As we note above, the OEMs appear understandably
reluctant to testify in the remedial proceeding* This is all the
more reason to use a Special Master (or other procedural device) to
ascertain confidentially their views of the PFJ's provisions and the
likely effectiveness of those provisions. See supra note 47 and
accompanying text.
---------------------------------------------------------------------------
This evidence, which will be presented during the Court's
remedial hearing later this Spring, will form the basis on which the
Court crafts its remedy in the ongoing litigation. It is our view
that this evidence will affirmatively demonstrate why the LSRP, and
not the PFJ, fulfills the mandate of the Court of Appeals and
comports with well settled antitrust law. By the same token, it will
also demonstrate why the PFJ fails to redress Microsoft's illegal
behavior in a manner consistent with tile public interest.
Because many of the questions the Court faces in this proceeding
mirror those in the remedial proceeding, the Court should take the
record evidence from the remedial proceeding into account in
conducting its Tunney Act review of the PFJ. Simply put, by
utilizing this evidence, the Court will adduce the information it
needs to make its ``public interest'' determination in a
manner that encourages greater efficiency and avoids unnecessary
delay or duplication.
CONCLUSION
The Court should refuse to find that entry of the PFJ is
``in the public interest.'' The PFJ does not unfetter the
market from Microsoft's dominance; it does not terminate the illegal
monopoly; it does not deny to Microsoft the fruits of its statutory
violations; and it does not end Microsoft's practices that are
likely to result in monopolization in the future. More specifically,
the PFJ does not even attempt to address, let alone end, Microsoft's
illegal binding and bundling practices that have done so much to
fortify its OS monopoly and to harm desktop competition. And its
limited provisions are so filled with loopholes and exceptions that
they are rendered ineffective. At the very least, the Court should
refuse to approve the PFJ until after it has concluded an extensive
review, including an inquiry into whether the PFJ's
provisions--;as implemented by Microsoft since last
year--;are showing signs of effectively restoring competition to
the marketplace. The Court could conduct an evidentiary hearing,
appoint a Special Master, and/or rely upon the record that will be
adduced in the trial on the Litigating States'' Remedial
Proposal to meet its evidentiary needs.
In the end, it is the proposal of the litigating
states--;not the PFJ--;that meets the public interest
standard. The Court should reject the PFJ, and impose a strong,
effective and forward-looking remedy that addresses Microsoft's
proven anticompetitive conduct in a manner consistent with the
mandate of the Court of Appeals and the nation's antitrust laws.
Dated: January 28, 2002
Paul T. Cappuccio
Edward J. Weiss
AOL TIME WARNER, Inc.
75 Rockefeller Plaza
New York, New York 10019
(212) 484-;8000
Respectfully submitted,
--;?
Ronald A. Klain
Benjamin G. Bradshaw
Jessica Davidson Miller
O'MELVENY & MYERS LLP
555 13th Street, NW, Suite 500 West
Washington, DC 20004-;1109
(202) 383-;5300
Randall J. Boe
Laura E. Jehl
AOL, Inc.
22000 AOL Way
Dulles, Virginia 20166
(703) 265-;1000
ATTORNEYS FOR AOL TIME WARNER, INC.
MTC-00028284--;0066
ATTACHMENT A
MTC-00028284--;0067
Microsoft's Tying Strategies To Maintain
Monopoly Power !n Its Operating System
(Civil Actions No. 98-;1232 and 98-;1233 CKK)
Submitted on behalf of AOL Time Warner by Frank Mathewson and
Ralph A. Winter Charles River Associates Inc.
Suite 1501
80 Bloor Street West
Toronto, Ontario M5S 2V1
Canada
January 28, 2002
MTC-00028284--;0068
TABLE OF CONTENTS
INTRODUCTION--;1
MICROSOFT HAS MANY TECHNIQUES AT ITS DISPOSAL FOR TYING MIDDLEWARE
TO WINDOWS--;2 ECONOMIC ANALYSIS SHOWS THAT MICROSOFT HAS
SUBSTANTIAL INCENTIVES TO USE TYING TO SUSTAIN ITS OPERATING SYSTEM
MONOPOLY, HARMING CONSUMERS AND COMPETITION--;4
A. As a general matter, absent legal constraints, Microsoft
possesses substantial economic incentives to integrate its products
in a manner that reinforces its OS monopoly--;5 (1) Microsoft
ties its applications to its operating system as a way of sustaining
the applications barrier to entry--;5
(2) Microsoft ties applications to its operating system as a way of
deterring direct challenges to Windows'' position as the
dominant platform for software developers--;7
(3) Microsoft has incentives to tie to achieve a monopoly in
complementary applications as insurance against possible future
erosion of its OS dominance--;9
(4) Microsoft's operating system also has durable-goods qualities
that create further anti-competitive incentives for tying--;12
(5) Microsoft's anti-competitive tying incentives are mutually
reinforcing and are manifest in strategies that lack any competitive
justification--;14
B. Microsoft's anti-competitive incentives are particularly powerful
in the markets for browsers and streaming media, as well as the
adjacent markets for content-encoding, digital rights management, e-
commerce, and convergence--;15
C. The theorized benefits of product integration that may exist in
some cases do not apply to the markets at issue in this
case--;19
(1) The economics of software markets cast doubt on Microsoft's
efficiency arguments for integration of its own browser and media
player with the OS--;20
(2) Contrary to Microsoft's claims, issues of pricing and innovation
provide further evidence that Microsoft's tying harms the
marketplace and consumers--;22
GIVEN THE INCENTIVES, HISTORY, AND EVIDENCE IN THIS CASE, THE
CONCLUSION IS THAT MICROSOFT HAS ENGAGED, AND IS ENGAGING, IN ANTI-
COMPETITIVE TYING IN ORDER TO PROTECT AND STRENGTHEN ITS OPERATING
SYSTEM MONOPOLY--;24
A. Microsoft's options, incentives, and history create a strong
presumption that Microsoft's tying harms OS competition and
consumers--;24
B. The evidence indicates that Microsoft is anti-competitively tying
the browser and the media player with its operating system--;25
[[Page 28227]]
CONCLUSION--;28
APPENDIX: CURRICULUM VITAE OF FRANK MATHEWSON--;1
APPENDIX: CURRICULUM VITAE OF RALPH WINTER--;1
INTRODUCTION
We have been engaged in this case as professional economists \1\
to assess the economic incentives and effects of Microsoft's tying
practices. Our specific charge is to determine whether Microsoft is
tying middleware applications to its operating system
(``OS'') in a manner that protects and reinforces its
monopoly power in the market for operating systems. Middleware is
software that runs on the OS platform, i.e., that calls on the basic
operating system through application programming interfaces
(``APIs'') of the OS in order to invoke functions of the
OS, but which in turn contains its own published APIs that allow
higher-level applications to run on the middleware itself.\2\ To
execute our mandate, we have reviewed the economic incentives at
play in this market, conducted interviews with various software
developers, and studied the key documents in this case, including
the Proposed Final Judgment and the Competitive Impact Statement of
the U.S. Department of Justice, the submissions made on behalf of
Microsoft, and the Comments Of AOL Time Warner On The Proposed Final
Judgment.
---------------------------------------------------------------------------
\1\Mathewson is a Professor of Economics and Director of
the Institute for Policy Analysis at the University of Toronto and
Winter is a Professor of Economics and Finance at the University of
Toronto. Both are Senior Consultants to Charles River Associates.
Our curriculum vitae are attached as appendices to this report.
\2\Middleware and operating systems, i.e., any software
which exposes APIs so that higher level applications run on top of
the software, are together referred to as platform software.
---------------------------------------------------------------------------
Based on our analysis, we conclude that Microsoft has tied its
middleware applications to its Windows operating system in ways that
preserve and reinforce its monopoly power in the market for
operating systems on PCs, damaging competition and harming
consumers. The anti-competitive use of tying strategies to maintain
a monopoly in this manner is, in our understanding, a violation of
Section 2 of the Sherman Act. We conclude that market forces alone
do not discipline Microsoft to limit the integration of middleware
code into its OS or the bundling of middleware products with its OS
to efficiency-enhancing levels. Rather, Microsoft has the ability to
tie in ways that lack pro-competitive justification, and in any
event has incentives to use tying strategies to integrate
applications into its OS more aggressively than justified by
efficiency.
We begin in the next section with a brief description of the
tying strategies at Microsoft's disposal. We then demonstrate
through economic analysis that Microsoft has substantial incentives
to tie its middleware products to its monopoly OS to reinforce and
entrench that monopoly. Given these incentives, Microsoft's history,
and the evidence in this case, we conclude that Microsoft has
engaged, and is engaging, in anti-competitive tying, and is doing so
in a way that maintains its OS monopoly, to the detriment of
consumers and competition.
MICROSOFT HAS MANY TECHNIQUES AT ITS DISPOSAL FOR TYING
MIDDLEWARE TO WINDOWS.
Microsoft has various means of binding its middleware products
to the Windows operating system. Before describing these practices
and the ways in which Microsoft uses them to reinforce its OS
monopoly, we explain the general concept of middleware and why
Microsoft's licensing of middleware with its OS in the Windows
package constitutes tying.
Middleware is exemplified by products such as Internet browsers,
including Microsoft's Internet Explorer (``IE'') and
Netscape's Navigator, media players, instant messaging, and
middleware applications platforms such as Java. By a strategy of
tying middleware to the OS, we mean any constraint that Microsoft's
operating system be bought with (or bound to) Microsoft middleware
products, or any contractual or financial inducement to this end.
Microsoft has argued that various middleware applications,
especially IE and Windows Media Player (``WMP''), are
essential components of an integrated operating system rather than
distinct products, and that tying or bundling these products with
the core operating system therefore does not constitute tying.
Microsoft's argument is incorrect.
Middleware products, such as browsers and media players, are
sold in separate markets. Users can obtain Navigator or RealPlayer
without purchasing an operating system in the same transaction.
Users can also obtain IE or MSN Messenger without obtaining Windows.
Until Microsoft bundled WMP into Windows, users could obtain these
two products in separate transactions. Moreover, these products are
clearly sold by different suppliers. The Court cannot give serious
weight to Microsoft's argument that once WMP, for example, is
integrated into Windows, the media player ceases to be a separate
product: If this argument were accepted, then the mere fact that
Microsoft integrates application code into the operating system
would itself be a defense for its actions. In other words, tying, as
a means of reinforcing a monopoly position, would constitute its own
defense. The law, we suggest, cannot intend this.
Tying involves contractual arrangements whereby Microsoft puts
pressure on original equipment manufacturers (``OEMs'') or
end-users to acquire Microsoft applications as a condition of
acquiring Windows. It includes requirements that OEMs install
Microsoft applications, rather than applications developed by
Microsoft's rivals, and prohibitions on removing or uninstalling
those applications. It also includes financial inducements to adopt
Microsoft applications when Windows is purchased and installed. Each
of these requirements is enforced through Microsoft's coercive power
to harm non-adhering OEMs.
Tying also involves desiring the OS so that Microsoft's
applications are integrated into the OS code, leaving rival
applications unnecessary or even dysfunctional. This type of tying
includes: (a) basic integration of code; (b) efforts by Microsoft to
hinder disintegration; and (c) efforts to hamper the
interoperability of rival applications. Basic integration involves
providing, as part of the OS, services previously offered as stand-
alone applications. This could be done in a purely modular fashion
without the commingling of application code into the kernel of the
operating system. If done in this manner, the products can be easily
removed and replaced with competing products in a ``plug and
play'' fashion. Technological efforts that hinder
disintegration, however, have stronger anti-competitive overtones.
These include: commingling code in a manner that hampers, and
perhaps even bars, the replacement of the products or default
options; designing the OS so that Microsoft's applications are
chosen as default applications; making it difficult for OEMs or
users to replace the icons or launch sequences; and creating
utilities to ``sweep'' the Windows desktop and replace
non-Microsoft icons. Note that some of these forms of tying, such as
hampering rivals'' performance, entirely lack pro-efficiency
rationales, while all of them can be used in inefficient, anti-
competitive manners. The remainder of this paper demonstrates that
Microsoft has strong incentives to engage in such anti-competitive,
inefficient bundling, and that it is doing so in a manner
detrimental to competition with the goal of maintaining its extant
monopoly in operating systems.
ECONOMIC ANALYSIS SHOWS THAT MICROSOFT HAS SUBSTANTIAL
INCENTIVES TO USE TYING TO SUSTAIN ITS OPERATING SYSTEM MONOPOLY,
HARMING CONSUMERS AND COMPETITION.
Microsoft has maintained that its tying is efficient and that it
should be allowed to determine the level of integration of
applications into its operating system. Microsoft argues that it
should be free to tie its products together in any fashion it sees
fit, as this type of product integration is efficient and promotes
innovation with eventual consumer benefits. These arguments
generally claim to defend Microsoft's intellectual property, and are
expressed in terms of the general advantages of product integration,
rather than defining specific benefits to users from Microsoft's
practice of tying particular middleware products, such as IE or WMP,
into the Windows package.
Microsoft's claim amounts to the belief that market forces alone
achieve the optimal degree of product integration and separation
without any further regulatory or legal constraints. As a matter of
economic theory, this argument fails to take note of Microsoft's
position as a dominant producer in a market with substantial
barriers to entry. For this general market-forces argument to be
valid, Microsoft would need to demonstrate that competitive vigor in
the market will discipline Microsoft to engage only in tying that
enhances efficiency. But such complete reliance on market forces to
achieve efficiency, in turn, requires open entry, while the evidence
in this case has shown that there are significant barriers to entry
in the OS market. This leaves Microsoft in a position to exploit any
strategic and anti-
[[Page 28228]]
competitive motives to integrate. As a matter of market reality, as
we shall explain, the evidence demonstrates that Microsoft has
engaged in tying to an excessive degree, with the sole purpose of
achieving anti-competitive aims in general and OS monopoly-
preserving aims in particular.
With respect to the practices of tying middleware, Microsoft's
interests are not aligned with those of competition and consumers:
Microsoft can benefit without improving its product by using tying
strategies to reinforce and strengthen its existing OS dominance.
A. As a general matter, absent legal constraints, Microsoft
possesses substantial economic incentives to integrate its products
in a manner that reinforces its OS monopoly.
Below, we set forth four theories that explain why Microsoft's
practice of integrating its applications with the Windows OS helps
to maintain its OS monopoly, in a way that is detrimental to
consumers and competition. First, tying helps to sustain the
applications barrier to entry, and thus serves to enhance
Microsoft's OS dominance. Second, tying deters direct challenges to
Windows'' position as the dominant platform and thereby
maintains or enhances Microsoft's OS dominance. Third, tying
involves dynamic leveraging that permits Microsoft to achieve a
monopoly in complementary applications as insurance against any
possible erosion of the OS monopoly. Put another way, a monopolist,
such as Microsoft which produces a pair of perfectly complementary
products, aims to protect its full monopoly power by ensuring its
future monopoly in at least one of the complementary products.
Fourth, tying permits Microsoft to mitigate the competitive
constraints on its operating system monopoly provided by previous
releases of the OS. These four theories are not mutually exclusive;
each of them contributes to a full understanding of Microsoft's
anti-competitive conduct. And, to make matters worse, each of these
anti-competitive results is mutually reinforcing because of the
network effects operating between the applications sector and the
operating system market.
(]) Microsoft ties its applications to its operating system us a
way of sustaining the applications harrier to entry. Microsoft has a
general incentive to engage in anti-competitive tying to protect its
dominance in operating systems against the possibility of
competitive developments in applications markets. The first means by
which it accomplishes this is through enhancing the applications
barrier to entry\3\ The dominance of the Windows standard in a wide
range of applications, or in a few particularly important
applications, makes entry into the operating system market more
difficult because an entrant has to offer both a new operating
system and a full set of applications, or somehow rely on the chance
that applications ,,,,,ill quickly develop once the new operating
system becomes available. In this way, an entrant faces a
``chicken-and-egg'' problem because of the indirect
network effects in the operating system: the entrant could not
succeed without a set of applications available to purchasers of its
operating system; yet, few software developers would invest in the
development of new applications based on an operating system without
a large market share. This is referred to as the applications
barrier to entry. The dominance of Windows as a standard for
applications leads to the applications barrier to entry and growth
in the operating system market.
---------------------------------------------------------------------------
\3\See U.S. v. Microsoft, 84 F. Supp. 2d 9 (D.DC 1999)
(``U.S. Findings of Fact''), 36ndash;44.
---------------------------------------------------------------------------
Microsoft is able to sustain this barrier by exploiting a
collective action problem among buyers. When Microsoft ties by
supplying the OS with an application such as IE or WMP, users must
incur a series of costs to replace the application. These costs
include purchasing or downloading the substitute browser or media
player, installing the application, and incurring any uncertainty
associated with the possible compromise in the functional integrity
of the system. In an application market, buyers would collectively
be better off if each incurred the costs of purchasing from
competing suppliers, because doing so would ensure greater
competition in the future application market. However, Microsoft's
tying practices preclude this result.
Buyers'' purchase decisions with respect to either the
operating system or applications collectively affect the future
market structure because Microsoft will achieve dominance if most
buyers choose Microsoft products. Once Microsoft achieves dominance,
network externalities sustain this dominance so that the market
structure becomes a monopoly as a result of buyers'' previous
purchase decisions. The impact of each buyer's purchase decision on
the future market structure, however, is negligible. Moreover,
buyers do not take into account the impact of their purchase
decisions on other buyers. As a result, even a small disadvantage to
purchasing a competing product in the operating system or
applications markets is enough to make the individual buyer prefer
Microsoft's product.
The result is that buyers'' decisions make them
collectively worse off. The future dominance of Microsoft and the
higher prices faced by buyers are a result of their collective
decision to purchase Microsoft's applications. Microsoft exploits
this collective action problem and pursues dominance in the
applications markets through its tying practices. \4\
---------------------------------------------------------------------------
\4\In the economics literature, modem theories of anti-
competitive exclusion, including tying as exclusionary, are linked
by the theme that exclusionary contracts have an impact on
individuals outside an individual buyer-seller contract. See Dennis
Carlton and Michael Waldman (2001) ``The Strategic Use of Tying
to Preserve and Create Market Power in Evolving Industries,''
unpublished working paper; Eric Rasmussen et al., (1991)
``Naked Exclusion,'' American Economic Review 81 (5):
1137-;1145; Michael Whinston (1990) ``Tying, Foreclosure,
and Exclusion,'' American Economic Review 80(4): 837-;859;
and Philippe Aghion and Patrick Boulton (1987) ``Contracts as a
Barrier to Entry,'' American Economic Review 77(3):
388-;401.
---------------------------------------------------------------------------
(2) Microsoft ties applications to its operating system as a way
of deterring direct challenges to Windows position as the dominant
platform for software developers.
Microsoft's incentives for anti-competitive tying are
particularly strong in the case of applications that might allow for
the development of direct substitutes to the monopolized operating
system. A clear incentive for Microsoft to tie its IE browser with
Windows has been the threat that Netscape, either individually or
combined with Java software, could eliminate Microsoft's network
advantages in the operating system, by providing middleware (which
serves potentially as universal translation support between any
application and any operating system) that would provide a competing
platform for software developers. This was a particular threat to
Microsoft's dominance in operating systems because it potentially
represented a platform/programming environment in which software
applications Could be developed without regard to the underlying
operating system. Middleware provides a layer of software between
applications and the operating system and can accommodate a new
operating system with a change in a single set of code. Without
middleware, the success of a new operating system would depend on
the development of new code by every application developer. This
incentive also explains Microsoft's initiatives to develop a
Microsoft version of Java in an attempt to undermine the universal-
translator aspect of Java.
Some economists have argued that the backwards compatibility of
Microsoft's version of Java, i.e., the ability of all general Java
applications to run on Microsoft's version, rules out the hypothesis
that Microsoft designed its version of Java for the purpose of
stifling the potential threat to its dominance in operating systems.
\5\ This argument is wrong in its static assumption about
compatibility. Given the history of the industry, the fact that
Microsoft's initial version of Java was universally compatible with
Java applications does not lead one to believe that if Microsoft
dominated not just browsers but also Java in the future, it would
continue to assure both compatibility of applications and free
distribution of the pair of middleware products. Were Microsoft to
establish dominance in the potential browser-Java bypass of its
operating system dominance, why would it allow the bypass to be
freely and effectively available? The concerns expressed by
Microsoft's executives about the risks of
``commoditization'' of the operating system are well
known. \6\ Middleware generally has the potential to act to varying
degrees as a universal translator
[[Page 28229]]
between an operating system and specific applications, because (as
the name suggests) middleware intermediates between the operating
system and applications: it invokes calls through an operating
system's APIs and in turn issues its own APIs to applications. To
accommodate a new operating system, instead of each application
requiring re-coding for compatibility, only the ``bottom
half'' of the middleware application must be reprogrammed. If
twenty applications run on top of a particular middleware program,
for example, compatibility with a new operating system could be
achieved by reprogramming the middleware program instead of
reprogramming each application. Middleware thus mitigates the
indirect network effects of the operating system--;and could
potentially diminish the dominance of any operating system that
these network effects support.
---------------------------------------------------------------------------
\5\``Microsoft's Java virtual machine ... allowed
for all programs written for the original (``pure'') Java
to be run on it. Thus it preserved backward compatibility with the
original Java that ran on all operating systems. Because of that,
Microsoft's actions were not anti-competitive.'' Nicholas
Economides, ``The Microsoft Antitrust Case,'' Journal of
Industry, Competition and Trade.'' From Theory to Policy, March
2001, p. 20 of working paper version.
\6\In a 1995 memo to his ``Executive Staff and
direct reports,'' Microsoft CEO Bill Gates stated that Netscape
was ``pursuing a multi-platform strategy where they move the
key API into the client to commoditize the underlying operating
system.'' (5/26'95 ``The Internet Tidal Wave,'' PI.
Ex.20, p. MS98 0112876.3.)
---------------------------------------------------------------------------
(3) Microsoft has incentives to tie to achieve a monopoly in
complementary applications as insurance against possible future
erosion Of its OS dominance.
A common response to the argument that monopolies can profit
through leveraging into a second market is that monopoly profits can
be collected only once: a tie into a complementary market with an
increase in the price of the tied good by a dollar will reduce the
demand price of the first good by a dollar. According to this
response, there is no incentive to leverage. In the simplest, static
world in which there are no industry dynamics, no uncertainty, and
no variation in consumer demand, this ``one-monopoly
theory'' is correct. This theory, however, fails when there is
uncertainty about the preservation of monopoly. If the initial
monopoly is at some risk, then an incentive for leverage arises as
insurance against the loss of monopoly profits. In the event that
the first monopoly fails and the second succeeds, the monopolist
will have preserved a monopoly in at least one of the markets. \7\
Consistent with the common response, having a monopoly in only one
of the pair of markets is sufficient to collect the full monopoly
profits. If either market's monopoly is uncertain, the monopolist
has an incentive to create monopolies in both markets, and thus
increase the likelihood of being able to obtain monopoly profits in
at least one market.
---------------------------------------------------------------------------
\7\This idea is developed formally in J.P. Choi and C.
Stefandis (2001), ``Tying, Investment and the Dynamic Leverage
Theory,'' The RAND Journal of Economics 32( 1): 52-;74.
---------------------------------------------------------------------------
If Microsoft fears for the longevity of its operating system
monopoly, or believes that operating systems are in a mature market
with limited prospects for growth, it will have strong incentives to
make minor sacrifices to Windows functionality in order to obtain
dominance in high-growth markets. This is particularly true if the
sacrifices (such as damaging relationships with OEMs and consumers
by forcing them to accept an inferior browser or media player) have
negligible effects on demand for Windows. The greater the threat to
its OS dominance in the future, the more incentive Microsoft has to
establish a dominant supplier position in an application market,
such as the browser or media player market. To take a hypothetical
future contingency, if the development of middleware means that the
future OS market turns out to be more competitive than the current
market, then Microsoft's actions to achieve dominance in the
application market will leave it with dominance in one product of a
pair of complementary products, rather than dominance in neither.
Microsoft's incentive to establish dominance in key applications is
thus strengthened by the fact that Microsoft's monopoly in the
operating system market is not guaranteed to always be airtight. \8\
---------------------------------------------------------------------------
\8\See U.S. Findings of Fact 33-;35,
60-;64.
---------------------------------------------------------------------------
The gains from leveraging are especially strong where network
effects are present in applications markets or these markets
otherwise promise large potential growth in revenues for any firm
that establishes early dominance. \9\ Network effects have three
implications that make Microsoft's tying practices particularly
effective in reinforcing its OS dominance. First, in the early
stages of the market's development, purchasers will be on alert for
signals of which standard will eventually become dominant, in order
to reduce their exposure to later costs of converting to the
dominant standard. Tying a new application with the dominant Windows
operating system will send strong signals to purchasers that will
help to ``tip'' the market toward Microsoft's favored
products, particularly given Microsoft's history. Second, a feedback
loop will cause both the tying and Microsoft's dominance to steadily
accelerate. As Microsoft begins to gain a substantial share in an
application market, it will be able to engage in more overt forms of
tying, as customers grow to accept even inconvenient results from
Microsoft's ant/- competitive behaviors (such as poor
interoperability with rivals) because of the reinforcing network
effects. This, in turn, will accelerate the tipping toward Microsoft
dominance. Third, once Microsoft's dominance is established,
proprietary standards and continued tying will lock in this
dominance, not just on current production but on ``future
applications in the same functional space. While all of these
effects promote Microsoft's dominance in applications, it is the
feedback effect of this control over applications to reinforce the
OS dominance that is relevant for the matter at hand. Network
effects or network economies refer to the positive value that any
single user derives from the number of other users adopting the same
operating system. See U.S. Findings of Fact 39-;42
and 65-;66 for application to Microsoft. For a
general description of networks and positive feedback, see Carl
Shapiro and Hal Varian (1999) Information Rules Boston: Harvard
Business School Press, pp. 173-;225.
---------------------------------------------------------------------------
\9\It may appear that any preservation-of-monopoly theory
must Be applied narrowly to Microsoft's monopoly power in operating
systems. If this were the case, then the insurance theory of tying
just described would not apply, since this theory explains why tying
to establish dominance in a new market can be profitable because of
the profits that can be captured in that new market, instead of why
it is profitable to protect the monopoly in the operating systems
market.
---------------------------------------------------------------------------
The standard ``one-monopoly'' theory, however, tells
us that when there are two perfectly complementary products A and B,
a monopoly over either, or a monopoly on both, allows the identical
profits and results in the identical effects. (This theory holds in
a static framework that sets aside the other three theories that we
discuss.) With respect to an OS with a set of applications that are
virtually universally adopted by all PC users, a monopoly over the
OS alone is identical in its effect and in its incentives to a
monopoly over the set of applications alone or a monopoly over both
the OS and the set of applications. That is, there is only one
monopoly: the economic role of tying under the monopoly-insurance
theory is not creating a new monopoly, but rather preserving the
monopoly (the monopoly being at least one monopoly position in the
OS-applications pair). The monopoly-insurance theory thus explains
the anti-competitive use of tying to preserve a monopoly in
violation of Section 2 of the Sherman Act.
The monopoly-insurance theory of tying has the effect of
reinforcing Microsoft's monopoly position even if the preservation-
of-monopoly requirement of Section 2 of the Sherman Act is construed
narrowly to apply only to Microsoft's existing monopoly on operating
systems for PCs. The reason (discussed below) is that all of
Microsoft's incentives for tying applications to Windows are
mutually reinforcing. Even if Microsoft's incentive for tying were
primarily to insure a monopoly in the event that the Windows OS
monopoly failed in the future (the insurance theory), one effect of
the tying is to reduce the chance that the Windows OS monopoly
actually does fail, because of the strengthening of the applications
barrier to entry. The impact is preservation, though imperfect, of
Microsoft's monopoly in the operating system market.
Microsoft's operating system also has durable-goods qualities
that create further anti-competitive incentives for tying.
Part of Microsoft's argument that it should be free to
``innovate'' rests on the notion that an important source
of ``competition'' in selling new versions of Windows is
the existing stock of old versions of Windows.\10\
[[Page 28230]]
While it is true that the durable-goods aspect of the OS market
(i.e., the ability of consumers to retain their existing versions of
the OS instead of buying a new version) disciplines Microsoft, it
only does so in the sense that Microsoft earns fewer profits than it
would in a hypothetical world in which it were to lease its OS. The
claim that the OS market is, in fact, more competitive than this
hypothetical market does not weaken the claim that Microsoft's
position in the OS market is dominant and that its activities are
illegal.
---------------------------------------------------------------------------
\10\The District Court's Findings of Fact maintain that
the Windows leasing agreement prohibits the user from transferring
the OS to another machine so that ``there is no legal secondary
market in Microsoft operating systems'' ( 57). The
Findings of Fact then note (* 58) that there is a thriving illegal
market. To limit this, Microsoft advises OEMs that Microsoft will
charge a higher price for Windows to OEMs that do not limit the
number of PCs they sell without the OS pre-installed. One might
argue that the durable goods monopoly problem is eliminated by
Microsoft's refusal to allow OEMs to install (without penalty) old
versions of Windows. This is incorrect for two reasons: (i)
increases in the price of the new version of Windows will reduce
overall demand for new PCs, as users invoke the option to keep
existing PCs with the old version, and (ii) there is a retail market
for new versions of Windows software for installation on existing
PCs. Both (i) and (ii) provide channels through which the existing
stock of Windows software provides some competition for a new
version of Windows (i.e., it increases the elasticity of demand for
the new version). If the price of a new version is increased, the
demand for the new version is reduced because fewer consumers will
purchase new PCs as the price increase for Windows raises the price
of the overall package of the PC and the (mandated by Microsoft) new
version of Windows, and because some consumers who would have
purchased Windows to install on their old PCs will now refuse to do
so.
---------------------------------------------------------------------------
Moreover, this ``durable good monopolist'' feature of
the market contains an incentive for Microsoft to engage in illegal
bundling. The strategy of leasing as a means of escaping the durable
monopolist's dilemma is well established and has been thoroughly
analyzed by economists.\11\ Rather than selling the product into the
market in each period, if the monopolist seller of a durable good
can lease the product on a period-by-period basis, it can retain
complete control over the supply of the good into the market in each
period. This allows the monopolist to set monopoly prices in each
period instead of being constrained by the consumers'' option
to continue using the already-purchased stock (or version) of the
product. The monopolist who leases for a period can lease both
previous and current production together to achieve monopoly
profits; doing so eliminates the competitive discipline that would
otherwise occur as past sales re-enter current and future markets.
If Microsoft could move to a business plan of leasing rather than
selling software, it would completely eliminate competition from old
versions of the software: as Microsoft leases new versions of
software, it could retire leases on old versions. This would serve
to protect the monopoly power that Microsoft enjoys from its OS.
Tying can allow Microsoft to implement this leasing strategy so as
to avoid the durable good discipline. Specifically, tying the use of
the OS to some complementary transaction that can be leased, or
priced on a per-use basis--;rather than sold--;provides
Microsoft with the opportunity to collect a revenue stream that is
immune to the competitive discipline imposed by previous versions of
the OS.
---------------------------------------------------------------------------
\11\See Jeremy Bulow ``Durable-Goods
Monopolists,'' Journal of Political Economy 90(2):
314-;332 or Jean Tirole (1988) The Theory of Industrial
Organization, Cambridge: MIT Press, p. 81.
---------------------------------------------------------------------------
The escape from the durable monopolist's dilemma via leasing
thus creates another incentive for tying. Tying allows Microsoft to
move closer to the leasing outcome by facilitating the collection of
transaction fees based on current usage. \12\ The set of middleware
products that potentially puts Microsoft in the position of
collecting a fee on Internet transactions serves this role. These
products are IE, WMP, Microsoft's Digital Rights Management
(``DRAM'') software, as well as the Net My Services
initiative. The Digital Rights Management software, with WMP, will
initially support a market for music and video products. The
combination of these middleware applications, enabling the Microsoft
e-commerce network, will then support the transition to Internet
sales transactions of a broad variety of products. As Microsoft
begins to shift its revenue structure from Windows sales to Internet
transaction fees, it will seek to control the key Internet access
choke points such as browsers, media players, and digital rights
management. Tying facilitates this control. Moreover, Microsoft can
directly charge usage fees for its media player software that it
cannot charge for the OS. While the durable-goods monopoly theory of
Microsoft's tying incentives can be seen most directly as a theory
of the incentive to dominate applications that facilitate a leasing
business plan, one important impact of dominating these applications
is to preserve Microsoft's dominance in the market for operating
systems. The impact, in other words, is a preservation of
Microsoft's OS monopoly.
---------------------------------------------------------------------------
\12\See Jeremy Bulow (1982:330) who suggests that a
durable-goods monopolist may be able to achieve the leasing result
through extending its monopoly to service contracts; these are
analogous in principle to the application restrictions in the matter
at hand.
---------------------------------------------------------------------------
As an empirical matter, versions of Windows are converging in
their substitutability. This convergence of versions strengthens
tile durable-good monopolist incentive to tie in two ways. First, it
increases Microsoft's incentive to escape the durable-good
monopolist discipline on prices, since the easier it is to
substitute the current version of Windows with existing versions,
the stronger this discipline is. Second, there are, in principle,
two ways of leasing to escape tile durable-good monopoly discipline.
Microsoft could rent the OS or tie it to an application and collect
the corresponding stream of revenues each time the application is
used. The converging substitutability of Windows'' versions
renders the former more difficult, increasing the incentive to
escape the durable-good discipline by tying applications. Thus, the
increasing substitutability among sequential versions of Windows,
even if later versions are superior, reinforces Microsoft's
incentives to extend its monopoly to dimensions, such as Internet
sales, in which it can charge a rig \13\ or rent the application.
---------------------------------------------------------------------------
\13\The term ``rig'' or ``vigorish,''
a term used by Microsoft, refers to a gambling house's
``cut'' on all bets placed in the establishment. See Allen
Myerson, Rating The Bigshots: Gates vs. Rockefeller, The New York
Times, May 24, 1998, at 4 (``The Gates crowd speaks ... of
collecting a ``vigorish'' or ``vig'.... Now Microsoft
wants to collect a rig on Internet access too.'').
---------------------------------------------------------------------------
(5) Microsoft's anti-competitive tying incentives are mutually
reinforcing and are manifest in strategies that lack any competitive
justification.
The incentives for anti-competitive tying that we discuss are
mutually reinforcing because of the network effects operating
between the applications sector and the operating system market.
Achieving dominance in applications (through tying) strengthens the
dominance of the OS, because buyers in the OS market are more
assured of available applications; the greater dominance in the OS
market in turn feeds back into greater dominance in applications,
since the tying strategies take the form of imposing an artificial
advantage relative to applications of the dominant OS supplier. The
greater Microsoft's share across all applications markets, the
greater the applications barrier to entry. Greater shares in
applications markets create a feedback effect of even greater
dominance in the OS market. The source of this feedback effect is an
``indirect network effect'': the greater the penetration
of any operating system, the more applications will be written to
it, and consequently, the more valuable the operating system will be
``to any user. Since the OS monopoly is not perfect, Microsoft
will therefore take advantage of anti-competitive opportunities to
generally strengthen the applications barrier to entry. As a general
principle, therefore, any extension of Microsoft's monopoly to a set
of important applications reinforces its monopoly in operating
systems.
Microsoft has a clear incentive to engage in tying in the form
of hampering rival applications and coding its own applications to
be defaults to the detriment of consumer choice. This type of tying
has a negligible negative effect on the demand for Windows, and by
tipping high-growth markets, could provide Microsoft with long-term
profits. Given that the Windows source code is both complex and
proprietary, Microsoft can engage in this type of tying
surreptitiously. For example, Microsoft can alter the algorithms
that set ``favorites'' in folders and task bars so that
Microsoft-preferred applications and web sites are used more
frequently. In addition, Microsoft can cause subtle performance
problems for rival applications in Windows environments. This type
of tying, however, is consistent only with anti-competitive
behavior--;no efficiency benefits result from ham-ting rivals or
setting Microsoft options as defaults.
B. Microsoft's anti-competitive incentives are particularly
powerful in the markets for browsers and streaming media, as well as
the adjacent markets for content-encoding, digital rights
management, e-commerce: and convergence.
In markets with network effects and perceived similarity in
product functions, directional changes in market shares can
``tip'' the market toward a dominant outcome because
consumer expectations as to which format will dominate are self-
realizing. In other words, the expectation on the part of consumers
that a particular format will dominate leads each consumer to choose
that format because of the rational concern that other formats will
not be supported--;accelerating the dominance and confirming the
expectations of consumers. Consider the browser and the media player
as examples. In the browser market, Microsoft has achieved the
dominance that it sought, and its monopoly power in the OS
continues. These are related: browser dominance reinforces OS
monopoly power.\14\ The connection is that browser dominance
[[Page 28231]]
increases the applications barrier to entry and simultaneously
removes the direct middleware threat posed by Netscape. Both of
these effects in turn serve to increase the demand for the Windows
OS through network effects as buyers anticipate continued dominance
of Microsoft formats in both the operating system and applications
markets; the two effects thus reinforce the dominance of Windows OS.
---------------------------------------------------------------------------
\14\See U.S. Findings of Fact 68-;72.
---------------------------------------------------------------------------
Now that Microsoft has effectively achieved dominance in
browsers, and through this reinforced its dominance in operating
systems, the stage is set for applying the same tactics to markets
for other applications. The media player market represents an
important current market in which Microsoft's anti-competitive
strategies are at play. In the media player market, Microsoft's
first incentive for tying is to protect its dominance in the market
for operating systems by deterring the development of new middleware
platforms. Streaming media players will be essential for Internet
browsing in the future because of their ability to enhance Internet
content rendering under bandwidth constraints. If Microsoft achieves
dominance in the media player market (and as noted above, the
``tipping point'' argument suggests that a trend to
dominance can quickly translate into a highly dominant market
share), any entrant into the operating system market would also have
to provide a media player compatible with the WMP format. For this
reason, the applications barrier to entry incentive is especially
powerful for streaming media players. Rival operating systems will
be unable to provide a functional (i.e., Windows Media Audio-
compatible) media player since the Windows Media Audio format is
proprietary and Microsoft refuses to universally license it. \15\
Because compatibility with streaming media is vital to future
operating systems, Microsoft's dominance over operating systems will
be ensured. The observation that Microsoft licenses the software for
playing downloaded media, but not the software for streaming media,
suggests that Microsoft is strategically aware of the profit-
enhancing power of retaining exclusive property rights on media
streaming software.
---------------------------------------------------------------------------
\15\Note that licensing at a monopoly royalty would have
a similar effect of foreclosing competition.
---------------------------------------------------------------------------
To elaborate: with respect to other applications, an entrant
into the OS market could--;at least in theory- provide an OS
plus a set of applications. However, even this potential entry
strategy is not available in the case of the media player
application, because the use of a media player by a user depends not
just on products that could be provided by the new entrant, but on
the proprietary formats chosen by Internet sites using media player
software. In this sense, the provider selection of Microsoft's
proprietary format creates a content-encoding barrier to entry for
streaming media players. Again, this reinforces Microsoft's monopoly
power over the OS market.\16\
---------------------------------------------------------------------------
\16\Microsoft's action with respect to inducing media
content providers to code exclusively with Microsoft's proprietary
formatting (in Windows Media Audio) is analogous to Microsoft's
attempt in the browser market to induce Interne/content and services
providers to optimize their content for its Internet Explorer
software instead of the competing browser of Netscape. See U.S.
Findings of Fact 311,328, and 337.
---------------------------------------------------------------------------
An additional anti-competitive incentive for dominating an
application market is to secure a monopoly position in at least one
product in the application/OS pair in order to achieve monopoly
profits even in the event that the OS dominance is not sustained.
This is discussed above in Section III.A.3. The possibility that the
OS dominance is not sustained means that the joint monopolist could
not necessarily collect the maximum profits through the OS price
alone. Dominance of the application market would secure, or at least
increase the likelihood of, monopoly profits.
This incentive is particularly relevant to streaming media
markets. For example, the OS dominance could be at risk as consumers
move to handheld devices for computing and accessing the Internet
that do not require Windows OS. Presumably, however, these customers
will still wish to play music and see videos on such devices. To the
extent that WMP and its accompanying format achieve dominance for
streaming media, Microsoft will maintain monopoly power in the pair
of products consisting of the OS plus the media player. (Recall that
the essential measure of monopoly in the markets for a pair of
complementary products is dominance in at least one of the
products.) Thus, streaming media players and formats hold the
potential for Microsoft to maintain its original monopoly.
Additionally, significant gain accrues ``to Microsoft if
its DRM technology dominates the related market for audio and video
files. Using encryption technology, DRM technology permits only
users with licenses to play the packaged file. The license has a key
to unlock the encryption. Should a user without a license attempt to
play the file, the application initializes with an application that
permits the user to acquire the license. Applications with DRM
technology and Windows Media Device Manager enable the use of WMP on
devices other than conventional desktop computers. Since market
participants will tend to limit their investments to the likely
dominant standard, Microsoft can easily become the sole provider of
DRM solutions. Moreover, this will be a critical market for
Microsoft, since users will require licenses for downloading, and
content providers require certificates for encryption. The
alternatives of mutual interoperability or even open standards are
equally plausible conceptually, but not in Microsoft's interests.
Microsoft thus has incentives to use tying to ensure that its DRM
solution remains proprietary and becomes dominant. Microsoft can
ensure this outcome by making its media player format the format of
choice for both users and content providers, and tying WMP to
Windows ensures this choice. Once again, this creates a content-
encoding barrier to entry that permits Microsoft to maintain its
monopoly power in the pair: OS plus WMP as an application. Because
of the durable-goods nature of Microsoft's OS monopoly, as described
in Section III.A.4 above, Microsoft has additional incentives to tie
streaming media technologies to the OS. Indeed, the greatest value
for locking in the dominant streaming media and DRM formats may be
the rig that Microsoft hopes to collect from Internet transactions.
\17\
---------------------------------------------------------------------------
\17\Microsoft has already established general strategies
for obtaining control over e-commerce standards.
These connections are the Microsoft Passport, .Net, and .Net My
Services initiatives.
---------------------------------------------------------------------------
Dominating the media player format so as to collect a vig on
transactions would position Microsoft to collect transactions
revenue that may well exceed revenues available from Windows
software licenses alone--;even if Microsoft's dominance of the
OS market is secure. As we discussed in Section III.A.4, monopolists
of durable goods recognize that past sales constitute future
competition (here, older versions of Windows compete with current
and future versions of Windows). The monopolists face a competitive
constraint against increasing prices even in the absence of any
significant rivals. Such monopolies naturally seek ways to
circumvent the constraint. In the case of Windows, the constraint is
potentially circumvented by the collection of the rig on
transactions.
What is the link between dominance in operating systems,
streaming media, digital rights management, e-commerce, and
convergence? Microsoft ,,,,'ill attempt to use its dominance in any
of these markets to increase the use of Microsoft-favored products
in all of these markets. In contrast to the potential situation
where different players are strong in each market, Microsoft will
leverage its dominance in any market to strengthen its position in
all of them. Microsoft's incentive e to do this lies in the many
revenue streams that it currently forgoes. For example, Microsoft
does not currently charge web sites for the use of Windows media
formats. If Microsoft establishes dominance in the media player
market, as it translates to dominance in e-commerce hosting,
Microsoft will no longer have any constraint on fully exploiting
this revenue stream. Once again, this links back to the original
dominance in Microsoft's OS. All of these applications are mutually
reinforcing and serve to preserve the monopoly power that accrues
from packaging Microsoft's OS with complementary applications.
C. The theorized benefits of product integration that may exist
in some cases do not apply to the markets at issue in this case.
As a theoretical matter, of course, in many transactions,
purchasers would prefer to buy bundles of products and services.
Purchasers of glass prefer to have borates included, drivers prefer
to have steering wheels with their cars, and purchasers of shoes
typically prefer to have laces included. The relevant question here
is whether computer applications are similar to those
examples--;i.e., whether browsers and other middleware such as
streaming media players are ``mere inputs'' into the
overall ``Windows experience.''
The economics of software markets cast doubt on Microsoft's
efficiency'' arguments
[[Page 28232]]
for integration of its own browser and media player with the OS.
As discussed above, many forms of tying have no efficiency
justification. Contractual provisions limiting the acceptance of
rival technologies, or efforts to redesign code to harm
rivals'' performance, create economic loss. As further
discussed above, Microsoft has these forms of tying at its disposal,
incentives to use them, and a historical record of using them.
Microsoft's claims regarding the efficiencies of its contractual
tying--;i.e., that it reduces consumer time costs and confusion
to have a set of default options provided with a personal computer
``out of the box''--;confuse the benefit to consumers
of having a browser and its media player bundled along with the OS,
with the benefit of having Microsoft's choice of applications
bundled with the OS. The efficiencies that come with providing an
integrated package of an OS and various applications are not
specific to Microsoft's applications. In a market where OEMs were
free to offer whichever packages of software consumers desired
(e.g., Microsoft Windows with RealPlayer and IE, or Microsoft
Windows with WMP and Netscape), the market would provide those
varieties of packages preferred by consumers. The market would
respond fully to the efficiencies associated with the purchase of a
full package of hardware, OS, and software applications, and in
addition, the market would be free to offer the variety that
consumers demanded.
Our analysis supports the hypothesis that Microsoft's tying of
IE and WMP and its efforts to gain DRM dominance are not driven by
efficiency concerns. Although selection of some defaults is
necessary on each PC, there appear to be no engineering efficiencies
to the integration of the choice of default into the OS. To the
contrary, choice and market competition (and consequently,
efficiency) suffer when knowledgeable OEMs (who act as informed
agents of consumers) face artificial barriers to playing that role,
such as when Microsoft commingles code or makes Microsoft
applications difficult to permanently remove as default settings. By
designing system software to hamper the installation or operation of
rival software suppliers, Microsoft reinforces the applications
barrier to entry; the impact is a strategic reduction in competition
and a reinforcement of Microsoft's OS monopoly.
Additionally, the usual arguments made to justify integration in
other markets are largely inapplicable to software application
markets. It is often argued that integration occurs (i) to reduce
transaction, distribution or production costs, or (ii) to increase
the value of the final product.
The argument that transaction and assembly costs justify
integration does not apply to major software applications. For
example, consumers want to purchase some integrated packages of
complementary products such as functioning automobiles because
separate purchases of steering wheels, engines, dashboards, seats,
etc. would impose enormous transaction and assembly costs. By
contrast, software markets allow assembly at low cost even without
integration, provided that monopolists are legally prohibited from
impairing interoperability. With OEMs acting as purchasing and
assembly agents for end-users, it is no more efficient for Microsoft
to create OS-and-application bundles than for multiple OEMs (or
third-parties who can then license such bundles to OEMs) to create
those OS-and-application bundles desired by end-users.
Forced integration of particular software brands does not
increase value. Instead, it causes an efficiency cost to the extent
that end-users value the product variety entailed in the variety of
inputs. The value of variety is lost with integration. Steering
wheels in cars are typically undifferentiated commodities that
comprise a trivial portion of the value of the final product. Thus,
even though a consumer could replace the steering wheel with limited
effort, there is little reason to do so because a different steering
wheel is unlikely to improve the performance of the overall product.
By contrast, technological development in software applications
markets means that different applications can differ substantially
in what they deliver to consumers. Loss of product variety as a
result of integration can be costly.
(2) Contrary to Microsoft's claims, issues of pricing and
innovation provide further evidence that Microsoft's tying harms the
marketplace and consumers.
Microsoft has argued that the extension of monopoly power across
a set of complementary products may produce consumer benefits if the
monopolist charges lower prices than would be charged if independent
monopolists were to separately produce two or more complementary
products. In the latter case, each independent monopolist would
raise prices higher than the level that would maximize the combined
profits of all the monopolists. Thus, according to this theory,
consumers benefit from Microsoft's monopoly leveraging through lower
prices.
This theory imagines a static world in which innovation and
entry are non-existent, and firms simply set prices to maximize
profits, given unchanging demand and unchanging technology. The
practical implications of the theory for the real world of rapidly
changing technology and potential dynamic competition (as opposed to
monopoly positions that are airtight) are minimal. In an economic
theory that incorporates industry dynamics, strategies taken by a
dominant firm to eliminate a firm in a complementary market remove a
potential rival or entrant in the primary market. In the reality of
software markets, this anti-competitive effect clearly overwhelms
any theoretical, static price effect: innovation and dynamic
competition thus are, and should be, the focus of the Microsoft
case. The driver of consumer benefit in these markets is innovation:
over the past ten years, while prices of applications have
fluctuated only moderately, the performance of applications has gown
dramatically. New applications, such as browsers and media players,
have become important sources of consumer benefit, while
improvements in existing applications such as financial software
have yielded strong consumer benefits. In any analysis on the impact
of tying, the most important question is the impact on innovation,
not price. Tying harms innovation by preserving Microsoft's monopoly
position, protecting it against dynamic competition to the detriment
of consumers.
Microsoft argues that a single monopolist over two products has
greater incentives to innovate than two separate monopolists. If two
complementary products are monopolized separately, the argument
goes, each monopolist ignores the positive benefits that accrue to
the other firm from an increase in its own pace of innovation. In
the matter at hand, this theoretical efficiency would argue that if
Microsoft had a monopoly in operating systems, while Novell had a
monopoly in browsers, Novell would not innovate as much as possible
because it would not take into consideration the positive effects of
browser innovation on operating system demand. This reasoning also
suggests that innovation in the industry would be enhanced if
Microsoft's OS dominance were to be extended further into still more
applications markets. The key point missed in this theory is that
any extension of Microsoft's OS monopoly power would dampen
innovation into substitutes for Microsoft's OS. Enhancing the
applications barriers only reduces the incentive for any firm to
engage in OS or applications innovation. If an application could be
open to competition--;i.e., if it could be characterized by some
rivalry or competition, as an alternative to Microsoft's
integration--;then unrestrained competition would strengthen
rather than weaken innovation. While Microsoft's dominance in the
browser market today may be a fait accompli, untying the OS and
media player will lead to such greater competition in media player
innovation.
Significantly for this case, untying would also increase
competition in the operating system market. As discussed earlier in
Section III.A, tying protects Microsoft's operating system dominance
by maintaining the applications barrier to entry and weakening or
deterring direct platform challenges. If there are separate
monopolists in adjacent markets, each will have the incentive to
enter or sponsor entry into the other's market, leading to
competitive pressure in both markets.\18\
---------------------------------------------------------------------------
\18\Of course, that monopolist competition will only
occur if the first monopolist is not permitted to use anti-
competitive tactics to foreclose the market for unintegrated rivals.
---------------------------------------------------------------------------
GVIDENCE IN THIS CASE, THE CONCLUSION IS THAT MICROSOFT HAS
ENGAGED, AND IS ENGAGING, IN ANTI-COMPETITIVE TYING IN ORDER TO
PROTECT AND STRENGTHEN ITS OPERATING SYSTEM MONOPOLY.
A. Microsoft's options, incentives, and history create a strong
presumption that Microsoft's tying harms OS competition and
consumers.
The District Court's Findings of Fact confirm that it is
Microsoft's ``corporate practice to pressure other firms to
halt software development that either shows the potential to weaken
Microsoft's applications
[[Page 28233]]
barrier to entry or competes directly with Microsoft's most
cherished software products.'' \19\ As a historical matter,
Microsoft has clearly engaged in anti-competitive, inefficient tying
with other applications. \20\For example, Microsoft has forbidden
OEMs from changing system defaults so as to make non-Microsoft
products the ``default application'' in ``out of the
box'' packages.\21\ While Microsoft allows the
``installation icons'' of competing applications to be
installed on desktops ``out of the box,'' installation
icons disappear if they are not invoked. In an even more subtle form
of contractual tying, Microsoft requires applications that run with
Windows to obtain a certification from Microsoft. This permits
Microsoft to monitor and perhaps discipline its applications rivals.
\22\ While some of these practices differ in form from strict tying
(a certification requirement for software is not the same as a
contractual requirement that OEMs use Microsoft products), the
effect is similar in that Microsoft is signaling to all other market
participants that applications may only run with Windows by
Microsoft's permission.
---------------------------------------------------------------------------
\19\See U.S. Findings of Fact 93.
\20\Microsoft has a track record of placing code for
Microsoft applications in the same files as code providing functions
for its OS in order to achieve its anti-competitive ends. This
includes the illegal commingling of code for Microsoft's Internet
Explorer with the operating code and the tying of with the OS. See
U.S. Findings of Fact 161-;229.
\21\See U.S. Findings of Fact 357, relating
to Microsoft's attempts through tying and other means to induce
users to select Microsoft's Internet Explorer as the preferred,
perhaps only, path to the web. It is possible for consumers to incur
the cost to change defaults, but the incentives to do this are very
small.
\22\See Steven Vaughan Nichols, Resisting the Windows XP
Message, ZDNet, May 9, 2001 (``I can't help but wonder if...
independent software vendors will have trouble getting that all-
important signature for [their] programs .... [W]hy do I feel
certain that giving Microsoft absolute power over all XP apps
probably doesn't spell good news for anyone in the tech
business--;except Microsoft?'').
---------------------------------------------------------------------------
Microsoft's profit incentives dictate that Microsoft would tie
its products together much more aggressively than efficiency alone
would suggest. With regard to the question of the nature of
competition in the media player market, one of the current objects
of Microsoft's tying, and, in particular its tying of WMP, is clear:
as the District Court determined, the ``multimedia stream
[represents] strategic grounds that Microsoft [needs] to
capture.''\23\ That--;and not efficiency--;is the
driving force behind Microsoft's conduct.
---------------------------------------------------------------------------
\23\--;,3 See U.S. Findings of Fact i 112.
---------------------------------------------------------------------------
B. The evidence indicates that Microsoft is anti-competitively
tying the browser and the media player with its operating system.
In the absence of tying, Microsoft would provide an operating
system and applications such as the browser and media player that
were developed and offered in a modular, plug-replaceable fashion.
The applications codes for the browser and the media player would
not be commingled with the OS code, but would instead communicate
with the OS through a set of well defined APIs. Publishing the APIs
and interface protocols in this non-tying world would enhance the
value of Microsoft's operating system by ncouraging competition in
the innovation of the complementary good--;the browser and the
media player. Greater competition and functional value in the market
for a complementary good always benefit a firm by increasing the
demand for its product. In the absence of anti-competitive
incentives to reinforce barriers to entry, this strategy would
maximize the profits that Microsoft obtains from its operating
system. The fact that Microsoft does not engage in such a business
strategy demonstrates, in the absence of evidence that tying is
efficient, that Microsoft is motivated by anti-competitive''
incentives.
Microsoft openly engages in contractual tying and basic
technological integration. By developing and marketing Windows XP as
an integrated package of operating system and popular applications,
Microsoft directly ignored the findings of fact and law by U.S.
courts.\24\ Microsoft's history makes it likely that Microsoft is
also engaging in various forms of OEM coercion to raise
rivals'' distribution costs and encourage the distribution of
its own middleware products. Consistent with our analysis, this
tying generally serves the purpose of Microsoft profitability and
reinforcement of its OS dominance, rather than consumer benefit.
Microsoft directly engages in anti-competitive tying when it
prevents OEMs and end-users from removing or uninstalling IE and
WMP. Microsoft does this through code commingling between the media
player and the operating system that renders substitution for WMP
difficult, or even impossible.
---------------------------------------------------------------------------
\24\``In June ... seven appeals judges ruled
unanimously that Microsoft was a monopoly that had violated the
antitrust laws by integrating its Web browser into its Windows
operating system in an effort to freeze out other browsers. [The
Court of Appeals ruled that] Microsoft shouldn't be allowed to
design Windows in a way that limits consumer choice--;the
ability of users to discover and easily use other companies''
products and services. [Despite this,] the company went on to launch
a new version of Windows--;Windows XP--;that continued to
integrate tightly into the operating system new features that are
crucial to extending Microsoft's monopoly onto the next
battleground: Internet-based services. And it added these features
in a way that hinders consumer choice.'' Walter S. Mossberg,
For Microsoft. 2001 Was a Good Year, But At Consumers''
Expense, The Wall Street Journal, December 27, 2001.
---------------------------------------------------------------------------
MTC-00028284--;0095
Another example of anti-competitive tying is that Microsoft
renders its own DRM technology software non-interoperable with other
media players because of DRM's interaction with Window XP's own
``secure audio path'' software. While this is not tying in
the sense of designing the operating system to be incompatible with
rival applications, it does involve designing an
application--;DRM--;that limits the compatibility of rival
applications in a closely related market, the market for media
players.
More generally, Microsoft anti-competitively undermines the
functionality and utility of rival streaming media players and
formats. For example, Microsoft denies a license for playing files
streamed in Windows content encoding formats to its principal
competitor, RealNetworks, thereby reducing the utility to consumers
of RealNetworks'' products. Microsoft also disadvantages rival
content-encoding formats by designing WMP to record only in Windows
media formats. These actions have, in the past, served to reduce
consumers'' perceptions of rivals'' performance--;for
example by deliberately making consumers'' use of Netscape
``a jolting experience'' \25\ or damaging MP3 quality and
functionality.\26\
---------------------------------------------------------------------------
\25\See U.S. Findings of Fact 160.
\26\See Ted Bridis, Technology Industry Aims to Render
MP3 Obsolete, The Wall Street Journal, Apr. 12, 2001, at A3.
(``Under Microsoft's new restrictions ... MP3 music
``sounds like somebody in a phone booth underwater,'' says
P.J. McNealy, an analyst who researches Internet audio issues for
Gartner Inc .... early testers of beta versions of Windows XP
already complain that the most popular MP3 recording
applications--;which compete with Microsoft's format--;don't
seem to function properly, apparently because of changes Microsoft
made to how data are written on CD-ROMs under Windows XP. Microsoft
says that while other software vendors'' products may not be
``optimized'' to run with Windows XP, those products
should run acceptably with the operating system.'').
---------------------------------------------------------------------------
In general, OEMs perform a screening function, as agents of
consumers, by ensuring that the software products provided out of
the box are compatible with each other and with the operating
system? Consumers are aware that OEMs perform this function.
Consumers are also aware that OEMs'' reputations are based
partly on packaging high- quality software products, so that OEMs
have the incentive to choose the best software products for the
price. Consumers are in general not aware of the contractual
restrictions imposed in various contractual arrangements that might
explain the choice of media player, including, for example, any
threat not to license the Windows OS to the OEM unless all Windows
applications are included as defaults. Nor are consumers aware of
any financial incentives offered to OEMs by Microsoft to include
only Microsoft applications as default options. Contractual tying
alone will thus cause consumers to infer, for reasons unrelated to
merit, that Microsoft's applications are the optimal products for
them.
As suggested above, the interaction of all these effects,
combined with rational expectations, can easily lead to the rapid
foreclosure of competition. The force of self- realizing
expectations is especially strong when one firm or one format is a
natural focal point for consumer expectations. In markets where any
number of formats could be sustained as dominant because of self-
realizing expectations (economists term this ``the multiplicity
of rational expectations equilibria''), a focal point property
of any one equilibrium can be important in predicting which
equilibrium will be sustained. There could hardly be a stronger
focal point than the Microsoft/Windows format for predicting the
likely dominant (and perhaps sole) format. The history of the PC
software industry is one of the dominance of Microsoft
[[Page 28234]]
standards\27\ The prediction that the Microsoft standard will
predominate in the media player market is natural, perhaps
inescapable, for a consumer--;uninformed about the media player
market specifically--;debating about which format to adopt.
While it is arguable that strong network effects might yield
dominance by a single firm in a good or service and its complements,
it is uncertain whether a monopoly outcome is inevitable absent
tying. In this context, tying assures OS dominance and is therefore
anti-competitive.
---------------------------------------------------------------------------
\27\This is similar to the screening function that
upscale department stores provide in selecting high-quality
products. Intermediaries in retail markets invest in establishing
brand names or trust on the part of consumers. :s See U.S. Findings
of Fact 33--;35, 53, 60, and 62-;64.
---------------------------------------------------------------------------
Thus, Microsoft's coercion of OEMs to select WMP for the
``out-of-the-box'' experience, and to obscure the
differences in capabilities between WMP and rival products, could
weaken consumer awareness of the various functionalities available
in the open market.
This would increase expectations of a single dominant format,
which in turn would accelerate that dominance. The dominance in the
media player market, to emphasize the applications-OS interaction
once more, reinforces Microsoft's dominance in operating systems.
CONCLUSION
We show in this report that Microsoft has substantial incentives
to engage in ant/- competitive tying of its middleware products with
Windows. It has incentives to use contractual inducements to OEMs to
bundle Windows with its own middleware instead of rival products;
commingle applications code into the kernel of the operating system;
and hamper the interoperability of rival applications. We also show
that Microsoft's tying--;in all of its forms--;reinforces
Microsoft's monopoly in operating systems.
Microsoft's incentives to anti-competitively bundle fall into
four mutually reinforcing categories. First, by tying its middleware
applications to the Windows operating system, Microsoft can
strengthen the applications barrier to entry against its OS
competitors. This reinforces Microsoft's OS monopoly. In order for
entrants in the operating system market to succeed, they must have a
wide variety of applications available for consumers to purchase.
But software developers will invest in the creation of new
applications only for operating systems that have widespread
distribution. If Microsoft attains dominance with both the operating
system and key middleware applications, it can ensure that its OS
rivals will be unable to meet consumer demands for the most popular
applications. With a dominant position in applications markets,
Microsoft may choose not to write those applications to interoperate
with rival operating systems, thus enhancing the already significant
applications barrier to entry.
Second, tying reinforces Microsoft's OS monopoly by deterring
direct challenges to the OS position as the platform of choice for
software developers. Since programmers can write calls to middleware
products, Microsoft's dominance in these products reduces the
possibility that a universal translator (middleware) between
operating systems and applications would threaten the Windows
monopoly. Just as with the browser, Microsoft weakens this
competitive threat to operating systems by integrating the potential
substitutes directly into the OS.
Third, tying can provide a method of dynamic leveraging to
ensure a future monopoly. This involves a direct counterargument to
the familiar ``one-monopoly theory,'' which states that a
monopolist cannot collect more profits through a monopoly on a pair
of complementary products (an operating system and an application)
than through a monopoly on either product alone. Where the future
entry into each product is uncertain, establishing a monopoly on
both products in the pair increases the chance that the monopolist
will retain a monopoly on at least one product in the future and
therefore is positioned to collect full monopoly profits. In our
context, the fact that the Windows monopoly over operating systems
is not airtight creates an incentive for Microsoft to leverage its
dominance so as to increase the likelihood of future dominance in at
least one class of products--;the operating system or
applications. Dominance in applications provides (partial) insurance
against the loss of monopoly power in operating systems, but the key
is the preservation of monopoly in at least one of the pair of
products: the OS and one or more important middleware applications.
Finally, tying IE and WMP into the OS and locking in Microsoft's
streaming media and DRM formats put Microsoft in a position to
potentially collect a tax on e-commerce transactions. Tying thus
facilitates the move by Microsoft to a business strategy of
collecting revenues from per-transaction royalty of its software,
rather than outright sale of its software. This business strategy
lessens the competition that Microsoft, as a durable-good
monopolist, faces from the sales of its own previous versions of
Windows. In this sense, the strategy, and its facilitation through
tying, reinforce Microsoft's dominance in operating systems.
Product integration can theoretically be beneficial in some
markets. Purchasers prefer to purchase some bundles of inputs, such
as steering wheels with cars or laces with shoes.
These efficiencies do not apply to the bundling of middleware
with Windows. Purchasing a personal computer with a full set of
applications and default options ``out of the box'' is
valuable for many consumers. But the efficiencies that come with an
integrated package of an OS and various applications are not
specific to Microsoft's applications. In a market where OEMs were
free to offer whichever packages of software consumers desired,
without integration of applications into the operating system, and
without Microsoft's tying constraints or inducements, the market
would provide the variety of packages preferred by consumers.
Moreover, the engineering efficiencies claimed for the integration
of middleware code into the operating system appear to be
negligible, and are therefore more than offset by the anti-
competitive effects of tying. In fact, a software design organized
around modular programming of the operating system and middleware
applications would achieve the efficiencies associated with modular
programming and would allow for plug-and-play replacement of the
software.
In the absence of tying, Microsoft would offer an operating
system and middleware applications that were distinct in the sense
of modular programming. For example, neither browser nor media
player code would be commingled with OS code: instead, both would
communicate with the OS only through a set of published APIs.
Microsoft would enhance the value of its operating system by
encouraging competition in the innovation of the complementary
good--;i.e., the browser and the media player. This strategy
would maximize value to consumers and the profits that Microsoft
obtains from its operating system. The fact that Microsoft does not
engage in such a business strategy demonstrates, in the absence of
evidence that its tying is efficient, that Microsoft is motivated by
anti-competitive incentives that maintain its OS monopoly.
MTC-00028284--;0100
VI. APPENDIX: CURRICULUM VITAE OF FRANK MATHEWSON
G. FRANKLIN MATHEWSON--;Professor of Economics, Director of
the Institute for Policy Analysis, University of Toronto
Ph.D. Stanford University
B.Com. University of Toronto
ACADEMIC POSITIONS
1996-present Director, Institute for Policy Analysis, University
of Toronto.
1969-present Professor of Economics, Department of Economics,
University of Toronto.
1969-present Research Associate, Institute for Policy Analysis,
University of Toronto.
1995-;1996 Acting Chair, Department of Economics,
University of Toronto.
1985 Visiting Professor, Center for the Study of the Economy and
the State, University of Chicago, Spring Quarter.
1984 Visiting Scholar, Graduate School of Business, University
of Chicago, Spring Quarter.
1978-;1983 Associate Chairman and Director of Graduate
Studies, Department of Economics, University of Toronto.
1970-;1982 Professor of Economics, Faculty of Management
Studies, University of Toronto.
1978-;1979 Senior Research Associate, Ontario Economic
Council.
1976-;1977 Visiting Research Fellow, Department of
Political Economy, University College, University of London.
HONORS AND FELLOWSHIPS
* Social Science and Humanities Research Council Research
Fellowship: 1994, 1991, 1989, 1987, 1986, 1985
* Social Science and Humanities Research Council Leave
Fellowship: 1983-;1984
* Canadian Council Leave Fellowship: 1976--;1977
* Canada Council Doctoral Fellowship: 1966-;1969
* Woodrow Wilson Fellowship: 1965
PROFESSIONAL AFFILIATIONS
* Editorial Board, Journal of Economics of Business, 1992-
present.
[[Page 28235]]
* Editorial Board, Managerial and Decision Economics, 1994-
present.
* Editorial Board, Economic Inquiry, 1987-;1997.
* Editorial Board, Journal of Industrial Economics,
1990-;1995.
* Associate Editor, International Journal of Industrial
Organization, 1982-;1988.
Co-editor with M. Trebilcock and M. Walker. The Law and
Economics of Competition
Policy, Vancouver: The Fraser Institute, 1990.
Co-editor with J. Stiglitz. New Developments in the Analysis of
Market Structures, Cambridge: MIT Press, 1985.
Program Committee, European Association for Research in
Industrial Economics, 1983-1991.
Program Committee, Conference on Industrial Organization,
International Economics Association, 1982.
PUBLICATIONS
``The Analysis of Efficiencies in Superior Propane: Correct
Criterion Incorrectly Applied.'' With Ralph Winter. Canadian
Competition Record, Fall 2000, 20(2): 88-;97.
``Professional Corporations and Limited Liability.''
With Michael Smart, in Peter Newman (ed.)
Palgrave Dictionary in Economics and the Law, 140-;143
London: MacMillan Reference Limited, 1999.
``Law Firms.'' With Jack Carr, in Peter Newman (ed.)
Palgrave Dictionary in Economics and the Law, 497-;500, London:
MacMillan Reference Limited, 1998 ``Canadian Bank Mergers:
Efficiency and Consumer Gain versus Market Power'' With Neil
Quigley CD Howe Institute, Occasional Paper, No. 108, June 1998.
``To Merge or not to Merge: Is that the Question?.''
With Neil Quigely. CD Howe Institute. Occasional Paper, No. 108,
1998.
``The Lax,,, and Economics of Resale Price
Maintenance.'' With Ralph Winter. Review of Industrial
Organization, 13:1-;2, 57-;84, April 1998.
``What's Essential, What's Prudential, What Can Competition
Provide?'' With Neil Quigley. Canadian Competition Record 18:2,
11-;28, 1997.
``Reforming the Bank Act: Regulation, Public Policy, and
the Market'' With Nell Quigley. Canadian Business Law Journal
29:1, 1-;16, 1997.
``Ensuring Competition: Bank Distribution of Insurance
Products: Prospects and Implications for Canada.'' With
Ignatious Horstmann and Nell Quigley. Toronto: CD Howe Institute,
1996.
``Buyer Groups and Exclusivity: Towards a Theory of Managed
Competition.'' With Ralph Winter. International Journal of
Industrial Organization 15:2, 137-;164, 1997. (Presented at the
EARIE Conference, Tel Aviv, Israel, 1993.)
``Tying As a Response to Demand Uncertainty.'' With
Ralph Winter. The RAND Journal of Economics 28:3,566-;583,
1997. (Presented at the EARLE Conference, Lisbon, Portugal, 1990.)
``ility in the Absence of Deposit Insurance: The Canadian
Banking System 1890-;1966.'' With Jack Cart and Neil
Quigley. Journal of Money, Credit and Banking 27:4, 1137-;1158,
1995.
``Ensuring Failure.'' With Jack Can'' and Neil
Quigley. Toronto: CD Howe Institute, 1994.
``Territorial Rights in Franchise Contracts.'' With
Ralph Winter. Economic Inquiry 32:2, 181- 192, 1994. (Presented at
the EARLE Conference, Budapest, Hungary, 1989.)
``Reply to R. Gilson.'' With Jack Can''. Journal
of Political Economy 99:2,426-;428, 1991.
``The Economics of Law Firms: A Study in the Legal
Organization of the Firm.'' With Jack Carr. Journal of Law and
Economics 33:2, 307-;330, 1990. ``The Economic Effects of
Automobile Dealer Regulation.'' With Ralph Winter. Annales
d'Economie et de Statistique 15/16, 409- 426, Juillet-Decembre 1989.
``Unlimited Liability and Free Banking in Scotland: A
Note.'' With Jack Carr and S. Glied. Journal of Economic
History 49:4, 974-;978, 1989.
``Vertical Restraints and the Law: A Reply.'' With
Ralph Winter. RAND Journal of Economics, 19:2, 298-;301, Summer
1988.
``Unlimited Liability as a Barrier to Entry.'' With
Jack Cart. Journal of Political Economy 96:4, 766-;784, August
1988.
``Is Exclusive Dealing Anti-Competitive?'' With Ralph
Winter. American Economic Review 77:5, 1057-;1062, December
1987.
``Advertising and Consumer Learning.'' With Y.
Kotowitz in FTC Conference Volume, Consumer Protection Economics,
1986. (Paper presented at the FTC Conference on Advertising,
Washington, 1984.)
``Competition Policy and Vertical Exchange.'' With
Ralph Winter. Royal Commission on the Economic Union and Development
Prospects for Canada, University of Toronto Press, 1985.
``The Economics of Franchise Contracts.'' With Ralph
Winter. Journal of Law and Economics 3, 503-;526, October 1985.
(Paper presented at the EARLE Conference, Fontainebleau, 1984.)
``The Economics of Life Insurance Regulation: Valuation
Constraints.'' With Ralph Winter in J. Finsinger and M. Pauly
(eds.), The Economics of Insurance Regulation, MacMillan and Company
Limited, 1986. (Paper presented at IIM Conference on Regulation in
Insurance Markets, Berlin, 1984.)
``The Economics of Vertical Restraints in
Distribution.'' With Ralph Winter in J. Stiglitz and G.F.
Mathewson (eds.), New Developments in the Analysis of Market
Structure, MIT Press, 1986.
``An Economic Theory of Vertical Restraints.'' With
Ralph Winter. RAND Journal of Economics 15:1, 27-;38, Spring
1984. (Reprinted in The Economics of Marketing, Cheltenham, UK:
Edward Elgar Publishing Limited, 1998.)
``Information, Search and Price Variability of Individual
Life Insurance Contracts.'' Journal of Industrial Economics
32:2, 131-;148, December 1983. (Paper presented at the Canadian
Economics Association Meetings, Montreal, 1980.)
``The Incentives for Resale Price Maintenance.'' With
Ralph Winter. Economic Inquiry 21:3, 337-;348, July 1983.
(Paper presented at the Western Economic Association Meetings, San
Francisco, 1981 .)
``Vertical Integration by Contractual Restraints in Spatial
Markets.'' With Ralph Winter. Journal of Business 56:4,
497-;518, October 1983.
``Entry, Size Distribution, Scale, and Scope Economies in
the Life Insurance Industry.'' With S. Kellner. Journal of
Business 56:1, 25--;-44, January 1983.
``Regulation of Canadian Markets for Life Insurance.''
With Ralph Winter. Department of Consumer and Corporate Affairs,
Government of Canada, 1983.
``The Rationale for Government Regulation of Quality''
and ``Policy Alternatives in Quality Regulation.'' With D.
Dewees and M. Trebilcock. ``Markets for Insurance: A Selective
Survey of Economic Issues,'' in D. Dewees (ed.), The Regulation
of Quality, Toronto: Butterworths, 1983.
``An Economic Theory of Union-Controlled Finns.'' With
Y. Kotowitz. Economica 49:196, 421-433, November 1982. (Paper
presented at the Canadian Economics Association Meetings, Quebec
City, 1978.)
``Advertising, Consumer Information and Product
Quality.'' With Y. Kotowitz. Bell Journal of Economics 10:2,
566-;588, Fall 1979. (Paper presented at the European
Econometric Society Meetings, Geneva, 1978.)
``Informative Advertising and Welfare.'' With Y.
Kotowitz. American Economic Review 69:3, 284-;294, June 1979.
``Information, Entry and Regulation in Markets for Life
Insurance.'' Ontario Economic Council Research Studies,
University of Toronto Press, 1982.
``Some Issues on Public Advertising.'' With Y.
Kotowitz. Journal of Contemporary Business 7:4, 123-;124, 1979.
``Economics of Fiscal Transfer Pricing in Multinational
Corporations.'' With G.D. Quirin. Ontario Economic Council
Research Studies, University of Toronto Press, 1978.
``The Residential Demand for Electrical Energy and Natural
Gas: A Model Estimated for Canada.'' With R. Hyndman and Y.
Kotowitz in W.T. Ziemba et al. (eds.), Energy, Policy Modelling:
United States and Canadian Experiences, Martinus Nijhoff Press,
86-;102, 1980. (Paper presented at the Canadian Energy Policy
Modelling Conference, Vancouver, 1978.) ``Economies of Scale in
Financial Institutions: Reply.'' With P. Halpern. Journal of
Monetary Economics 3, 127-;131, 1977.
``The Benefits and Costs of Rate of Return
Regulation.'' With J. Callen and H. Mohring. American Economic
Review 66:5,290-;297, June 1976.
``Economies of Scale in Financial Institutions: A General
Model Applied to Insurance.'' With P. Halpern. Journal of
Monetary Economics 1:2,203-;220, April 1975.
``Price Effects of Market Power in the Canadian Newspaper
Industry: Reply.'' Canadian Journal of Economics 7:1,
130-;132, February 1974.
Cents and Nonsense: The Economics of Canadian Policy Issues.
With J. Carr and J. McManus. Holt, Rinehart, and Winston, 1972.
``Metering Costs and Marginal Cost Pricing in Public
Utilities.'' With G.D. Quirin. Bell Journal of Economics
3:1,335-;339, May 1972.
[[Page 28236]]
``A Note on the Price Effects of Market Power in the
Canadian Newspaper Industry.'' Canadian--; Journal of
Economics 5:2, 298-;301, May 1972.
``A Consumer Theory of Demand for the Media.'' Journal
of Business 45:2, 212-;224, April 1972.
VII. APPENDIX: CURRICULUM VITAE OF RALPH WINTER
RALPH A. WINTER--; Professor of Economics and Finance,
University of Toronto
Ph.D. Economics, University of California at Berkeley
M.A. Statistics, University of California at Berkeley
B.Sc. Mathematics and Economics (with honors), University of
British Columbia
ACADEMIC POSITIONS
1988-present Professor of Economics and Finance, University of
Toronto
1985-;1988 Associate Professor, Department of Economics and
Faculty of Management Studies, University of Toronto
1979-;1985 Assistant Professor, Department of Economics and
Faculty of Management Studies, University of Toronto
HONORS AND FELLOWSHIPS
* Olin Senior Research Fellowship, Yale Law School, i 988
* National Fellowship, Hoover Institution, Stanford University,
1986-;1987 Harry, Johnson Prize (with M. Peters), for best
article in the Canadian Journal of Economics, 1983
* Canada Council Doctoral Fellowship, 1975-;1979
* John H. Wheeler Scholarship, University of California at
Berkeley, 1974-;1975
* Dean's Honors List, University of British Columbia, 1974
RESEARCH GRANTS
* Social Sciences and Humanities Research Council Research
Grant: 1983-;1985, 1986-1987, 1988-;1989, 1990,
1991-;1993
Social Sciences and Humanities Research Council Post-Doctoral
Research Fellowship: 1981-;1982 and 1982-;1983
PROFESSIONAL AFFILIATIONS
* International Editorial Board, Assurances
* Editorial Board, Journal of Industrial Economics
PROFESSIONAL APPEARANCES
* British Columbia Utilities Commission, regarding capital
structure and equity risk premium for Pacific Northern Gas, 1998
Canadian Radio-Television and Telecommunications Commission,
regarding price cap regulation for telephone companies, 1996
Alberta Energy and Utilities Board, regarding fair rate of
return for TransAlta Utilities Corporation and Alberta Power
Limited, 1996
* Expert witness, Nielsen case, before the Canadian Competition
Tribunal, 1994
Ontario Energy Board (EBRO 483,484), regarding fair rate of
return for Centra Gas, 1993 (written submission)
Ontario Energy Board (EBRO 4790), regarding fair rate of return
for Consumers Gas, 1992
Expert witness, Chrysler case, before the Canadian Competition
Tribunal, 1988
PUBLICATIONS
``Efficiency as a Goal of Competition Policy,'' in
Canadian Competition Policy: Preparing for the Future, forthcoming,
2002.
``Efficiency Analysis in Superior Propane: Correct
Criterion Incorrectly Applied,'' forthcoming, Canadian
Competition Record, 2001, with G.F. Mathewson.
The Law and Economics of Canadian Competition Policy,
forthcoming 2001, with M.J. Trebilcock, E. Iacobucci, and P.
Collins, University of Toronto Press.
``Remarks on Recent Developments in Canadian Competition
Policy,'' in Critical Issues in
Mergers and Acquisitions, Queen's Annual Business Law Symposium,
2000, 59-;67.
``The State of Efficiencies in Canadian Competition
Policy,'' Canadian Competition Record, Winter 2000, pp.
106-;114, with M.J. Trebilcock.
``Optimal Insurance under Moral Hazard,'' in Handbook
of Insurance, G. Dionne, editor, Kluwer Academic Publishers, 2000.
pp. 155-;186.
``Substantial lessening of Competition in Canadian
Competition Law'', in Competition Law for the 21st Century,
Canadian Bar Association 1998.
``Resale Price Maintenance and the Canadian Competition
Act'', Review of Industrial Organization, 1998.
``Colluding on Relative Prices'', Rand Journal of
Economics Vol. 28, No.2, (Summer 1997): 359-;372.
``Tying as a Response to Demand Uncertainty'', Rand
Journal of Economics Autumn 1997 (with Frank Mathewson).
``Exclusivity Restrictions and Intellectual Property''
in Competition Policy and Intellectual Policy, Anderson and Gallini,
eds. 1998 (with Patrick Rey).
``Buying Groups and Exclusivity: Towards a Theory of
Managed Competition'' (with GF Mathewson): International
Journal of Industrial Organization, 1997.
``The Economics of Liability for Nuclear Accidents''
(with M.J. Trebilcock), International Review of Law and Economics,
1997.
``Output Shares in Bilateral Agency Problems'', with
H. Neary, Journal of Economic Theory 1995.
``The Dynamics of Competitive Insurance Markets'',
Journal of Financial Intermediation (1994), 379-;415.
``Territorial Restrictions in Franchise Contracts'',
with G.F. Mathewson, Economic Inquiry, 1994.
``Vertical Control and Price versus Non-Price
Competition,'' Quarterly Journal of Economics, CVIII(1),
February 1993: 61-;78.
``Moral Hazard in Insurance Contracts'', in G.Dionne,
Ed., Insurance Economics, 1992.
``The Liability Insurance Market,'' Journal of
Economics Perspectives, Summer 1991: 115-;136.
``Solvency Regulation and the Insurance Cycle,''
Economic Inquiry, XXIX(3), July 1991: 458- 472.
``The Law and Economics of Vertical Restraints,'' in
M. Trebilcock, ed., Competition Policy in Canada, Vancouver: The
Fraser Institute, 1990. With G.F. Mathewson.
``The Economic Effects of Automobile Dealer
Regulation,'' Annales d'Economie et de Statistique, 15/16,
Juillet-Decembre 1989: 409-;426. With G.F. Mathewson.
``Vertical Restraints and the Lax,,,: A Reply,'' Rand
Journal of Economics, 19(2), Summer 1988: 298-;301. With G.F.
Mathewson.
``The Liability Crisis and the Dynamics of Competitive
Insurance Markets,'' Yale Journal on Regulation, 1988:
455-;500.
``Currency Options, Forward Markets and the Hedging of
Foreign Exchange Risk,'' Journal of International Economics,
25, 1988: 291-;302. With R. Ware.
``The Competitive Effects of Vertical Agreements:
Comment,'' American Economic Reviev, 77(5), December 1987:
1057-;1062. With G.F. Mathewson.
``The Role of Options in the Resolution of Agency Problems:
Comment,'' Journal of Finance, December 1986: 1157-;1174.
With R. Farmer.
``R&D with Observable Outcomes,'' Journal of
Economic Theory, December 1986: 1336-;1351. With M. Peters.
``Public Pricing Under Imperfect Competition,''
International Journal of Industrial Organization, 4 (1), March 1986:
87-;100. With R. Ware.
``The Economics of Life Insurance Regulation: Valuation
Constraints,'' in J.Finsinger and M. Pauley (eds.), The
Economics of Insurance Regulation, MacMillan and Company Limited,
1986.
With G.F. Mathewson.
Review of Blair and Kaserman's'' Law and Economics of
Vertical Control'', Journal of Economic Literature, 1986.
Competition Policy and the Economics of Vertical Exchange, book
published by The Royal Commission on Canada's Economic Prospects,
1986, 167pp. (with G.F. Mathewson).
``The Economics of Franchise Contracts,'' Journal of
Law and Economics, October 1985: 503- 526. With G.F. Mathewson.
``Licensing in the Theory of Innovation,'' Rand
Journal of Economics, Summer 1985: 237-;253. With N.T. Gallini.
``The Economics of Vertical Restraints on
Distribution,'' in G.F. Mathewson and J.E. Stiglitz (eds.), New
Developments in the Analysis of Market Structure, MIT Press, 1985.
With G.F. Mathewson.
``An Economic Theory of Vertical Restraints,'' The
Rand Journal of Economics, 1 (1), Spring 1984: 27-;38. With
G.F. Mathewson.
Regulation of Canadian Markets for Life Insurance, Consumer and
Corporate Affairs, Ottawa, 1984. (With G.F. Mathewson, T. Cussman
and C. Campbell).
``The Incentives for Resale Price Maintenance under
Imperfect Information,'' Economic Inquiry, XXXI(3), June 1983:
337-;348. With G.F. Mathewson.
``Market Equilibrium and the Resolution of
Uncertainty,'' Canadian Journal of Economics, XVI(3), August
1983: 381-;390. With M. Peters.
``Vertical Integration by Contractual Restraints in Spatial
Markets,'' Journal of Business, 56(4), October 1983:
497-;519. With G.F. Mathewson.
``Vertical Control in Monopolistic Competition,''
International Journal of Industrial Organization, 1(3), 1983:
275-;286. With N.T. Gallini.
[[Page 28237]]
``On the Choice of an Index for Disclosure in the Life
Insurance Market: An Axiomatic Approach,'' Journal of Risk and
Insurance, XLIX(4), December 1982: 513-;549.
``An Alternative Test of the Capital Asset Pricing Model:
Comment'', American Economic Review, Vol. 72, No. 5, December
1982:1194-;96. (With S.M. Turnbull).
``Majority Voting and the Objective Function of the Firm
under Uncertainty: Note,'' Bell Journal of Economics, 12(1),
Spring 1981: 335-;337.
``On the Rate Structure of the American Life Insurance
Industry'', Journal of Finance, Vol. 36, No. 1, March 1981:
81-;97.
ATTACHMENT B
A DETAILED CRITIQUE OF THE PROPOSED FINAL JUDGMENT IN U.S. v.
MICROSOFT
Ronald A. Klain
Benjamin G. Bradshaw
Jessica Davidson Miller
O'Melveny & Myers LLP
555 13th Street, NW
Washington, DC 20004
January 2002
INTRODUCTION--;1
SECTION-BY-SECTION CRITIQUE OF THE PFJ--;2
Section III of the PFJ: Prohibited Conduct --;2
Section IV Of The PFJ: Compliance and Enforcement--;11
Section V Of The PFJ: Termination--;12
Section VI Of The PFJ: Definitions--;12
INTRODUCTION
This Court may approve the parties'' Proposed Final
Judgment (``PFJ''), but only if it first determines that
the proposed decree is ``in the public interest.'' In
reviewing the PFJ, we acknowledge that there are some beneficial and
important restrictions put on Microsoft's unlawful conduct. In too
many instances, however, these restraints are inevitably swallowed
up by broad exceptions and grants of power to Microsoft. The result
is that the proposed settlement will do little, if anything, to
eliminate Microsoft's illegal practices, prevent recurrence of those
acts, and promote competition in the marketplace. The public
interest requires more, and the Court should thus reject the
proposed settlement.
The purpose of this document is to expose--;on a point-by-
point, provision-by- provision basis--;the many loopholes,
``trap doors,'' and other critical deficiencies in the
PFJ. We present the issues in an order that tracks the proposed
decree itself so that they may be easily followed. We also provide
``real world'' examples where helpful. In general, the PFJ
suffers from several global, overarching flaws. First, in critical
places, the language used in the PFJ to define the protections for
competition are not broad enough to cover behavior the Court of
Appeals held to be unlawful. Rather, only specific rights are
granted, only specific competitive products are protected, and only
specific anticompetitive practices are banned. In many cases, the
rights and limitations are further clawed-back through carefully
crafted carve-outs that benefit Microsoft.
Second, the proposed decree relies too heavily on the personal
computer (``PC'') manufacturers (original equipment
manufacturers or ``OEMs'') to implement design
changes--;particularly in the critical area of
middleware--;without sufficiently ensuring their independence
from Microsoft's tight clasp. The PFJ also follows timelines that
are too loose and too generous to a company with the engineering
resources and product-. update capabilities of Microsoft.
Third, in too many places, the constraints on Microsoft (once
the exceptions are taken into account) devolve into a mandate that
Microsoft act ``reasonably.'' Aside from the obvious
concern about Microsoft's willingness to do so given its track
record, this formulation is problematic for other reasons. It does
little more than restate existing antitrust law (such provisions
cannot be said to be ``remedial'' if they, in essence, are
merely directives to refrain from future illegal acts). And, in
terms of enforcement, alleged violations of such ``be
reasonable'' provisions can only be arrested through
proceedings that will become, in essence, mini-retrials of U.S. v.
Microsoft itself.
In sum, a consent decree that causes little or no change in the
defendant's behavior cannot be found to advance the public interest,
especially when the defendant's conduct has been found by both the
district and appellate courts to be in violation of the law. As
such, based on the numerous shortcomings outlined below, the Court
should disapprove the PFJ.
SECTION-BY-SECTION CRITIQUE OF THE PFJ
Section Ill of the PFJ: Prohibited Conduct
A. Retaliation
The Scope Of The Protection Is Narrow: Section III.A of the PFJ
appears to be directed at preventing Microsoft from retaliating
against OEMs that attempt to compete with Microsoft products, but
Microsoft is constrained only from specified forms of retaliation.
If it retaliates against an OEM for any non- specified reason, that
retaliation is not prohibited. This formulation is particularly
problematic because the protected OEM activities are narrowly and
specifically defined. Retaliation against an OEM for installing a
non-Microsoft application that does not meet the middleware
definition is not prohibited; nor is retaliation against an OEM for
removing a Microsoft application that does not meet the middleware
definition.
For example:
MSN and MSN Messenger do not appear to be middleware under the
PFJ's highly specific definition of a ``Microsoft Middleware
Product.'' Given this uncertainty, an OEM cannot know with
confidence that it is protected from retaliation if it removes the
icon and start menu promotion for MSN and/or MSN Messenger.
If client software to support Sun's Liberty Alliance (a
competitor to Microsoft's Passport) were developed, it would
probably not be middleware under the PFJ definition. Thus, Microsoft
can retaliate if an OEM adds that software.
More generally, it is odd to have a formulation that de facto
approves of Microsoft's retaliation against OEMs, except where that
retaliation is forbidden. That is, given that competitors to
Passport, .Net My Services (formerly ``known as Hailstorm),
Windows Movie Maker, Microsoft Money, gaming programs, and Microsoft
Digital Photography programs--;even when shipped through the OEM
channel--;may not be included in the scope of protected
competition, Microsoft would be free to retaliate against OEMs that
promote those competitors.
Finally, the provision is substantially weakened in that only
certain types of retaliation (i.e., retaliation by changing
contractual relations and retaliation by changing promotional
arrangements) are forbidden, as opposed to prohibiting any form of
retaliation whatsoever. In order to eliminate Microsoft's ability to
unlawfully protect its OS monopoly, it is essential that Microsoft
be prohibited from taking any action that directly or indirectly
adversely affects OEMs or other licensees who in any way support or
promote non-Microsoft products or services.
Non-Monetary Compensation Provision: Microsoft is free to
retaliate against OEMs that promote competition by withholding any
existing form of ``non- monetary Compensation''- only
``newly introduced forms of non-monetary Consideration''
may not be withheld.
OEM Termination Clause Will Intimidate OEMs: Microsoft can
terminate, without notice, an OEM's Windows license, after sending
the OEM two notices that it believes the licensee is violating its
license. There need not be any adjudication or determination by any
independent tribunal that Microsoft's two predicate claims are
correct; after just two notices to any OEM of a putative violation,
Microsoft may terminate without even giving notice. This provision
means that the OEMs are, at any time, just two registered letters
away from an unannounced economic calamity. Obviously, that danger
will severely limit the willingness of the OEMs to promote products
that compete with Microsoft.
Pricing Schemes Will Allow Microsoft to Avoid Effects of the
Decree.'' Microsoft can price Windows at a high price, and then
put economic pressure on the OEMs to use only Microsoft applications
through the provision that Microsoft can provide unlimited
consideration to OEMs for distributing or promoting Microsoft's
services or products. The limitation that these payments must be
``commensurate with the absolute level or amount of'' OEM
expenditures is hollow--;given that it is not clear how an OEM's
costs will be accounted for, for this purpose.
Pricing
Microsoft Can Use Rebates To Eviscerate Competition. Under
Section III.B of the PFJ, Microsoft can provide unlimited
``market development allowances, programs, or other discounts
in connection with Windows Operating System Products.'' This
provision severely weakens the protection for OEM choice,
functioning the same way as the rebate provision discussed above,
but without any tether or limiting principle whatsoever. Arguably,
Microsoft can charge $150 per copy of Windows, but then provide a
$99 ``market development allowance'' for OEMs that install
WMP.
[[Page 28238]]
Presumably, this is intended to be circumscribed by Section
III.B.3.c, which provides that ``discounts or their
award'' shall not be ``based on or impose any criterion or
requirement that is other, vise inconsistent with.., this Final
Judgment,'' but this circular and self-referential provision
does not ensure that the practice identified above is prohibited.
While Microsoft should be allowed to engage in legitimate pricing
decisions, those decisions should be limited to volume-based
discounts offered on a non-discriminatory basis.
C. OEM Licenses
Microsoft Retains Control Of Desktop Innovation: Under Section
III.C of the PFJ, Microsoft would retain control of desktop
innovation by being able to prohibit OEMs from installing or
displaying icons or other shortcuts to non- Microsoft software/
products/services, if Microsoft does not provide the same software/
product/service. For example, if Microsoft does not include a media
player shortcut inside its ``My Music'' folder, it can
forbid the OEMs from doing the same. This turns the premise that
OEMs be given flexibility to differentiate their products on its
head.
For example:
Sony--;as a PC OEM and a major force in the music and
photography industries--;would be uniquely positioned to
differentiate the ``My Music'' and ``My Photos''
folder. And yet, Sony's ability to do so turns solely on the extent
to which Microsoft chooses to unleash competition in these areas.
Microsoft Retains Control Of Desktop Promotion.'' Microsoft
also, very oddly, can control the extent to which non-Microsoft
middleware is promoted on the desktop, by virtue of a limitation
that OEMs can promote such software at the conclusion of a boot
sequence or an Internet hook-up, via a user interface that is
``of similar size and shape to the user interface provided by
the corresponding Microsoft middleware.'' Thus, Microsoft sets
the parameters for competition and user interface.
Promotional Flexibility For IAPs Only, And Only For The OEM's
``Own'' IAP: OEMs are allowed to offer IAP promotions at
the end of the boot sequence, but not promotions for other products.
Also, OEMs are allowed to offer IAPs at the end of a boot sequence,
but only their ``own'' IAP offers. Given that this phrase
is ambiguous, Microsoft may attempt to read this provision as
limiting an OEM's right to offer an IAP product to those IAPs
marketed under the OEM's brand. Helpfully, the Competitive Impact
Statement suggests otherwise, but whatever this phrase means, it is
a needless restriction on an OEM's flexibility.
D. API Disclosure
APIs Defined Too Narrowly: Microsoft can evade the disclosure
obligation provided under Section III.D of the PFJ by ``hard-
wiring'' links to its applications, and through other predatory
coding schemes. Additionally, the disclosure is limited to
``APIs and related Documentation.'' This is too narrow and
can be evaded. Moreover, the provision for the disclosure of
``Technical Information'' found in Judge Jackson's interim
conduct remedies has been eliminated. These disclosures are
necessary to provide effective interoperability.
G. Anticompetitive Agreements
Joint Development Agreements Can Subvert Protections Of The
Settlement. The protection against anticompetitive agreements is
substantially undermined by the exception in Section III.G of the
PFJ that allows Microsoft to launch ``joint development or
joint services arrangements'' with OEMs and others. Under this
provision, Microsoft can ``invite'' OEMs, ISVs, and other
industry players to enter into ``joint development''
agreements and then resort to an array of exclusionary practices.
For example:
Microsoft invites OEM X to form a ``joint
development'' project to create ``Windows for X,'' a
``new product'' to be installed on the OEM's PCs. As long
as Microsoft's activities are cloaked under this rubric, it is
exempt from the ban on requiting the OEM to ship a fixed percentage
of its units loaded with Microsoft's applications, and other
protections designed to promote competition.
H. Desktop Customization
Add/Remove Is For Icons Only, Not The Middleware Itself.''
The add/remove provisions in Section III.H in the PFJ only allow for
removal of end-user access to Microsoft middleware--;not removal
of the middleware itself. This position is inconsistent with the
language in the Court of Appeals'' opinion on commingling or
the ``add/remove'' issue.
If Microsoft's middleware remains on PCs (even with the end-user
access masked), then applications developers will continue to write
applications that run on that middleware--;reinforcing the
applications barrier to entry that was at the heart of this case.
Allowing Microsoft to forbid the OEMs from removing its middleware,
and allowing Microsoft to configure Windows to make it impossible
for end-users to do the same, allows Microsoft to reinforce the
applications barrier to entry, irremediably.
As we have seen with the implementation of this approach (i.e.,
icon removal only) with regard to Internet Explorer in Windows XP,
Microsoft can use the presentation of this option in the utility to
make it less desirable to end-users. Moreover, limiting the required
``add/remove'' provision to icons only is actually a step
backward from the current state of affairs in Windows XP, where code
is removable for several pieces of Microsoft middleware.
Why Are Non-MS Icons Subject To Add/Remove?: The PFJ gives
Microsoft an added benefit: it can demand that OEMs include icons
for non-MS middleware in the add/remove utility. Why this should be
required, in the absence of any finding that assuring the permanence
of non-Microsoft middleware on the desktop is anticompetitive, is
bizarre. This essentially treats the victims of Microsoft's
anticompetitive behavior as if they were equally guilty of
wrongdoing.
Microsoft Can Embed Middleware And Evade Restrictions: Under
Section III.H.2, end-users and OEMs are allowed to substitute the
launch of a non- Microsoft Middleware product for the launch of
Microsoft middleware only where that Microsoft middleware would be
launched in a separate Top-Level Window and would display a complete
end-user interface or a trademark. This, in essence, allows
Microsoft to determine which middleware components will or will not
be subject to effective competition. By embedding its middleware
components in other middleware (and thereby not displaying it in a
Top Level Window with all user interface elements), or by simply not
branding the middleware with a trademark, Microsoft can essentially
stop rivals from launching their products in lieu of the Microsoft
products.
Harder For Consumers To Choose Non-Microsoft Products Than
Microsoft Products: In the same provision (III.H.2), Microsoft may
require an end-user to confirm his/her choice of a non-Microsoft
product, but there is no similar ``double consent''
requirement for Microsoft Middleware. There is no reason why it
should be harder for users to select non-Microsoft products than
Microsoft products.
Microsoft Can ``Sweep'' The Desktop, Eliminating Rival
Icons: Additionally,-the OEM flexibility provisions are
substantially undermined by a provision that allows Microsoft to
exploit its ``desktop sweeper'' to eliminate OEM-installed
icons by asking an end-user if he/she wants the OEM-installed
configuration wiped out after 14 days. Thus, the OEM flexibility
provisions will only last on the desktop with certainty for 14 days,
and after that period, persistent automated queries from Microsoft
can reverse the effect of the OEM's installations. The effect of
this provision is to severely devalue the ability of OEMs to offer
premier desktop space to ISVs--;and to undermine the ability of
OEMs to differentiate their products and provide consumers with real
choices. Desktop ``MFN'' Requirements: Finally, nothing in
the decree appears to forbid Microsoft from
requiring--;especially where non-middleware is
concerned--;so- called MFN agreements from the OEMs. These
agreements tax OEM efforts to promote Microsoft rivals by requiring
that equal promotion or placement be given to Microsoft products,
often without compensation.
I. Licensing Provisions
Licenses Put In Hands Of OEMs Only--;The), May Not Be Able
To Use Them Without Help: The OEM licensing provision is limited in
its effectiveness because the OEMs are prevented in Section III.I.3
from ``assigning, transferring, or sublicensing'' their
rights. This may severely limit their ability to partner with
software companies to develop innovative software packages to be
pre-installed on PCs. This provision is especially harmful when
contrasted with the broad partnering opportunities afforded to
Microsoft under Section III.G. In addition, the OEMs''
willingness to use these provisions--;even if they have the
financial and technical wherewithal to do so--;may be limited by
the weakness of the retaliation provisions discussed above.
Reciprocal License? ``Equal Treatment'' For Law
Abiders And Law Breakers Is Not Equal: Under Section III.I.5, the
PFJ requires ISVs, OEMs, and other licensees to license back to
Microsoft any intellectual property they develop in the course of
exercising their rights under the settlement. But that simply
rewards Microsoft for having created the
[[Page 28239]]
circumstances (i.e., having acted illegally) that necessitated the
settlement in the first place. Microsoft should not be able to
obtain the intellectual property rights of others simply because
those law abiding entities have been required to work with a
lawbreaker.
In addition, this provision may inadvertently work as a
``poison pill'' to discourage ISVs, et al., from taking
advantage of the licensing rights ostensibly provided to them in
Section III.I. The risk that an ISV would have to license its rights
to Microsoft will be a substantial deterrent for that ISV from
exercising its rights under Section III.I.
J. ``Security and Anti-Piracy'' Exception to API
Disclosure
The Settlement Exempts The Software And Services That Are The
Future Of Computing: One of the most seemingly innocuous provisions
in the PFJ is, in fact, one of the biggest loopholes: the provision
found in Section III.J.1 that allows Microsoft to withhold from API,
documentation or communication protocol disclosure any information
that would ``compromise the security of .... digital rights
management, encryption or authentication systems.'' This
provision raises several critical concerns:
Digital Rights Management Exception ``Swallows'' Media
Player Rule: Since the most prevalent use of media players in the
years ahead will be in playing content that is protected by digital
rights management (``DRM'') (i.e., copyrighted content
licensed to users on a ``pay-for-play'' ``basis),
allowing Microsoft to render its DRM solution non-interoperable with
non-Microsoft Media Players and DRM solutions essentially means that
non-Microsoft media players will be virtually useless when loaded on
Windows computers.
Authentication Exception Allows Microsoft To Control Internet
Gateways, Server- Based Services: Most experts agree that the future
of computing lies with server- based applications that consumers
,,,,,ill access from a variety of devices. Indeed, Microsoft's
``.Net'' and ``.Net My Services'' (formerly
known as Hailstorm) are evidence that Microsoft certainly holds this
belief. These services, ``,,,'hen linked with Microsoft's
``Passport,'' are Microsoft's self-declared effort to
migrate its franchise from the desktop to the Internet.
By exempting authentication APIs and protocols from the PFJ's
disclosure/licensure requirement, the settlement exempts the most
important applications and services that ,,','ill drive the computer
industry over the next few years. If Microsoft can wall off
Passport, .Net, and .Net My Services with impunity--;and link
these Internet/server-based applications and services to its desktop
monopoly--;then Microsoft will be in a commanding position to
dominate the future of computing.
Additional Problems Raised By Numerous Provisions in Section III
No Ban On Commingling Of Code.'' Nothing in the agreement
prohibits Microsoft from commingling code or binding its middleware
to the OS. This was a major issue in the case; the Court of Appeals
specifically found Microsoft's commingling of browser and OS code to
be anticompetitive; it rejected a petition for rehearing that
centered on this issue. And yet, the PFJ would permit this activity
to continue.
The danger of the absence of this provision is reinforced by
what is found in the definition of the Windows Operating System
Product (``Definition U''), which states that the software
code that comprises the Windows Operating System Product
``shall be determined by Microsoft in its sole
discretion.'' Thus, Microsoft can, over time, render all the
protections for middleware meaningless, by binding and commingling
code, and redefining the OS to include the bound/commingled
applications.
Too Many Of The Provisions Require A Mini-Retrial To Be
Enforced: In numerous places throughout Section III, the limitations
on Microsoft's conduct are basically rephrased versions of the Rule
of Reason. For example, in Section III.F.2, Microsoft may enter into
restrictive agreements with ISVs as long as those agreements are
``reasonably necessary;'' likewise, the Joint Venture
provisions found in Section III.G also employ a rule-of-reason test.
As such, they simply restate textbook antitrust law, and alleged
violations of these provisions could only be resolved through mini-
trials.
Server Interoperability Issues (Found in Sections III.E, III.H
and III.J) Only Full Interoperability Can Reduce Microsoft's
Barriers To Desktop Competition: The PFJ's proposed server remedy
will fail to provide meaningful, competitive interoperability
between Microsoft desktops and non-Microsoft servers because:
The applications barrier to entry is central to this case and to
Microsoft's desktop monopoly. A remedy that provides true server
interoperability can be a powerful tool to reduce the applications
barrier to entry. The server has the same potential to provide an
alternative platform as did the browser or Java. In that sense, it
is directly analogous to middleware products.
Microsoft has plainly recognized the threat that non-Microsoft
servers pose as an alternative applications platform and has acted
to exclude those products from full interoperation with the desktop
and to advantage its own server products. It is able to do so
because it controls the means by which servers may interoperate with
the functions and features of the Windows desktop. In order to
succeed in establishing non-Microsoft servers as an effective
alternative application platform, both consumers and application
developers have to be convinced that such servers: (1) can overcome
the interoperability barriers that Microsoft has erected, and (2)
have become viable alternatives to Microsoft's own servers, insofar
as they can fully interoperate with the desktop.
An incomplete interoperability remedy fails to meet this test.
Neither consumers (professional IT managers) nor server application
developers will be attracted to non-Microsoft servers that lack any
important interoperability functionality. If important
interoperability barriers are left in place, IT managers simply will
not buy the product and the remedy will fail to achieve its intended
purpose. This is an important guiding principle.
The proposed decree allows Microsoft to continue to exploit
dependencies between its desktop applications or its desktop
middleware and its servers or handheld devices to exclude server and
handheld competition. Section III.I Excludes Competing Server
Vendors From The Benefits Of Section III.E's Disclosures: Section
III.I limits Microsoft's obligation to license its desktop-server
Communications Protocols to ISVs, IHVs, IAP, ICPs, and OEMs; thus,
server competitors are excluded from the group of companies that
Microsoft must license information to under section III.E.
The Failure To Define ``Interoperate'' Is A Mistake:
Neither Section III.E nor any other provision of the PFJ defines the
meaning of ``interoperate.'' The failure to define
``interoperate'' is tantamount to the Department of
Justice's (``DOJ'') prior failure to define
``integrate'' in the 1995 consent decree, and will form
the basis for unending disputes over the scope of Microsoft's
disclosure obligations. ``Communications Protocol'' Is
Defined Too Narrowly And Too Ambiguously: The definition of
``Communications Protocol,'' which determines the scope of
server information to be disclosed by Microsoft, is highly ambiguous
and potentially very narrow in scope:
It appears to be limited to the Windows 2000 server, and thus
may exclude Microsoft's Advanced Windows 2000 server and Datacenter
server.
It is unclear whether ``rules for information
exchange'' that ``govern the format, semantics, timing
sequencing, and error control of messages exchanged over a
network'' mean the rules for transmitting information packets
over a network, or the rules for formatting and interpreting
information within such packets.
It appears to be limited to information exchanged via LANs and
WANs, and therefore may exclude information exchanged over the
Internet. In other words, having illegally seized dominance over
browsers, Microsoft will be allowed to use that power to establish
de facto proprietary protocols for Internet communication and keep
them entirely to itself. Even in its broadest possible meaning, the
term ``Communications Protocols'' is insufficiently broad
or comprehensive to require disclosure of the information. needed to
permit interoperability between non-Microsoft servers and the full
features and functions of Windows desktops.
Section III.J's Carve-Out Eliminates the Most Important
Disclosures: What little Section III.E provides, Section III.J takes
away by permitting Microsoft to refuse to disclose the very
protocols and technical dependencies it is currently using to
prevent non-Microsoft servers from interoperating with Microsoft
desktops and servers.
Section IV Of The PFJ: Compliance and Enforcement
A. Enforcement Authority
Enforcement Authority Is Too Difficult To Employ: Clearly, what
is missing from the agreement is a quick, meaningful, and empowered
mechanism for preventing and rectifying Microsoft's inevitable
violations of
[[Page 28240]]
the agreement. Thus, while the provision allowing Microsoft to cure
any violations of Sections III.C, D, E, and H before an enforcement
action may be brought is not itself objectionable, it is but one of
a number of provisions that make enforcing the agreement cumbersome,
expensive and time-consuming.
B. Technical Committee / D. Voluntary Dispute Resolution
Source Code Access Is Not Enough: While it is helpful that the
Technical Committee (``TC'') will have access to
Microsoft's source code and can resolve disputes involving that
issue, the TC is otherwise powerless to compel Microsoft's
compliance with the agreement in any other respect. The prospects
that Microsoft will accept the decisions of the TC in a voluntary
dispute resolution process are near zero. And the entire mechanism
seems designed to extend disputes indefinitely: no time limits or
time-lines are specified for dispute resolution.
As it stands now, a party injured by Microsoft's violation of
the decree can complain to the TC, which will then conduct an
investigation: Once the investigation is complete, the TC will
presumably issue some decision; while the investigation is ongoing,
the TC is supposed to consult with Microsoft's Compliance Officer,
for an indefinite period;
If the TC concludes that Microsoft violated the agreement, and
Microsoft does not agree to change its behavior or rectify the
wrong, then the TC must decide whether to recommend the matter to
the DOJ for further action;
Once recommended, the DOJ--;after some review
period--;may decide to take action, and apply to the court for a
remedy, or it may not; * And once the DOJ applies for action, the
process in court to obtain relief or remedy may extend for an
indefinite period.
This is obviously a lengthy and ineffective process for ensuring
that Microsoft complies with its obligations under the decree. In an
industry where time is of the essence and delays can be fatal, the
built-in delays that allow Microsoft to drag its feet are wholly
unacceptable.
Technical Committee's Investigation Has Only Limited Use: The
work of the Technical Committee cannot ``be admitted in any
enforcement proceeding before the Court for any purpose,'' and
the members of the TC are forbidden to appear.
Thus, under the terms of the decree, the substantial time,
effort and expense that can go into a TC process may need to be
duplicated in an enforcement action--; adding to the complexity
and expense that the process will pose for victims of Microsoft
violations.
Section V Of The PFJ: Termination
A. Five-Year Limit
Five-Year Coverage Is Inadequate: Given the scope of Microsoft's
violations, the time period required to restore effective
competition, and the pattern of willful lawbreaking on Microsoft's
part, a five-year consent decree is inadequate.
B. Two-Year Extension
Penalty For Knowing Violations Is Too Lenient: Amazingly, the
PFJ provides that no matter how many knowing and willful violations
Microsoft engages in, the restrictions found in the settlement may
be extended only for a single two-year period. Thus, if Microsoft is
adjudged to have engaged in such a pattern of violations, it
essentially has a ``free reign'' to repeat those
violations with impunity.
Section VI Of The PFJ: Definitions
A. APIs
API Definition Too Narrow: This is discussed above.
I. ISV
Definition Is Not Forward-Looking: The definition of ISV is
drafted too narrowly and should more clearly encompass developers of
software products designed to run on new versions of the Windows
operating system and next generation computing devices.
K. Microsoft Middleware Product
Definition Exempts Too Much Middleware: Much of the decree is
based on this definition--;the OEMs'' flexibility turns on
what is included or excluded from this category of application. And
yet the definition, which is different from the definition used by
the District Court (affirmed and employed by the Court of Appeals)
is fatally flawed.
First, there are only five existing products that can be known
with certainty to be ``Microsoft Middleware Products.''
That means that highly similar items, such as MSN, MSN Messenger,
MSN Explorer, Passport, Outlook, and Office may be excluded from the
definition of middleware. Why Windows Messenger would be covered by
the PFJ, but MSN Messenger would be exempt; or why Internet Explorer
would be covered, while MSN Explorer would be exempt--;if this
is, in fact, how the provision operates--;is a mystery. Why
ambiguity would be accepted in such a critical area is an even
greater mystery.
Given the uncertainty, Microsoft may attempt to retaliate
against OEMs that remove even the icons for its applications; it may
also attempt to prohibit end-users from removing these applications
(or even their icons). This is a step backward from the status quo
(even in Windows XP); the ambiguity is a gaping hole.
Second, the generic middleware definition, which applies only to
new products, and therefore does not capture any product now in
existence, allows Microsoft to define which products are included or
not, by virtue of Microsoft's trademark and branding choices. Thus,
as long as Microsoft buries these products inside other
applications, they are not independently considered middleware.
Third, as suggested in the points above, the definition misses
the future platform challenges to Microsoft's Windows monopoly: web-
based services. These services should be specifically defined and
included in the class of protected middleware.
N. Non-Microsoft Middleware Product
Only Developers With Substantial Resources {time} Viii Be
Protected: The competitive offerings protected by the decree are
narrowly limited to offerings that fall within the definition of
``Non-Microsoft Middleware Products.'' Again, as noted
above, the guarantees of OEM flexibility, promotion, and end-user
choice apply only to these specified products--;not to any other
software applications.
And yet, sadly, this narrow definition extends protection only
to applications ``of which at least one million copies were
distributed in the United States within the previous year.''
Thus, ``an innovator in his garage,'' creating a new form
of middleware to revolutionize the computer industry, has no
protection from Microsoft's rapacious ways until he can achieve the
distribution of 1 million copies of his software.
Also, as noted above, ``web-based services'' are not
captured in this definition, notwithstanding their importance to
future competition to the Windows OS.
R. Timely Manner
Netscape, All Over Again: Microsoft's obligation to disclose
APIs and other materials needed to make applications interoperable
with Windows in a ``timely manner'' is keyed off the
definition of that term in Section R. But Microsoft retains complete
control over this timeline because the definition provides that
Microsoft is under no obligation to engage in these disclosures
until it distributes a version of the Windows OS to 150,000 beta
testers. Thus, as long as Microsoft restricts its beta testing
program to 149,999 individuals until very late in the development
process, it can effectively eviscerate the disclosure requirements.
Our review of the available documentation shows, for example, that
Microsoft had no more than 20,000 beta testers 1 for Windows XP
until very late in the release cycle; thus, had this provision been
in place during the Windows XP release cycle, Microsoft would have
been under no obligation to release APIs until the eve of product
shipping.
Slow disclosure of APIs is precisely how Microsoft defeated
Netscape's timely interoperability with Windows 95. Thus, in this
way, not only is the decree inadequate to prevent future wrongdoing,
it does not even redress proven illegal acts in the past.
U. Windows Operating System Product
The scope of Microsoft's disclosure obligations under the
agreement are determined in large part by the meaning of
``Windows Operating System Product.'' The definition of
Windows Operating System Product leaves Microsoft free to determine
in ``its sole discretion'' what software code comprises a
``Windows Operating System Product.'' In other words,
Microsoft's disclosure obligation is subject entirely to its
discretion.
Note that the number of ``beta testers'' will be much
smaller than the number of ``beta copies'' of a product
that is being prepared for release.
From: Philip Johnson
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft
I feel Microsoft has done no wrong and should be left alone to
innovate and sell their products at whatever the market will bear.
They are no more a monopoly than a lot of other companies, so if you
are going to penalize them for that then you need to take action
against say AOL also and companies like them.
[[Page 28241]]
From: Wildcat
To: Microsoft ATR
Date: 1/28/02 1:57pm
Subject: Microsoft Settlement
I certainly hope you take into account that the effects of
Microsoft's business practices are *still* being felt, even today...
A brand new computer with anything *other* than Windows on-board is
still almost unheard of, many hardware manufacturers don't support
Linux or offer drivers for it, and many corporate websites are
designed almost exclusively for Internet Explorer in *spite* of the
W3C standards that are meant to make the ``World Wide
Web'' more accessible to *all* available browsers. I realize
that these last two points (drivers and web design) are almost
entirely due to the preferences of the manufacturers and designers
respectively, but those people are basing those decisions on the
atmosphere fostered by Microsoft that it is and shall be the only
creator of operating system and web browser software.
Recently, I experienced this form of ``browser
discrimination'' firsthand. My browser of choice is Netscape,
and I was finding it difficult to access a major retailer's website
and on-line shopping outlet --; my browser kept choking out. I
e-mailed a report of this technical glitch, and received a reply
suggesting I use Internet Explorer. To me (to use an analogy), this
is like being unable to get a clear picture of CNN from my cable
company, only to be told that my RCA television is the problem, and
that the CNN signal is designed specifically for a Sony. The bottom
line is, I've never been a big fan of Microsoft, and would really
rather not give them my money, but as long as they're allowed to
operate as they have in the past decade, they're going to wind up
with a share of the profit on almost anything I buy, whether I know
it or not, whether I *like* it or not.
Thank you for allowing me to state my opinion.
Bart Smith
Independence, KS
[email protected]
MTC-00028287
From: Mildred/Jerry
To: Microsoft ATR
Date: 1/28/02 1:56pm
Subject: MICROSOFT SETTLEMENT
I/WE ARE IN 100% SUPPORT FOR MICROSOFT SETTLEMENT. WE NEED TIME
AND MONEY SPENT ON THINGS LIKE ENRON INVESTIGATION. TOO MUCH ADO HAS
BEEN DIRECTED AT MICROSOFT.
SPEND MY TAX MONEY ON GOING AFTER REAL CROOKS LIKE ENRON
EXECUTIVES.
THANK YOU
JERRY & MILDRED ROBERTS
MTC-00028288
From: Matt Goun
To: Microsoft ATR
Date: 1/28/02 1:58pm
Subject: Microsoft Settlement
Matthew Goun
1230 Parkwood Drive
Merrick, NY 11566
[email protected]
I have sent a letter stating my thoughts as to settling
Microsoft's ongoing court case and I am afraid I was a little slow
in mailing it in.
My feelings are, enough already. Leave things as they are.
Microsoft has gotten the right decission and enough tax payers money
has been spent.
Sincerely,
Matthew goun
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
MTC-00028289
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 1:46pm
Subject: Microsoft Settlement
To Whom it may Concern,
I would like to add my voice to those in adamant opposition to
the proposed Microsoft Settlement. Please reject this proposal in
favor of a much stronger remedy.
Please review the current proposed settlement and make sure that
it adequately represents the interests of open-source advocates, and
consumers of open-source products. Essentially, the question that
needs to be addressed first and foremost is ``Are the barriers
to entry for competition with Microsoft reduced to a reasonable
level for both commercial and volunteer competitive efforts?''.
Secondly, I would ask ``Is the punitive element of this ruling
sufficient to make executives reluctant to engage in similar anti-
competitive behaviour, and stockholders reluctant to support
executives who do?''.
I trust that you'll come up with an equitable ruling that
represents the current and future interests of consumers, even if
the economy must suffer.
Sincerely,
Aaron McHugh
[email protected]
MTC-00028290
From: Dave Jorgensen
To: Microsoft ATR
Date: 1/28/02 1:59pm
Subject: Microsoft Settlement
Dear Sirs,
As a citizen of the United States of America, and an employee in
the High-Tech sector of our nations economy, I feel compelled to
write and voice my disagreement with the proposed Microsoft anti-
trust settlement. For the past two decades, I have watched again and
again as Microsoft leverages its monopoly position to wipe out what
were once healthy high-tech markets. Their actions have had a
continued, chilling effect on the industry which will be felt long
into the future. However one of the few remaining areas where
Microsoft has not yet accomplished their monopolistic goals, is in
the education market.
It's likely that Microsoft would leverage their monopoly to take
the education market if they could, but they've likely hesitated in
order to avoid undue attention while the current cases are being
judged. However, if the proposed settlement (of product donation to
the schools) is allowed to continue, our legal system will in effect
be sanctioning, even demanding, that Microsoft flood this additional
market with its product and drive out competitors from this area as
well. In effect, the proposed settlement will simply reward
Microsoft's monopolistic practices by providing them another
monopoly in the education market.
I urge the Justice Department, The Court, The Judge, anyone else
involved, to -reject- the proposed settlement and -insist- on a more
fair remedy.
Microsoft is not like some poor farmer who has to hand over his
old tractor to cover back taxes. The settlement amount is just a
tiny percentage (3%) of the -huge- cash hoard they have accumulated
through their monopolistic practices. Short of breaking up the
company (which I still think is justified) certainly we should at
the very least, insist that they pay their costs like the rest of us
do, in cash. Anything less only reinforces their monopolistic
position.
Thank you for your consideration in this matter,
David E. Jorgensen
350 Budd Ave. #E7
Campbell, California
95008, USA
e-mail: [email protected]
MTC-00028291
From: Chuck1040
To: Microsoft ATR
Date: 1/28/02 2:01pm
Subject: Settlement
I believe that this matter has dragged on too far and should be
settled as soon as possible. Get an agreement and move on to other
problems.
charles dennard,
1237 vintage place,
nashville, tn 37215
MTC-00028292
From: Patrick Purcell
To: `Microsoft.atr(a)usdoj.gov'
Date: 1/28/02 1:57pm
Subject: Microsoft Settlement
Hello
My name is Patrick Purcell. As an Applications Developer and
consumer of commercial software , I feel I must comment on the
proposed Final Settlement.
I will make the following general comments and then move on to
specific items in the documents .(Civil Action No 98-;1232 and
Civil Action No 98-;1232 CKK).
It is my understanding that judgment against Microsoft stands.
Microsoft was found in violation of the Sherman Act. I believe the
original remedy should stand. In document Civil Action No
98-;1232 CKK Section III H 3 Microsoft would be prohibited from
modifying third party icons,menus, and shortcuts without asking for
permission of the user.
The description does not prevent from Microsoft continually
asking the user if changes should be made.
In effect the user could be nagged to making a change.
I believe the language should be strengthen to prevent Microsoft
from nagging or making
[[Page 28242]]
adjustments through a needed software upgrade ( in the case of a
software fix).
In document Civil Action No 98-;1232 CKK Section III J
Microsoft is not obligated to license or disclose its API to third
parties.
The API allows a programmer to develop software and take
advantage of services the operating system offers.
Having a closed API excludes developers from using the operating
system to its full extent and does not provide a level playing
field. An open API would level the playing field.
It is possible to have a public API and not compromise security
and encryption.
The open source software Linux list all its API while providing
a high level of security.
The encryption software Pretty Good Privacy (PGP) provides the
API and an excellent level of encryption.
Both Linux and PGP clearly illustrate it is possible to provide
your complete API to all and still provide levels of security.
An open API would not preclude making a profit. For example
Stronghold is a commercial secure web server based on the Apache web
server. Stronghold is a successful product using an open API from
the Apache web server. Another example is the Apple product, Mac OS
X which is based on FreeBSD Unix.
On December 13, 2001, the ECMA General Assembly ratified the
C# and common language infrastructure (CLI) specifications into
international standards. The ECMA standards will be known as ECMA-
334 (C#) and ECMA-335 (the CLI). The C# is a programming
language developed by Microsoft. By having ECMA (http://www.ecma.ch)
ratify C# and CLI as international standards, Microsoft lost
direct control of the future development of these technologies.
However Microsoft opened the API to the public to strengthen the
acceptance of these technologies. Microsoft recognizes that
publishing the API has benefits. Microsoft would not be overall
negatively affected from publishing its complete API for its
operating system. The actual publishing of the API could be done
through an agency such as ECMA.
The above statements are my sole opinions and do not represent
the views of my employer.
I hope you will consider these statements in making a final
decision.
Sincerely
Patrick Purcell
MTC-00028293
From: Burt Harris
To: Microsoft ATR
Date: 1/28/02 2:01pm
Subject: Microsoft Settlement .
I want to register my support for the proposed settlement of the
Microsoft antitrust case. The proposed settlement takes reasonable
steps to address the underlying issue without crossing the boundry
into the punitive actions that its opponents seem to want inforced.
As a observer of the situation it strikes me that many of the
proponents of harsher terms have lost site of the fact that the
settlement is intended to be a remedy, not a punishment. This seems
to be driven by the fact that many of the financial backers of these
groups are in fact competitors of Microsoft.
I for one, want to make sure that the settlement primarily
addresses remedying any wrongs suffered by consumers (which I think
are actually relativily few) as opposed to benefiting Microsoft's
competitors, especially those competitiors who operate outside the
narrowly drafted ``market'' for Intel based operating
systems.
Burt Harris
15302 182nd Place NE
Woodinville, WA 98072
MTC-00028294
From: Juanita Bergh
To: Microsoft ATR
Date: 1/28/02 2:02pm
Subject: Microsoft Settlement
I have been and still am rather disgusted at the lawsuit against
Microsoft. At the time the lawsuit was filed, I was not an employee
of Microsoft. Now I am, but my feelings have not changed. I worked
for a software company for 10.5 years before joining Microsoft. We
used Netscape as a browser for a short period, but then our company
switched to Internet Explorer. I don't recall at what point that
was. But at the time I was using Netscape, the browser was given
away free as an incentive to get people to switch to using their
browser. Does this sound familiar? Isn't this part of Netscape/AOL
Time Warner's complaint against Microsoft? That by offering it free
and making it available as part of the operating system, Microsoft
is engaging in non-competative acts. Hmmm. I wonder why it wasn't
illegal when Netscape was first trying to gain market share. That's
the main reason we used Netscape, it was free and relatively easy to
use. However, we found the Internet Explorer worked better for us.
There are differences and distinctions between the two that I'm not
terribly familiar with as I have no desire to see if Netscape has
become more attractive. I have heard that Netscape offers an easy
way of uploading data, which isn't available in IE. I also have
heard that Mac users prefer Netscape. The browser that fills the
need best is the browser that will be used.
The last couple of times we purchased a computer, it came
preloaded with a several different internet connectivity options. We
did not choose to use any of them because we wanted to use a
different one.
The fact of the matter is, that if someone wants to use a
software product, they will use it whether it comes preinstalled or
not. It's not as though we're talking about a couple hundred dollars
to purchase Netscape; I can download it today for free. I'm not sure
if Netscape used to have a charge or what those charges are, but
it's rather hypocritical to complain about someone else giving
something away free when you're doing the same thing. As I said
earlier, who cares if it's preloaded or not; many users today are
sophisticated enough that they'll find and load what they want.
Another complaint that bugs me in the lawsuit states that OEM's
cannot really add much to change the way windows loads; this really
irks me because I don't want to get a different look and feel from
windows based on the hardware that I purchase! Is that user-
friendly? We had a Packard-Bell that loaded a bunch of junk from PB
and it drove us crazy, we disabled it because we didn't want it. I
want to be able to purchase hardware based on price, not how it
interacts with the os that I choose!! There's also the issue of
support and service packs; who's going to support those changes? The
OEM? Microsoft? Do I get pushed back and forth because the OEM says
it's not their problem and Microsoft says it's been changed so they
can't help either? There is nothing worse than trying to support a
product that has been modified; all your updates are delayed,
because when Microsoft releases a fix, the OEM has to do the same
thing. I know how this works; I worked for a software company in the
support area for 5 years and you cannot support something once
someone else has modified it. This is NOT in the consumer's best
interests for any software company to allow that. I know that it
happens and it has it's advantages, but it's also a miserable
position for the consumer who needs an update or help.
I have worked in the computer industry for 11.5 years now and I
am tickled that consumers have pretty much selected one OS that we
can use as a basis for developing our own applications. The
macintosh died in the business application market because Apple's
focus appears to be the graphic / educational market. We used to
support our applications on the macintosh for many years, but
finally discontinued that because it just wasn't a good business
proposition for us. Many, many software companies have thrived by
developing on the Microsoft platforms because Microsoft is the
company that bothers to find out what consumers want and strives to
give it to us. That's why Microsoft thrived and Apple did not. Apple
had great potential and is doing fine, but they could've been the
Microsoft.
Netscape/ AOL Time Warner would be smarter to use their money to
improve their products so they can compete based on the
products'' merit, not to try to cripple a successful rival.
One more comment on the ``monopoly'' issue. Microsoft
is not a phone company or utility company where the customer has
never had a choice; Microsoft has earned it's OS monopoly because no
other OS has provided customers with what they want. We love to bash
Microsoft (well, not since I've become an employee) for system bombs
and crashes, but the fact remains that Microsoft has made it
possible for millions of users to be able to use and afford a
computer. My parents, in-laws, and grandparents, who never grew up
using a computer are able to use email and word processing programs
because it's easy, simple, and uniform. I can help them figure
things out with a phone call because the OS behaves the same way no
matter what type of computer they have! My grandparents would never
have thought of using a computer in the pre-windows days.
Microsoft contributes a great deal of money, software and time
for charitable issues; if anyone has the issues of the consumer at
heart, it's Microsoft.
Thanks for listening,
Juanita Bergh
[[Page 28243]]
15705 28th St
Casselton, ND 58012
MTC-00028295
From: King, Steve
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:02pm
Subject: Microsoft Settlement
Renata Hesse
Department of Justice, Antitrust Department
601 D St NW
Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
I am a State Senator from Iowa and I also the owner of
construction contracting business. In my capacity as a State Senator
I am chairman of the state government committee and also serve on
the commerce committee. I chose to serve on these committees because
as a business owner I am acutely aware of negative impact over
regulation can have on business.
It is from this unique perspective that I am writing you today
to encourage you to settle the Microsoft anti-trust case
The suit against Microsoft was brought under anti-trust laws
that were developed in at a time in our history when our nation was
growing into the industrial and economic leader it is today. These
laws were meant to protect American consumers from harm inflicted by
monopoly companies. These laws have served their purpose in the
past. However, in this case, I do not think they apply. The
government and Microsoft's critics have yet to prove consumer harm
as a result of Microsoft actions or practices.
As a businessman and strong supporter of our free-market system,
it is apparent to me that Microsoft's only crime is giving the
American public a superior product, and therefore has been able to
build a loyal following of committed users. Assumedly, Microsoft
worked very hard to develop its products and market. They should not
be punished for this or for having the business savvy to take action
to protect their market.
A closer look at this suit and the lobbying efforts that have
fueled it will expose disturbing realities. Microsoft's competitors
do not appreciate that technology consumers are overwhelmingly loyal
to Microsoft products. However, instead of committing to production
of new products that may allow them to more successfully compete in
our free-market, they have banded together and found a way to use
outdated anti-trust laws for their own purposes.
The settlement before you is truly a compromise for Microsoft.
Certainly, Microsoft will be held to the severe provision of this
settlement, not the least of which is the sharing of intellectual
property. However, negotiating settlement is the best solution for
the technology industry and our economy in general. When this
settlement is approved it will send a signal to the technology
industry that the threat of government interference has been lifted.
Sincerely,
Senator Steve King
MTC-00028296
From: Kevin Port
To: Microsoft ATR
Date: 1/28/02 2:03pm
Subject: Please See Attachment- Microsoft
Please See Attachment--;Microsoft
Thank you,
K. Port
Kevin Port
250 Gorge Road # 29D
Cliffside Park, NJ 07010
January 28,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
After three years of seemingly endless litigation, I was frankly
relieved to hear that Microsoft had reached a tentative settlement
with the Justice Department in November. This settlement is good for
consumers and therefore no further action is needed on the federal
level.
The terms of the settlement cover many areas and will require
numerous concessions from Microsoft. One area of concession is in
relation to intellectual property rights. Microsoft has agreed that
if a third party's exercise of any options provided for by the
settlement would infringe any Microsoft intellectual property right,
Microsoft will provide the third party with a license to the
necessary intellectual property on reasonable and non-discriminatory
terms. And to assure this provision and every other one is followed,
Microsoft will be monitored by a three-member Technical Committee.
As a former worker in the tech industry, I understand the
importance of Microsoft's products to our economy. Although I did
not feel this suit had any merit to begin with, I realize at this
point the best development is to move forward. I hope your support
for this settlement continues and that the recent suit by AOL will
also be terminated. It is not worth the time and money of the
Justice Department to continue to pursue these actions against
Microsoft, a successful, entrepreneurial company, that has
contributed to the success of the U.S. economy and our technological
breakthroughs. Without the efforts of Microsoft, the global computer
industry would not have the standards and success we witness today.
Sincerely,
Kevin Port
MTC-00028297
From: N P
To: Microsoft ATR
Date: 1/28/02 2:03pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
In all honesty the Proposed Final Judgment stinks. I disapprove
of the tactics uses to get what they want. As one can see, MS, with
disregard to the rules put in place, will continue to violate all
anti-trust laws. The Proposed Final Judgment is not a panacea to the
Microsoft debacle but, in fact, avoids the whole issue altogether.
Undeniably true and accurate, Microsoft is guilty of breaking
these laws. Under the final settlement, the DoJ allows MS to retain
most of its profits gained through past illegal activities.
Therefore, the PFJ will not compensate parties harmed through
Microsofts egregious acts.
In addition, the PFJ will not take into account all Microsoft
gains made through its illegal maneuverings. With all due respect,
the final settlement is basically acknowledging the acceptance of
Microsofts anti-competitive behavior. What kind of message does this
send out to the public? I can assure you that the message is clear
and simple.
The PFJ encourages big corporations to engage in monopolistic
and predatory conduct, which in turn is detrimental to the
technology industry at large. With all due respect your honor, I am
outraged at such a preposterous proposal that only helps Microsoft
to remain intact and continue with its unethical practices. Thus, I
conclude by respectfully submitting my disapproval to this Proposed
Final Judgment.
Respectfully,
Mrs. Nimfa Paraso
7230 Adams Rd.
Magna, Utah 84044
MTC-00028298
From: BROWNING, CONNIE (AIT)
To: `microsoft.atr(a)usdoj.gov'
Date: 1/28/02 2:04pm
Subject: Microsoft Settlement
To Whom it May Concern:
Regarding the Microsoft Settlement, as a recent purchaser of a
new computer preloaded with Microsoft XP, I believe that MS has gone
too far in automating updates from my personal computer to their
system. I see the XP software, attempting to contact MS every time
that I am on the internet. I firmly believe that the software should
have been designed to request my explicit permission before sending
information regarding my personal machine.
Furthermore, I think that MS's exclusive and proprietary
relationships are not in my best interest, and prevent the further
innovation of many independent software developers. It was very
clear to me when loading other software on my XP system, which
vendors had not paid the price for MS's exclusive arrangements and
were suffering from the dramatic negative messages that I received
when trying to load ``unapproved'' software.
If I had known the nature of XP when purchasing my new computer,
I would have insisted at the time that the manufacturer supply me
with another operating system.
Connie Browning
468 Liberty Lane
Westerville, OH 43081
MTC-00028299
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/26/02 3:38pm
Subject: Microsoft Settlement
Microsoft was found guilty in this case. They have a history of
similar behavior (examples include DR-DOS and Stac Electronics).
They are currently targeting Real Networks using similar tactics to
the ones used against Netscape.
I do not believe that the proposed final judgement will restrain
Microsoft's anticompetitive conduct. It does not appear to do
anything to remedy the effects of their past unlawful conduct.
[[Page 28244]]
Their current .Net initiative attempts to leverage their desktop
monopoly to gain a dominant position online services. They should
not be allowed to do this.
Peter Goldthorp
Software Engineer
Hayward CA
MTC-00028300
From: Grissom, Marlene
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:03pm
Subject: microsoft settlement
I agree with Microsoft management in Hoping for a quick resolve
and settlement
Marlene Grissom
MTC-00028301
From: Chris Arsenault
To: Microsoft ATR
Date: 1/28/02 2:05pm
Subject: Microsoft Settlement
To whom it may concern:
After having read the provided case documents, I have come to
the following conclusion:
The proposed Final Judgement for United States v. Microsoft as
currently written fails to provide a concise and enforceable order
from the courts. It is inadequate to the task of addressing the
needs of the People. Given Microsoft's past history of compliance
with court orders, I feel that it's business practices would be
difficult to enforce without consequences being written into the
Final Judgement.
Such consequences should be related to the grant of monopoly for
copyrights and patents. In effect, should Microsoft continue
predatory business practices in a monopolistic fashion, then the
United States should revoke the grant of copyright to the various
versions of Windows software and Internet Explorer, as well as the
foundation source code. This code would be then be placed in the
public domain. This removes the need for monitoring for compliance
and reminds Microsoft that it undertakes business at the discretion
of the People of the United States.
Additionally, the issue which is at the heart of the
case--;what constitutes a computing platform, is clearly left
unanswered by the proposed final judgement as written. Without
delving into a lengthy argument here, at least recognize that
support for open source and public standards by which the Internet
emerged is clearly a wise and prudent action which encourages
innovation and discourages format lock-in.
For these reasons and many others, I strongly recommend that the
court reject this proposed Final Judgement.
Sincerely,
Chris Arsenault
67 Pole Bridge Rd.
N. Scituate, RI 02857
MTC-00028302
From: Phil Steele
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:03pm
Subject: Microsoft Settlement
To Whom It May Concern:
As US citizen, I am outraged at our government's prosecution of
Microsoft, and I believe the whole antitrust case should be closed.
I don't need a paternalistic government to tell me which software I
should buy or to use my tax dollars prosecuting companies whose
products I enjoy and find immensely valuable. This is not the proper
role of government, and such antitrust actions must, by their
nature, ultimately be destructive of consumer choice in the
marketplace.
Please accept this letter as one citizen's plea for a government
that protects me from force and fraud--;not from valuable
products successfully marketed by successful companies.
Philip Steele
691 Ora Avo Drive
Vista, CA 92084
MTC-00028303
From: jack gelin
To: Microsoft ATR
Date: 1/28/02 2:04pm
Subject: Microsoft Settlement
1662 E 24th Street
Brooklyn, NY 11229
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I understand the Courts will make their final decision next week
on whether the proposed Microsoft settlement benefits the public.
I'd like to express my feeling on this issue.
Microsoft did not get off easy. The settlement was arrived at
after extensive negotiations with a court-appointed mediator. The
Company agreed to terms that extend beyond what was expected in the
suit.
They also agreed to design future versions of Windows, starting
with an interim release of Windows XP, to provide a mechanism to
make it easy for computer companies, consumers and software
developers to promote non-Microsoft software within Windows. This
mechanism will make it easy to add or remove access to features
built in to Windows or to non-Microsoft software. Consumers will
have the freedom to choose or change their configuration at any
time.
Microsoft really needs to get back to business because they
helped the economy far more than they could ever hurt the economy.
Let's end the litigation!!
Sincerely,
Jack Gelin
cc: Representative Anthony David Weiner
MTC-00028304
From: Fred Murhammer
To: Microsoft ATR
Date: 1/28/02 2:07pm
Subject: Microsoft Settlement
I am opposed to the Department of Justice's settlement with
Microsoft. I believe it is not in the public interest due to the
many loop holes in the settlement agreement. I believe that the nine
states which are opposing this settlement are acting in the public
interest. I urge the D.O.J. to join forces with these nine states,
who are seeking stiffer penalties and safeguards to be imposed on
Microsoft. If the D.O.J. settlement with Microsoft is enacted it
will allow Microsoft to return to business as usual, which is to
abuse it Monopoly position to squash competition and innovation to
the detriment of the general public.
Thank you,
Fred Murhammer
MTC-00028305
From: Bill Kirtley
To: Microsoft ATR
Date: 1/28/02 2:09pm
Subject: Microsoft Settlement
To Whom it may concern-
I am writing as a US taxpayer, voter, and citizen to protest the
Proposed Final Judgment in the matter of the United States vs.
Microsoft antitrust lawsuit.
I do not feel that the solution as proposed either punishes
Microsoft for previous anticompetitive behavior, reduce the barriers
to entry for vendors other than Microsoft innovating in the field,
or inhibits Microsoft from engaging in monopolistic behavior in the
future.
A number of well reasoned arguments have been written on the
subject, and I won't revisit them here. One good one can be found
at: http://www.kegel.com/remedy/remedy2.html I feel that the best
way to protect the market without unduly punishing Microsoft
shareholders would be to sever Microsoft into separate companies,
and require that those companies interact with each other in an
above-the-board way. They should use only each others published
APIs. There should be clear delineation of the money being spent and
earned on individual products. Furthermore I am shocked by the
timing of this agreement. The Justice Department has abandoned all
attempts to preserve the appearance of enforcing the law. A cynical
observer might conclude that the defendant in this case was
successful in purchasing influence during the last Presidential
election season.
Thank you for your attention.
Bill Kirtley;
117 Newport Street;
Arlington MA 02476
MTC-00028306
From: The Young Family
To: Microsoft ATR
Date: 1/28/02 2:07pm
Subject: RE. Microsoft Settlement
Please accept the settlement as is. This has got to end. Thank
You,
Sondra Young
MTC-00028307
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:05pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel
[[Page 28245]]
going to those supposedly harmed by Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Mary Ellen Torres
121 Crest Haven Drive
Belleville, IL 62221-;4387
MTC-00028308
From: james bohan
To: Microsoft ATR
Date: 1/28/02 2:08pm
Subject: RE: M.S. case
I think that at the very least they should be broken up. In
addition, I would recommend that the us gov not spend any more money
on their operating systems, when there are cheaper and better ones
out there.
MTC-00028309
From: Hugh B. Brawford
To: Microsoft ATR
Date: 1/28/02 2:08pm
Subject: Microsoft anti- trust settlement
I support the settlement..it is time to encourage our hard
working succesful USA businessmen.
Thank you
Hugh B. Brawford C.R.S.
MTC-00028310
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 2:08pm
Subject: Microsoft Settlement
Here is a letter I am trying to fax you. The fax lines are very
busy so I'll give email a try.
(See attached file: BonnieMS.doc)
Bonnie F. Wood
Provident Mutual Life Insurance Company
B3S
Bonnie--;[email protected]
610-;407-;1462
fax 302-;452-;7264
MTC-00028310--;0001
Bonnie Wood
116 Timber Springs Lane
Exton, PA 19341
January 28, 2002
Attorney General John Ashcroft Fax 1-;202-;307-;1454
US Department of Justice Page 1 of 1
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
This letter is to give my support to the Microsoft and
Department of Justice settlement. Microsoft is one of our greatest
companies and I resent the government interference in what is
basically competition between technology companies. I doubt whether
Microsoft has done anything that the other firms have not. More
likely, the other firms could not compete and have gone crying to
the government. They just want a bigger piece of the pie.
You don't have to look any further than AT&T to see the
havoc that can result from breaking up certain so-called monopolies.
AT&T was deemed a monopoly while we had the best service in the
world. Now, no one can understand the half-dozen phone bills
received each month from strange sounding phone companies. Phone
companies come and go with alarming frequency, and those that stay
in business seem to be merging all back together. I often wonder if
I would have been better off if AT&T had been left alone.
The same may be true for Microsoft. In any event, Microsoft and
the Justice Department have reached an agreement. Microsoft has
agreed to open the company up to third party innovation; has agreed
to disclose internal source codes for Windows; and agreed to an
oversight committee. This is more than fair.
I urge you to give your approval to this agreement.
Thank you for your consideration of my views.
Sincerely,
Bonnie Wood
cc: Senator Rick Santorum
202-;228-;0604
MTC-00028311
From: Nutton, Thomas G
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:07pm
Subject: aol
I believe this can not go forward and in this will be in the
best interest of the USA. Tom N.
MTC-00028312
From: Adam C Powell IV
To: Microsoft ATR
Date: 1/28/02 2:10pm
Subject: Microsoft ``settlement''
Greetings,
I am writing to strongly oppose the terms of the
``settlement'' offer in the Microsoft antitrust case. That
Microsoft has violated the law is without question. But the proposed
settlement in fact rewards that company for its misdeeds, rather
than punishing them. I must remind you that the marginal cost of
software is a tiny fraction of its retail price, and therefore the
stated monetary value of the cost to Microsoft is far in excess of
the actual cost to that company. Furthermore, this
``punishment'' allows Microsoft to expand its market share
in education, which has long been one of their weakest markets. In
other words, this does not punish Microsoft at all, and in fact
rewards their lawbreaking activity, handing them more of a monopoly
on a silver platter.
As an administration and political party which prides itself on
being ``tough on crime'', I would urge you to not reward
Microsoft for commiting a crime whose impact on society is
unmeasurable. The nation awaits your decision, and hopes that you
will bring about justice in this case.
Sincerely,
Adam Powell http://lyre.mit.edu/powell/
Thomas B. King Assistant Professor of Materials Engineering
77 Massachusetts Ave. Rm. 4-;117 Phone (617) 452-;2086
Cambridge, MA 02139 USA Fax (617) 253-;5418
MTC-00028313
From: James Love
To: Microsoft ATR
Date: 1/28/02 2:10pm
Subject: Microsoft Settlement
MTC-00028313--;0001
Subject: Microsoft Settlement
Date: January 28, 2002
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Email: [email protected]
(Note: In the Subject line of the e-mail,
type Microsoft Settlement.)
Fax 1-;202-;307-;1454 or
1-;202-;616-;9937
From: Ralph Nader
P.O. Box 19312
Washington, DC 20036
James Love
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036
Introduction
Having examined the proposed consent final judgment for USA
versus Microsoft, we offer the following comments. We note at the
outset that the decision to push for a rapid negotiation appears to
have placed the Department of Justice at a disadvantage, given
Microsoft's apparently willingness to let this matter drag on for
years, through different USDOJ antitrust chiefs, Presidents and
judges. The proposal is obviously limited in terms of effectiveness
by the desire to obtain a final order that is agreeable to
Microsoft. We are disappointed of course to see a move away from a
structural remedy, which we believe would require less dependence
upon future enforcement efforts and good faith by Microsoft, and
which would jump start a more competitive market for applications.
Within the limits of a conduct- only remedy, we make the following
observations.
On the positive side, we find the proposed final order addresses
important areas where Microsoft has abused its monopoly power,
particularly in terms of its OEM licensing practices and on the
issue of using interoperability as a weapon against consumers of
non-Microsoft products. There are, however, important areas where
the interoperability remedies should be stronger. For example, there
is a need to have broader disclosure of file formats for popular
office productivity and multimedia applications. Moreover, where
Microsoft appears be given broad discretion to deploy intellectual
property claims to avoid opening up its monopoly operating system
where it will be needed the most, in terms of new interfaces and
technologies. Moreover, the agreement appears to give Microsoft too
many opportunities to undermine the free software movement.
We also find the agreement wanting in several other areas. It is
astonishing that the agreement fails to provide any penalty for
Microsoft's past misdeeds, creating both the sense that Microsoft is
escaping punishment because of its extraordinary political and
economic power, and undermining the value
[[Page 28246]]
of antitrust penalties as a deterrent. Second, the agreement does
not adequately address the concerns about Microsoft's failure to
abide by the spirit or the letter of previous agreements, offering a
weak oversight regime that suffers in several specific areas.
Indeed, the proposed alternative dispute resolution for compliance
with the agreement embraces many of the worst features of such
systems, operating in secrecy, lacking independence, and open to
undue influence from Microsoft.
OEM Licensing Remedies
We were pleased that the proposed final order provides for non-
discriminatory licensing of Windows to OEMs, and that these remedies
include multiple boot PCs, substitution of non-Microsoft middleware,
changes in the management of visible icons and other issues. These
remedies would have been more effective if they would have been
extended to Microsoft Office, the other key component of Microsoft's
monopoly power in the PC client software market, and if they
permitted the removal of Microsoft products. But nonetheless, they
are pro-competitive, and do represent real benefits to consumers.
Interoperability Remedies
Microsoft regularly punishes consumers who buy non-Microsoft
products, or who fail to upgrade and repurchase newer versions of
Microsoft products, by designing Microsoft Windows or Office
products to be incompatible or non- interoperable with competitor
software, or even older versions of its own software. It is
therefore good that the proposed final order would require Microsoft
to address a wide range of interoperability remedies, including for
example the disclosures of APIs for Windows and Microsoft middleware
products, non-discriminatory access to communications protocols used
for services, and non- discriminatory licensing of certain
intellectual property rights for Microsoft middleware products.
There are, however, many areas where these remedies may be limited
by Microsoft, and as is indicated by the record in this case,
Microsoft can and does take advantage of any loopholes in contracts
to create barriers to competition and enhance and extend its
monopoly power.
Special Concerns for Free Software Movement
The provisions in J.1 and J.2. appear to give Microsoft too much
flexibility in withholding information on security grounds, and to
provide Microsoft with the power to set unrealistic burdens on a
rival's legitimate rights to obtain interoperability data. More
generally, the provisions in D. regarding the sharing of technical
information permit Microsoft to choose secrecy and limited
disclosures over more openness. In particular, these clauses and
others in the agreement do not reflect an appreciation for the
importance of new software development models, including those
``open source'' or ``free'' software development
models which are now widely recognized as providing an important
safeguard against Microsoft monopoly power, and upon which the
Internet depends.
The overall acceptance of Microsoft's limits on the sharing of
technical information to the broader public is an important and in
our view core flaw in the proposed agreement. The agreement should
require that this information be as freely available as possible,
with a high burden on Microsoft to justify secrecy. Indeed, there is
ample evidence that Microsoft is focused on strategies to cripple
the free software movement, which it publicly considers an important
competitive threat. This is particularly true for software developed
under the GNU Public License (GPL), which is used in GNU/Linux, the
most important rival to Microsoft in the server market. Consider,
for example, comments earlier this year by Microsoft executive Jim
Allchin: http://news.cnet.com/news/
0-;1003-;200-;4833927.html ``Microsoft exec
calls open source a threat to innovation,'' Bloomberg News,
February 15, 2001, 11:00 a.m. PT
One of Microsoft's high-level executives says that freely
distributed software code such as Linux could stifle innovation and
that legislators need to understand the threat.
The result will be the demise of both intellectual property
rights and the incentive to spend on research and development,
Microsoft Windows operating-system chief Jim Allchin said this week.
Microsoft has told U.S. lawmakers of its concern while discussing
protection of intellectual property rights . . .
``Open source is an intellectual-property destroyer,''
Allchin said. ``I can't imagine something that could be worse
than this for the software business and the intellectual-property
business.'' . . .
In a June 1, 2001 interview with the Chicago Sun Times,
Microsoft CEO Steve Ballmer: again complained about the GNU/Linux
business model, saying ``Linux is a cancer that attaches itself
in an intellectual property sense to everything it touches. That's
the way that the license works,''1 leading to a round of new
stories, including for example this account in CNET.Com: http://
news.cnet.com/news/0-;1003-;200-;6291224.html
``Why Microsoft is wary of open source: Joe Wilcox and Stephen
Shankland in CNET.com, June 18, 2001. There's more to Microsoft's
recent attacks on the open-source movement than mere rhetoric:
Linux's popularity could hinder the software giant in its quest to
gain control of a server market that's crucial to its long-term
goals.
Recent public statements by Microsoft executives have cast Linux
and the open-source philosophy that underlies it as, at the minimum,
bad for competition, and, at worst, a ``cancer'' to
everything it touches.
Behind the war of words, analysts say, is evidence that
Microsoft is increasingly concerned about Linux and its growing
popularity. The Unix-like operating system ``has clearly
emerged as the spoiler that will prevent Microsoft from achieving a
dominant position'' in the worldwide server operating-system
market, IDC analyst A1 Gillen concludes in a forthcoming report*
. . . While Linux hasn't displaced Windows, it has made serious
inroads. . .] . . In attacking Linux and open source, Microsoft
finds itself competing ``not against another company, but
against a grassroots movement,'' said Paul Dain, director of
application development at Emeryville, Calif.- based Wirestone, a
technology services company*
. . . Microsoft has also criticized the General Public License
(GPL) that governs the heart of Linux. Under this license, changes
to the Linux core, or kernel, must also be governed by the GPL. The
license means that if a company changes the kernel, it must publish
the changes and can't keep them proprietary if it plans to
distribute the code externally. . .
Microsoft's open-source attacks come at a time when the company
has been putting the pricing squeeze on customers. In early May,
Microsoft revamped software licensing, raising upgrades between 33
percent and 107 percent, according to Gartner. A large percentage of
Microsoft business customers could in fact be compelled to upgrade
to Office XP before Oct. 1 or pay a heftier purchase price later on.
The action ``will encourage--;'force'' may be a
more accurate term--;customers to upgrade much sooner than they
had otherwise planned,'' Gillen noted in the IDC report*
``Once the honeymoon period runs out in October 2001, the only
way to ``upgrade'' from a product that is not considered
to be current technology is to buy a brand-new full license.''
This could make open-source Linux's GPL more attractive to some
customers feeling trapped by the price hike, Gillen said.
``Offering this form of ``upgrade protection'' may
motivate some users to seriously consider alternatives to Microsoft
technology.'' . . .
What is surprising is that the US Department of Justice allowed
Microsoft to place so many provisions in the agreement that can be
used to undermine the free software movement. Note for example that
under J.1 and J.2 of the proposed final order, Microsoft can
withhold technical information from third parties on the grounds
that Microsoft does not certify the ``authenticity and
viability of its business,'' while at the same time it is
describing the licensing system for Linux as a ``cancer''
that threatens the demise of both the intellectual property rights
system and the future of research and development.
The agreement provides Microsoft with a rich set of strategies
to undermine the development of free software, which depends upon
the free sharing of technical information with the general public,
taking advantage of the collective intelligence of users of
software, who share ideas on improvements in the code. If Microsoft
can tightly control access to technical information under a court
approved plan, or charge fees, and use its monopoly power over the
client space to migrate users to proprietary interfaces, it will
harm the development of key alternatives, and lead to a less
contestable and less competitive platform, with more consumer lock-
in, and more consumer harm, as Microsoft continues to hike up its
prices for its monopoly products.
Problems with the term and the enforcement mechanism Another
core concern with the proposed final order concerns the term of the
agreement and the enforcement mechanisms. We believe a five-to-seven
year term is artificially brief, considering that this case has
already been
[[Page 28247]]
litigated in one form or another since 1994, and the fact that
Microsoft's dominance in the client OS market is stronger today than
it has ever been, and it has yet to face a significant competitive
threat in the client OS market. An artificial end will give
Microsoft yet another incentive to delay, meeting each new problem
with an endless round of evasions and creative methods of
circumventing the pro-competitive aspects of the agreement. Only if
Microsoft believes it will have to come to terms with its
obligations will it modify its strategy of anticompetitive abuses.
Even within the brief period of the term of the agreement,
Microsoft has too much room to co-opt the enforcement effort.
Microsoft, despite having been found to be a law breaker by the
courts, is given the right to select one member of the three members
of the Technical Committee, who in turn gets a voice in selecting
the third member. The committee is gagged, and sworn to secrecy,
denying the public any information on Microsoft's compliance with
the agreement, and will be paid by Microsoft, working inside
Microsoft's headquarters. The public won't know if this committee
spends its time playing golf with Microsoft executives, or
investigating Microsoft's anticompetitive activities. Its ability to
interview Microsoft employees will be extremely limited by the
provisions that give Microsoft the opportunity to insist on having
its lawyers present. One would be hard pressed to imagine an
enforcement mechanism that would do less to make Microsoft
accountable, which is probably why Microsoft has accepted its terms
of reference.
In its 1984 agreement with the European Commission, IBM was
required to affirmatively resolve compatibility issues raised by its
competitors, and the EC staff had annual meetings with IBM to review
its progress in resolve disputes. The EC reserved the right to
revisit its enforcement action on IBM if it was not satisfied with
IBM's conduct.
The court could require that the Department of Justice itself or
some truly independent parties appoint the members of the TC, and
give the TC real investigative powers, take them off Microsoft's
payroll, and give them staff and the authority to inform the public
of progress in resolving compliance problems, including for example
an annual report that could include information on past complaints,
as well as suggestions for modifications of the order that may be
warranted by Microsoft's conduct. The TC could be given real
enforcement powers, such as the power to levy fines on Microsoft.
The level of fines that would serve as a deterrent for cash rich
Microsoft would be difficult to fathom, but one might make these
fines deter more by directing the money to be paid into trust funds
that would fund the development of free software, an endeavor that
Microsoft has indicated it strongly opposes as a threat to its own
monopoly. This would give Microsoft a much greater incentive to
abide by the agreement.
Failure to address Ill Gotten Gains
Completely missing from the proposed final order is anything
that would make Microsoft pay for its past misdeeds, and this is an
omission that must be remedied. Microsoft is hardly a first time
offender, and has never shown remorse for its conduct, choosing
instead to repeatedly attack the motives and character of officers
of the government and members of the judiciary.
Microsoft has profited richly from the maintenance of its
monopoly. On September 30, 2001, Microsoft reported cash and short-
term investments of $36.2 billion, up from $31.6 billion the
previous quarter--;an accumulation of more than $1.5 billion per
month.
It is astounding that Microsoft would face only a ``sin no
more'' edict from a court, after its long and tortured history
of evasion of antitrust enforcement and its extraordinary embrace of
anticompetitive practices--; practices recognized as illegal by
all members of the DC Circuit court. The court has a wide range of
options that would address the most egregious of Microsoft's past
misdeeds. For example, even if the court decided to forgo the break-
up of the Windows and Office parts of the company, it could require
more targeted divestitures, such as divestitures of its browser
technology and media player technologies, denying Microsoft the
fruits of its illegal conduct, and it could require affirmative
support for rival middleware products that it illegally acted to
sabotage.
Instead the proposed order permits Microsoft to consolidate the
benefits from past misdeeds, while preparing for a weak oversight
body tasked with monitoring future misdeeds only. What kind of a
signal does this send to the public and to other large corporate law
breakers? That economic crimes pay!
Please consider these and other criticisms of the settlement
proposal, and avoid if possible yet another weak ending to a
Microsoft antitrust case. Better to send this unchastened monopoly
juggernaut a sterner message. 1 http://www.suntimes.com/output/tech/
cst-fin-micro01.html ``Microsoft CEO takes launch break with
the Sun-Times,'' Chicago Sun Times, June 1, 2001.
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
http://www.cptech.org,
mailto:[email protected]
voice: 1.202.387.8030 fax 1.202.234.5176 mobile 1.202.361.3040
MTC-00028314
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:10pm
Subject: Microsoft Settlement!!!!!--;-Tunney Act Period
Attn: DOJ and Judge: This note is to support the proposed
settlement in the Microsoft case. It is about time this case be
ended. In all the years of watching litigation, this case is the
clearest example I have ever sceen of a competitor induced lawsuit.
Clearly, the Clinton Adm raised millions and got the Calif.
electoral votes in exchange for this case. Further, so called judge
jackson railroaded Microsoft in every aspect of the case. As a
CONSUMER the prices paid by me and every one else is essentially
nominal to the benefits realised by use of this software.
Each computer based ahrdware and software company seeks to use
their innovation over the competition. These competitors just dont
have the skill and talent to realize the kind of success that has
come to Microsoft. Please put an end to this matter as clearly as
can be done.
Thank You!!
David R. Gray, Esq.
([email protected])
MTC-00028315
From: LETTIE POE
To: Microsoft ATR
Date: 1/28/02 2:11pm
Subject: ``Microsoft Settlement''
Gentlemen:
URGENT REQUEST!!!
Three years ago, the U. S. Department of Justice charged
Microsoft with having engaged in anti-competitive behavior based on
allegations by its top competitors. I feel that Microsoft was
singled out in this action taken, and now I realize that The Justice
Department is in the final stages of deliberating on the proposed
Microsoft settlement to decide whether to accept the settlement or
to litigate it further.
Personally, I believe that the proposed settlement offers a
reasonable compromise that will enhance the ability of seniors, like
myself, and all Americans, as well, to access the internet and use
innovative software products to make their computer experience
easier and more enjoyable. I am e-mailing you at this time to
request that you not allow Microsoft's competitors to undermine the
settlement negotiated with the federal government and nine states;
although, the settlement is tough on Microsoft as it is, I feel it
is a fair outcome for all parties concerned particularly senior
consumers. I feel that it not only will benefit the seniors, but
this settlement more importantly will have a very positive impact on
the American economy and will help to pull the Country from the jaws
of recession in which we have been experiencing over the past year.
I feel that consumer interests have been served well, and that
now the time has come to end this costly and damaging litigation.
Continuing with this legal battle further will only benefit the
wealthy competitors, lawyers, and special interest groups.
Please do not litigate this matter further, and go ahead and
accept the settlement for the betterment of the public interest; all
the Country.
Sincerely,
Lettie Ann Poe
2214 Hemerick Place
Clearwater, FL 33765-;2227
Telephone Number (727) 796-;6992
E-mail [email protected]
CC: Lettie Ann Poe
MTC-00028316
From: a p
To: Microsoft ATR
Date: 1/28/02 2:11pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally-
I implore you to reconsider the guidelines set forth in the
Proposed Final Judgment. Most honorable one, please analyzes the
true facts in the final settlement and judge
[[Page 28248]]
accordingly. In the past week it has been brought to my attention a
most astonishing development in the MS case. A Final Settlement has
been reached between the two parties. However, based on the details
provided to me, the PFJ overturns findings by the U.S. Court of
Appeals indicts Microsoft on violating antitrust laws. After further
review of the proposed settlement I find it hard to believe the
Justice Department would withdraw their charges against Microsoft.
In fact, based on the assessments made on the proposal, Microsoft
will go scotch free from any charges of wrong doing in the matter.
How can this be?
There are several glaring flaws in the PFJ. However, non-so more
apparent than allowing an absentee landlord to govern Microsoft.
With all due respect, the final settlement provides no security to
restrict MS from breaking any laws in the future. In my humble yet
accurate opinion, the future governing body, implementing certain
rules or regulations and forcing MS to adhere by them, will not be
stringent nor forceful enough to make any dramatic changes.
Similarly, I am not convinced that these stiff penalties applied
to MS will ensure the security and future growth of other companies.
A stiffer penalty and a whole new framework of laws must be
established to justly punish MS. The Proposed Final Judgment
abstains from such justification and order. I conclude therefore by
objecting to the Proposed Final Judgment.
All the Best,
Ariel Paraso
3450 West 8539 South
West Jordon, UT 84088
MTC-00028317
From: Grant Young(b)
To: Microsoft ATR
Date: 1/28/02 2:11pm
Subject: Microsoft Settlement
January 28, 2002
Renata Hesse, Trial Attorney
Antitrust Division--;US Department of Justice
601 D Street NW--;Suite 1200
Washington, DC 20530
[email protected]
Attorney Hesse:
I am emailing to urge the approval of the settlement of the
Microsoft antitrust case. The DOJ, Microsoft and the Attorney
Generals that have signed onto this case deserve enormous credit for
finding a way to settle this case.
Our economy is the envy of the rest of the world because we have
created a successful free-market based competition. As with any
competition there are winners and losers. Microsoft has been the
leader of the software industry for so many years because they
create good products at a decent price. The people who run this
company have worked hard to achieve this and work even harder to
protect the companies leading status.
While there are those who believe Microsoft has engaged in
unfair practices and even harmed consumers, I fail to see where this
has been proven over the last 4 years of this case. I believe that
many of those involved in this case have come to see it is a losing
battle. Microsoft will not be broken up.
Settleing this case is the right thing to do.
Respectfully,
Grant Young
3000 Grand Avenue, #910
Des Moines, Iowa 50312
[email protected]
MTC-00028318
From: richard sonnier
To: Microsoft ATR
Date: 1/28/02 2:06pm
Subject: [Fwd: Microsoft kills Real World/Great Plains Classic]
direct quote from letter to customers dated january 22,2002.
``Your Microsoft Great Plains Classic accounting solution
(peviously known as Real World Classic) has benn an important part f
both your and our business success, Since it has been available many
companyies have relied on Classic to accurately track and report
financial information, we are proud to have played a role in your
business in the past and we hope to play that role in the
future.''
``due to the flexibility of Windows-based products, sales
of Classic have been dropping, with demand for technical support
steadily declining.
TEREFORE WE ARE ANNOUNCING THAT TELEPHONE SUPPORT OF CLASSIC
WILL END JANUARY 31,2003, AND ELECTRONIC SUPPORT WILL END
MARCH31,2003, iN ADDITION SALES OF CLASSIC WILL END JUNE 30,2002,
THIS NOTICE GIVES YOU ADEQUATE TIME TO WEIGH YOUR OPTIONS AND
DETERMINE YOUR NEXT STEP''
1. CLASSIC RUNS ON MANY PLATFORMS (UNIX,DOS,IBM,SUN, HP) AND THE
ONLY OPTIONS GIVEN TO CUSTOMERS IS CONVERT AT EXTREME EXPENSE TO
``WINDOWS-BASED''.
2. THE SALES AND SUPPORT ARE DECLINING BECUASE MICROSOFT HAS NOT
FURNISHED ANY ENCHANCEMENTS!!!!
3. MICORSOFT PURCHASED GREAT PLAINS WHICH HAD PREVIOUSLY
PURCHASED REAL WORLD LESS THEN 1 YEAR AGO.
AND ARE NOT ELIMINATEING 20,000+ USERS PF OTHER PLATFORMS. tHIS
IS A CLEAR VIOLATIONS OF ANTITRUST.
BY THE WAY MICROSOFT DID THE EXACT SAME THING ``FOX
SOFTWARE'' BOUGHT/CHANGED TO FOXPRO ``WINDOWS-BASE:''
AND ELIMINATED OTHER PLATFORMS.
RICHARD L. SONNIER
GULF CENTRAL SYSTEMS
800 MIRE STREET
HOUMA, LA 70364
985-;851-;6674
[email protected]
MTC-00028319
From: James Hertzog
To: Microsoft ATR
Date: 1/28/02 2:12pm
Subject: microsoft
Dear Mr. Ashcroft:
Why are you not letting Microsoft get back to work? Please
encourage research and development in our country instead of
persecuting it.
Sue N. Hertzog
248 Hwy 289N
Ash Flat, AR 72513
MTC-00028320
From: Stephen Calandrino
To: Microsoft ATR
Date: 1/28/02 2:13pm
Subject: Microsoft Settlement
8 Domidion Court
Middletown, New Jersey 07748
January 3, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you to express my belief that the time has come to
end the Microsoft antitrust case. The Justice Department's proposed
settlement plan should be implemented immediately.
I believe the plan is more than fair from the
complainants'' standpoint. The procedures and policies
Microsoft will adopt exceed the original demands of its competitors.
Microsoft will have to share code, change marketing and licensing
practices, and submit to government oversight. The company will open
itself up to more than mere market competition; it will be required
to aid its competitors. This is more than sufficient.
This company should be allowed to return to the business of
developing and producing the world's most accessible computer
systems. It's time to end this case.
Sincerely,
Stephen Calandrino
MTC-00028321
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:11pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Americo Cardillo
168 Lake Garden Dr.
Cranston, RI 02920
MTC-00028322
From: Bryce Carey
To: Microsoft ATR
Date: 1/28/02 2:11pm
Subject: Microsoft Settlement
[[Page 28249]]
Hello,
I understand you are collecting comments on the proposed
Microsoft settlement under the provisions of the Tunney Act. Please
count me as an interested party (consumer and citizen) who is
OPPOSED to the settlement as it currently stands.
I would like to see the settlement re-negotiated with terms that
are more carefully selected to protect competitors to Microsoft and
especially to change the provisions that could potentially allow
Microsoft to inhibit competition from non-commercial software
projects such as the Open Source software available on the GNU/Linux
platform. As a Monopoly, Microsoft must be actively restricted from
tilting the proverbial ``level playing field'' by their
legal and marketing influences. I do not think the current
settlement proposal does enough to assure a fair competitive
environment.
Thank you,
Ralph Bryce Carey
[email protected]
Instructional Specialist,
Aztec Middle College,
Tucson Unified School District
Tucson, Arizona
MTC-00028323
From: Jules Feldmann
To: Microsoft ATR
Date: 1/28/02 2:16pm
Subject: Microsoft Settlement
January 28, 2002
TO: Renata B. Hesse
U.S. Department of Justice
In 1976, I purchased a computer to use in my business. It was an
IBM and I was forced to use their proprietary ``operating
system.'' Application programs for this computer were limited
as to vendors because each vendor had to develop their software for
use on a specific machine or operating system.
When Microsoft entered the scene, they utilized an ``open
architecture'' approach allowing their ``operating
system'' to utilize any brand of computer. Because their
``operating system'' was not specific to a particular
hardware brand, the soffware application developers were able to
write application programs that would work on any computer running
the DOS operating system. Because of this ``open
architecture'' we consumers were given the choice of many more
computer hardware manufacturers, rather than being limited to the
manufacture's computer that ran our intended application.
There are several operating systems available that offer an
alternative to MS DOS or Windows. Microsoft has been a boon to the
small business computer user and to the U.S economy as well.
The government's antitrust activities directed at Microsoft has
damaged our economy to a much greater extent than leaving Microsoft
to the forces of a free market.
I believe in free markets and I am convinced that a new
competitor would have eventually developed a challange to Microsoft
by offering a viable alternative.
It is time for the government to stop pursuing this destructive
course of antitrust prosecution.
Accept the settlement and let the industry move forward.
Thank you for taking the time to listen to my concerns.
Jules Feldmann, CPA
[email protected]
MTC-00028324
From: D P
To: Microsoft ATR
Date: 1/28/02 2:15pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I oppose the proposed resolution in the MS case, better know as
the Proposed Final Judgment. Over and above the usual economic risks
presented by an unchecked monopolist--;rising prices and
monochromatic innovation the nations computer infrastructure will be
increasingly vulnerable to attack if a single software system
predominates.
Obviously I am referring to Microsoft.
Suppose that 80 or 90percent of the world's grain supply came
from a single variety of corns. We would be faced with the
unacceptable risk that some single disease, might wipe out an
enormous portion of our food supply. Having only one kind of
operating system or one kind of browser would make it terribly
easier for saboteurs to bring the entire Internet to its knees. For
one entity, such as Microsoft, to control 80 to 90 percent of the
market for PC operating systems, Internet browsers, e-mail readers,
and office productivity software is clearly a significant security
risk. To then allow that monopoly to actively attempt to drive out
its remaining competition would hardly be in the public interest.
Diversity is the key in producing economic prosperity and improving
the society as a whole.
It's now up to you, Judge Kollar-Kotally, to decide whether the
proposed settlement between Microsoft and the DoJ is a correct and
just solution. However I believe it contains too many loopholes to
create the desired effect, changing MSs behavior, let alone bring
forth a certain types of diversity which would enhance our security.
Kind Regards,
Debbie Paraso
3450 West 8539 South
West Jordon, UT 84088
MTC-00028325
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:17pm
Subject: Microsoft Settlement
As a professional developing both computer hardware and
software, I feel that the proposed DOJ settlement with Microsoft
will not prevent Microsoft from continuing to act contrary the the
best interest of the public.
In particular, non-profit organizations are particularly harmed
by allowing Microsoft to refuse cooperation. If non-profit
organizations developing software for free distribution are not in
the public interest, what is ? Microsoft became the unstoppable
behemoth that it is today through unsavory and illegal commercial
tactics. It must be held accountable and punished.
The proposed DOJ settlement appears to be written by Microsoft,
for Microsoft.
Please strike down this proposal, and continue to pursue a
solution which adequately addresses past Microsoft actions, and
prevents future abuses.
Sincerely,
John A. Watlington
4 Pinewood Rd.
Acton, MA 01720
MTC-00028326
From: Philip I. Long
To: Microsoft ATR
Date: 1/28/02 2:15pm
Subject: Microsoft Settlement
As I'm sure many have pointed out, the current settlement is
deficient for many reasons. I would like try to summarize the most
important issues as I see them:
Microsoft was found to be a monopolist due to the applications
barrier to entry. Microsoft has shown itself very adept at
leveraging it's desktop monopoly to creating barriers to entry, as
well as defending that desktop monopoly. Therefore an effective
settlement must take into account that the monopolist is strong,
smart, unrepentant, and resistant to any measures that diminish it's
control.
The necessary and sufficient remedy to a monopolist is the
possibility for competition in this case, several things would be
helpful to allow this to occur:
1) Microsoft must lack the ability to use intellectual property
protection (patents, trade secrets, etc.) to prevent
--;any--; entity (company, open source coalition, etc.) to
create and distribute (in any way they choose) their own
implementation of Microsoft functionality in any of their products.
In other words, they must not be allowed any means to stop another
entity from creating and distributing their own implementation of
anything they want.
2) Microsoft must expose the functional specifications of all of
their products so that others could implement them. This includes
protocols, file formats, APIs, etc. It should also include all
information it's own developers have regarding future directions. I
should emphasize that I believe that Microsoft has a right to keep
secret their own implementation. Requiring the monopolist to publish
the source code to all of their software (without granting the
license to copy or compile it) would be effective, but would go too
far in my opinion.
3) Microsoft should be prohibited from using their PC desktop
monopoly to promote (in any way) other business initiatives. Eastman
Kodak's experience with their photo software is telling cautionary
tale on this point. As is AOL's/Real's struggles with the MS media
player. In particular, the control Microsoft aims to obtain with
passport is in need of very close scrutiny. Any effective settlement
should prevent the monopolist from approaching these or other
initiatives in this manner.
4) Any settlement should prohibit Microsoft from taking any
action that discourages alternative desktop operating system
adoption. A particularly egregious examples is the rumored OEM
license agreement prohibiting the ability to boot to other operating
systems if a Microsoft operating system is also present. This works
[[Page 28250]]
to prevent Dell, Gateway, etc. from giving the public an option to
have a PC that would multiboot BE, Linux, etc. in addition to
windows. Clearly this helps the monopolist maintain it's monopoly,
but hurts consumers. Another example would be discontinuing existing
support of on alternative platforms. Microsoft should be prohibited
from, for example, releasing windows versions of MS Office without
simultaneously releasing a Mac version. I would not go so far as to
say that they should be forced to release a Linux version of Office,
but that would be nice (and I'd buy it if they did even at full
retail of $500 or whatever they are charging these days).
5) Because the harm they cause is hidden in secret agreements,
Microsoft should be prohibited from keeping secret any contracts
they enter into.
They should all be available for public review.
I believe that Microsoft would balk at any settlement that
effectively addressed any of these points. That they object should
not be of any concern to the public or justice because they benefit
from intellectual property laws (cf their BSA campaign). As they
have built their corporation on the benefit of these laws and have
been found to have gone too far and become a monopoly, they must be
subject to measures that could not be fairly applied to an entity
that had not violated the law to the detriment of consumers. I do
not expect them to take kindly to the notion that they must compete
on price and quality alone, but it would be of great benefit to
consumers, innovation, and the global economy if they had to.
I urge the Department of Justice to ensure that any settlement
effectively address these concerns.
Thank You,
Philip Long
373 Daniels Rd.
Barboursville, VA 22923-;2808
--;
Phil Long
Lead Software Applications Development Engineer, The MITRE
Corporation's
Center for Advanced Aviation System Development
Voice: (703) 883-;5810 Fax: (703) 883-;1367
MTC-00028327
From: Peter Olend
To: Microsoft ATR
Date: 1/28/02 2:16pm
Subject: Microsoft Settlement
4848 Carberry Creek Road
Jacksonville, OR 97530-;9329
January 15, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I was pleased to hear that the Department of Justice and many of
the states decided to settle the Microsoft antitrust case. I would
like the judge handling the case to approve the settlement.
In my opinion, this case should never have been brought against
Microsoft. Through hard work and innovation, Microsoft has changed
our world for the better. Microsoft has broken the inter-operability
barrier and operational obfuscation that the likes of IBM, Sperry-
Rand, Digital Equipment Corporation, Varian, ATT and others
carefully nurtured prior to the 1980's.
For this, Microsoft is being punished under the guise that they
have engaged in anti-competitive behavior. Do you remember the way
ATT handled the release of the original Kernigan and Ritchy UNIX
into the public domain and the antics of the ``UNIX
Consortium''? That was anti-competitive behavior. Nothing
breeds contempt like success. However, in the interest of wrapping
up this suit, I support Microsoft's decision to be bound by the
terms of the settlement agreement.
Microsoft has gone so far as agreeing to disclose to its
competitors various interfaces internal to the Windows operating
system. As a development systems engineer, I find nothing inhibiting
about the public interfaces. They have also agreed not to take
action against those who violate Microsoft's intellectual property
rights. Similarly, they will not take action against computer
manufacturers who ship computers containing the competition's
software.
Settling this case is in the best interests of all involved. I
urge the Court to approve this settlement agreement. Thank you.
Sincerely,
Peter Olend
MTC-00028328
From: Chauncey Orton
To: Microsoft ATR
Date: 1/28/02 2:18pm
Subject: Microsoft Settlement
Attached is our pro-opinion for the settlement of the Microsoft
case.
CC:
[email protected]@
inetgw
29651 Wilhite Lane
Valley Center, CA 92082
January 27,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Approval of the Microsoft case settlement will be in the best
interests of America. The case has gone on long enough for the
parties to state their cases and present their evidence. Also, the
settlement addresses all the issues in the litigation and goes
beyond the scope of the litigation. The parties could agree to terms
beyond the litigation, but the judge would be restricted to only the
formal issues. So, the settlement is better than anything even the
judge could do. What is more, the settlement means that there would
be no time consuming and potentially derailing court proceedings.
The economy does not have stability needed for growth when one of
America's leading industries is in an unsettling wrangle.
The settlement will provide greater flexibility, cooperation and
stability within the information technology industry. Microsoft will
open up its business practices and software code. A committee of
technically skilled and recognized software engineering expert
parishioners will see that the terms are followed and hear and
investigate any complaints.
Enriching our legal system further is counter productive to
expanding businesses. A one time legal business charge this past
year, of 2/3 of a billion dollars to defend itself from its own
government, is outrageous. The U.S. government is very concerned
about what Enron did to their employee's retirement funds and they
should be. But on a much larger scale, the government should look at
what their actions did to the Microsoft stockholders''
retirement funds.
We look forward to your leadership of bringing the Gov. vs.
Microsoft's legal case to an end and focus on the real threat
against the U S.- the terrorist.
Thank you.
Sincerely,
Steve and Suzanne Orton
cc: Representative Darrell Issa
MTC-00028329
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:21pm
Subject: I support the settlement
Rose Ryba Pomeranz
16 High Meadow Lane
Oyster Bay Cove, NY 11771
MTC-00028330
From: Lee Kenna
To: Microsoft ATR
Date: 1/28/02 2:20pm
Subject: Microsoft Settlement
I believe that the Proposed Final Judgement in the Microsoft
case is flawed, principally because it allows continued
``bolting'' of non--; integral software to the Windows
operating system, in such a way as to minimize the opportunity for
other (non -Microsoft) competing products in the market space for
these types of non--;integral software. Competitiveness and the
American economy are not served by allowing Microsoft, in spite of
the Judges'' ruling that they had acted unlawfully, to continue
these practices.
Respectfully,
Lee M. Kenna
CEO
SIMCO Electronics
1178 Bordeaux Drive
Sunnyvale, Ca. 94089
Tel 408-;734-;9750
MTC-00028331
From: G M
To: Microsoft ATR
Date: 1/28/02 2:20pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am opposed to the back-room deal cut between Microsoft and the
DoJ. Several close friends and relatives have informed of this
matter entailing a proposed settlement, notoriously understood as
the Proposed Final Judgment. Truthfully from where I sit, I dont
like what I see.
I cant believe the Justice Dept. threw out all court findings
indicting Microsoft for all illegal activities. First of all the
Proposed Final Judgment grants MS a government mandated monopoly
that threatens to destroy any and all serious Microsoft competitors.
Im all for free enterprise and what it symbolizes. To strike a huge
blow against the spirit of free enterprise, one need not look any
further than to allow MS to monopolize every sector, whether it is
the gaming industry or the
[[Page 28251]]
software industry, by eradicating most if not all competitors. By
all means diversity is one essential ingredient in maintaining a
healthy industry and more importantly a thriving economy.
I submit my disapproval to the Proposed Final
Judgment.
Kind Regards,
Gladys Montefrio
6024 Palamino Court
Stockton, CA 95210
MTC-00028332
From: McGreal, Martin P.
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:40pm
Subject: Microsoft Settlement
This settlement proposal--;agreed to by the DOJ and all but
nine states--; seems alarmingly lenient for a company that was
proven not only to be an illegal monopoly, but to have repeatedly
abused that monopoly.
I vehemently oppose this settlement, wishing for more austere
punishment of the defendant, as well as provisions for the
prevention of future monopolisic abuse by the defendant.
Sincerely,
Martin McGreal
St Louis, MO
MTC-00028333
From: Argo, Rich W.
To: Microsoft ATR
Date: 1/28/02 2:10pm
Subject: Microsoft Settlement
I believe that the proposed settlement is a bad idea.
First and foremost, the proposed settlement primarily deals with
Microsoft's dealings with OEMs. While this is a start, it does not
go nearly far enough.
It also does not appear to enable OEMs to ship a PC with no
operating system on it at all. Many users wish to install Linux,
FreeBSD or many other free and open source operating systems and
should not be forced to pay for an operating system that they do not
want to use.
Furthermore, additional provisions need to be implemented in the
settlement that will force Microsoft to make versions of Microsoft
Office available for the 3 most popular desktop operating systems
Currently that would be Linux, Macintosh and Windows. Currently
Microsoft only produces versions for Windows and Macintosh. Macs
aren't used in the business world very much and are more expensive
relative to Intel-based PCs--;which is what Microsoft Windows
runs on. If there was a version of Office available for Linux, there
would then be a choice for consumers that use Intel processors. This
would open up competition for operating systems on the Intel
processing platform as many businesses are reluctant to switch to
another OS since they may not be able to run Office applications. In
order to help enforce the spirit of this proposal, provisions would
have to be implemented to force Microsoft to release versions of
Office concurrently on all platforms.
Additionaly, all Windows API's should be open so that
competitors that wish to produce software for Windows would be
allowed to compete fairly with Microsofts products. All Microsoft
Office file formats should be standardized with an open API so that
anyone wishing to compete with an Office-like package could do so
fairly.
Microsoft should not under any circumstances be allowed to ship
any additional Microsoft software product free of charge along with
their Windows operating system. The only exceptions to this rule
should be utilities such as Notepad, WordPad and the various command
line utilities that currently ship with Windows. Internet Explorer
should not ship as a free part of Microsoft Windows. Neither should
Microsoft Money. No Microsoft software that competes with another
software product should be included with the operating system. If
other competing products are offered for download for free from
competitor's sites, then Microsoft should be allowed to offer free
downloads for those kinds of products, but should not be allowed to
ship those with the operating system. If they are allowed to do so,
they are unfairly extending their monopoly power. If Microsoft so
wishes to ship a software product in with their operating system,
they should have to submit that request to a third party committee
that would vote on whether or not to allow said inclusion, but only
after a 90 day period whereby anyone wishing to protest said
inclusion is given the opportunity to do so before the committee in
person, via email or paper mail.
If Microsoft is found to have violated any part of the
settlement they should be fined a minimum of $1 billion. On the
surface, this may sound like an exorbant amount. However, nothing
short of this will likely prevent Microsoft from violating the
settlement and adequately punish them if they do.
Thank you,
Richard W. Argo
Web Designer, McLeodUSA
MTC-00028334
From: Andrew Hagel
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:26pm
Subject: RE: United States v. Microsoft Settlement
Dear Sir or Madam:
After reviewing the documents concerning the case, it is my
personal opinion that the remedies currently proposed by the
Department of Justice are in the best interests of the consumer, and
that the marketplace is the appropriate competitive venue, as
opposed to the court system.
Yours truly,
Andrew Hagel
CC:'andrewhagel(a)mediaone.net''
MTC-00028335
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:25pm
Subject: Microsoft Settlement
I would like it to be known that I fully support the settlement
proposed by the Government and Microsoft. This decision will bring
about stability and confidence to the technology sector and conclude
a case that I strongly disagree with. Microsoft makes products that
benefit the public. As a software developer who uses Internet
Explorer in most of my projects, I've never understood the lawsuit.
Why so much attention was directed at I.E. hurting consumers and
competitors I will never know. No modern OS would be complete
without a web browser. In addition, I.E. is a fantastic product that
provides features and functionality that have always surpassed any
other products on the market. Please accept this document into
record as evidence of one consumer, developer and taxpayer who
agrees with settlement hopes to see the case come to a close.
Sincerely,
John Warner Lewin
CC:[email protected]@inet
gw
MTC-00028336
From: Ajay Ramachandran
To: Microsoft ATR
Date: 1/28/02 2:25pm
Subject: Microsoft Settlement.
Hello,
I wanted to write saying that the current settlement in the case
seems to be a reasonable one. While I understand that some changes
might be necessary I think it very important that the consumers be
the ones who gain from any settlement or settlement modification. In
this regard specifically it just does not make sense to entertain
other competitor wishes, they really ought to work with their
customers to provide better products for them instead of attacking
Microsoft,
Sincerely,
Ajay S. Ramachandran,
Redmond, WA.
MTC-00028337
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:27pm
Subject: Microsoft Settlement
I'm writing to express my reservations about the proposed
settlement of the anti-trust case between the United States (as
represented by the Justice department) and Microsoft Corporation. I
speak as a concerned citizen with broad and significant computing
experience. I've used computers in various capacities for over
twenty years and have worked with half a dozen different operating
system families, including the complete Microsoft family of products
from MS-DOS to XP. I also have wide experience with many computer
applications from both Microsoft and other parties.
I have provided network and systems administration of Microsoft
and Linux systems on a part-time basis and rely on secure and stable
computing environments in my primary occupation as a research and
development consultant to startup medical device companies.
The proposed settlement offers insufficient redress of
Microsoft's previous wrongs and provides too little protection from
this company's ongoing anti-competitive practices. While a just
settlement should address Microsoft's past practices, I am more
concerned that a settlement provide adequate protection to
consumers, competitors, and indeed the economy as a whole, from
[[Page 28252]]
Microsoft's ongoing and likely future anti-competitive practices.
With the release of it's latest, highly-integrated operating
system product, XP, Microsoft has demonstrated that it has no
intention of voluntarily curbing the sorts of predatory anti-
competitive practices that have enabled it prosper at the expense of
competitors and consumers alike. In my experience, succeeding
generations of Microsoft operating system products have integrated
increasing numbers of middleware applications, and the configuration
tools needed to replace these applications with third party products
have become more obscure and less effective, locking many consumers
into a monolithic, Microsoft-only environment.
The lack of choice implied by Microsoft's monolithic model of
computing is contrary to the workings of free market enterprise and
is ultimately harmful to consumers. It is apparent that this trend
has the goal of maintaining and expanding Microsoft's dominant
position in the desktop computing marketplace.
The unnecessarily tight integration of middleware applications
into its operating system products is far from the only illegitimate
tool that Microsoft has used to dominate the desktop market in the
United States. Microsoft has plausibly been accused of: extorting
exclusive installation of its products on computers by OEM
manufacturers via differential pricing, of corrupting open software
standards to gain exclusive access to important domains of
computing, and waging so-called FUD (fear, uncertainty and doubt)
campaigns against competitors and consumers. An appropriate
settlement would address not only the particulars of continued
forced, artificial integration of its products but as many of the
other tools against free competition that Microsoft has been using
as is possible. It is bad public policy and poor economics to allow
a single entity to maintain its position in the marketplace via
unfair and illegal practices. Among the particular adverse effects
of Microsoft's continued anti-competitive behavior are: stifled
innovation, corruption of the marketplace, deterioration of the
United State's position in the world's information technology
economy and unnecessary security vulnerabilities.
Though Microsoft claims to be a leader in innovation, the record
suggests that it is instead a follower (or perhaps a gatekeeper) of
innovation. The Netscape saga illustrates this point. Microsoft
failed to take the internet and its potential seriously until web's
usefulness and the great value of effective browser technology were
demonstrated by Netscape. Once Netscape was too successful to
ignore, Microsoft used all of the anti-competitive tools at its
disposal to neutralize Netscape. If Microsoft is allowed to escape
effective punishment for this infraction, it will continue its
current practices and will be a brake on rather than an engine of
innovation. This result would be a loss for everyone, except perhaps
Microsoft.
The stifling of innovation is just one of many symptoms of the
market distortion created by Microsoft's all too effective use of
anti-competitive tactics. There are a number of other ills created
by this induced market failure, the most obvious of which are
increased prices and lower product quality. Indeed, Microsoft has
managed to defy the trends toward lower price and higher quality
that typify all other aspects of the computer industry. As hardware
has become ever more capable and less expensive, the cost of the
software provided by Microsoft has remained high and improvements in
quality have been slow and ``grudging'' at best. An
overall effect of these opposing trends has been that Microsoft has
been able to garner an increasing, and I would say, excessive
fraction of every dollar spent on computers. Microsoft is richly
rewarded by the market distortions that it has been able to
engineer. It is time for these distortions to come to an end, and
for the market to freely assert itself. Then the winners will be not
only the consumers, who will get better quality at a lower price,
but other hardware and software producers who will be able to
command a more equitable share of the revenues from their products.
In the long run, Microsoft's illegitimate domination of the
domestic information technology (IT) market threatens the United
States'' preeminent position in the international IT
marketplace. Though Microsoft has a global reach, it is clear that
its market power is neither as pervasive nor as potent as it is
domestically. Because these overseas markets are less burdened by
Microsoft's stifling anti-competitive practices, they can be more
efficient and innovative. If this disparity is allowed to persist,
it is likely that the United states will suffer an erosion of its
now strong position in the world IT economy. The best way for the
United States to prevent this deterioration is to open the domestic
market to free and fair competition by preventing Microsoft from
exerting its anti-competitive tools to distort the domestic IT
market.
Microsoft has a history of using its market dominance to gloss
over security problems with its products. Rather than act quickly to
patch and publicize its security vulnerabilities, Microsoft uses all
means at its disposal to suppress news of and information about its
security problems. This ``security through obscurity''
approach is well know to be one of the worst possible responses to
computer security problems; it leaves the computing community open
to security problems for much longer than is necessary. It is
typical for weeks or even months to pass between the discovery of a
Microsoft security flaw and the company's issuance of a proper
security patch. This poor security behavior is completely
unacceptable in the face of the heightened security concerns
following the events of September 11. Though Microsoft has recently
paid lip service to improving the security of its products, it has
shown no inclination to replace its antiquated and dangerous
security model with a more open, proactive and effective model.
Indeed, its recently issued code of security ethics for Microsoft
professionals calls for strict adherence to the security through
obscurity model. This code dictates that these professionals''
paying customers be kept in the dark regarding security
vulnerabilities until such time as Microsft deems it appropriate to
reveal the problem. Microsoft's bad citizenship in regard to
security is dangerous and should not be tolerated. A properly
formulated settlement of the current case should include measures to
force Microsoft to follow a more appropriate security model.
Microsoft's anti-competitive practices are not merely
illegitimate and contrary to the principles of market capitalism and
free enterprise, they greatly harm the American people in a
significant number of concrete ways. The proposed settlement fails
to address these ills in any meaningful sense. It needs to be
reformulated to provide appropriate and strong protection of the
market and the people from Microsoft's rapacious and
counterproductive practices. A strong and effective settlement would
not only serve the cause of justice, it would preserve an important
sector of the United States'' economy from unnecessary harm.
It is imperative that the Justice department act in a wise and
decisive manner and prevent Microsoft from continuing to isolate
itself from market discipline via unfair and illegitimate means.
Michael Satteson,
St. Paul, MN
[email protected]
MTC-00028337--;0004
MTC-00028338
From: Leonard Bernstein
To: Microsoft ATR
Date: 1/28/02 2:26pm
Subject: RE: Microsoft settlement
Please accept the Microsoft settlement and bring this matter to
closure.
Thank you,
Leonard Bernstein
MTC-00028339
From: j rim
To: Microsoft ATR
Date: 1/28/02 2:29pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I object to the so-called Proposed Final Judgment in to
Microsoft case.
As every one knows, Microsoft continues to violate anti-trust
laws set in place many years ago. The Proposed Final Judgment goes
against all logic. Previously the US Court, has found Microsoft
guilty of breaking the anti-trust laws. However, under the proposed
final settlement, MS is permitted to retain most of its profits
gained through their illegal activities. The PFJ will not compensate
parties injured by the Microsoft debacle.
The PFJ does not take into account all Microsoft gains made
through its illegal maneuverings. The final settlement basically
acknowledges the acceptance of Microsofts anti-competitive behavior.
What kind of message does this send out to the public? Do you think
the public will be in favor of such a move?
The PFJ encourages big corporations to engage in monopolistic
and predatory conduct, which in turn is detrimental to the
technology industry at large. With all due respect your honor, I am
outraged at such a preposterous proposal that only helps Microsoft
to remain intact and continue with its unethical practices. Thus, I
object to this
[[Page 28253]]
Proposed Final Judgment. It solves nothing in the matter.
Sincerely,
Simplicio, Tualla Jr.
8959 Tam OShanter Dr.
Stockton, CA 95210
MTC-00028340
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 2:28pm
Subject: Microsoft Settlement
2185 W 6410 N
Brigham City, UT 84302
January 25,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
For nearly four years now, the Microsoft antitrust case has been
mired in the federal courts. Finally, after six months of
negotiation, Microsoft and the Department of Justice were able to
reach an agreement, and in November, their settlement was proposed.
That settlement is currently pending approval. Next week, the courts
will reconvene and determine whether the settlement serves the best
public interest. I ask you, Mr. Ashcroft to support the finalization
of the settlement.
Microsoft and the Justice Department have agreed on a wide
variety of terms and conditions, all of which are aimed at
preventing monopolistic behavior and restoring a competitive balance
within the technology market. For example, Microsoft has agreed not
to enter into any contracts wherein a third party is compelled to
distribute or endorse Microsoft software either exclusively or at a
fixed percentage. Microsoft also plans to reformat future versions
of Windows so that competitors will be able to introduce their own
products directly into the Windows operating system. This will
enable computer makers and software developers to use Microsoft as a
springboard to launch their own software.
I do not believe that further action against Microsoft needs to
be taken on the federal level. In fact, it is likely that extended
litigation could be detrimental to an already damaged economy. I ask
you to support the finalization of the settlement.
Sincerely,
Jason Walker
MTC-00028341
From: Rick Deno
To: ``microsoft.atr(a)usdoj.gov.''
Date: 1/28/02 2:28pm
Subject: Microsoft Settlement
Lets'' do what is good for the Country and put this
litigation behind us.
Time to MOVE ON! I know, AOL and other competitors of Microsoft
would love to have Microsoft destroyed, broken up, have all there
software coding made public, and all there money taken away. After
all, there main crime was competing and being better and smarter
than everyone else. Whatever crime thy did commit had nothing to do
with them being successful. The Public chose them over Apple, and
many other Operating Systems years age because the provided a great
produce that worked with a lot of different hardware, which allowed
the price of a PC to be affordable. They and there work has only
benefited the public, the US economy, and most of Microsoft's
competitors. After all, Where would AOL be today if no Microsoft? Do
we want to distort the marketplace and get rid of Microsoft? What
does this tell the next Microsoft? Don't be too successful or the
government will get rid of you. Is this what the free enterprise
system is all about? A monopoly is the result of good business moves
against bad business moves. This is All about Microsoft's
competitors wanting the Government (States and Federal) to do what
they couldn't, which is compete.
Thanks,
Richard Deno
MTC-00028342
From: The Young Family
To: Microsoft ATR
Date: 1/28/02 2:28pm
Subject: Microsoft Settlement
--;--;- Original Message --;--;-
From: Microsoft's Freedom To Innovate Network
To:
Sent: Monday, January 28, 2002 2:03 PM
Subject: Attorney General John Ashcroft Letter
Attached is the letter we have drafted for you based on your
comments. Please review it and make changes to anything that does
not represent what you think. If you received this letter by fax,
you can photocopy it onto your business letterhead; if the letter
was emailed, just print it out on your letterhead. Then sign and fax
it to the Attorney General. We believe that it is essential to let
our Attorney General know how important this issue is to their
constituents. The public comment period for this issue ends on
January 28th. Please send in your letter as soon as is convenient.
When you send out the letter, please do one of the following: *
Fax a signed copy of your letter to us at
1-;800-;641-;2255; * Email us at
[email protected] to confirm that you
took action.
If you have any questions, please give us a call at
1-;800-;965-;4376. Thank you for your help in this
matter.
The Attorney General's fax and email are noted below.
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
In the Subject line of the e-mail, type Microsoft Settlement.
For more information, please visit these websites:
www.microsoft.com/freedomtoinnovate/ www.usdoj.gov/atr/cases/ms-
settle.htm
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The Department of Justice and Microsoft have finally reached a
decision ending the three-year-long antitrust suit against the
company. I want to add my support to this settlement. It has gone on
for far too long. We are trying very hard to come out of a economic
downturn, which I think was precipitated by the lawsuit, and we need
to focus on more important matters than nitpicking over what should
be the final decision in the Microsoft lawsuit.
Microsoft has also been more than accommodating with the demands
from the Justice Department. Microsoft has agreed to a technical
committee to oversee future compliance (consisting of software
engineers, not lawyers); Microsoft has agreed to a uniform price
list; Microsoft has agreed to internal interface disclosure;
Microsoft has agreed to open the company up to third party
innovation. This is more than fair.
I urge you to give your support to this agreement.
Sincerely,
Melvin Young
22 Club Drive
illicothe, OH 45601
MTC-00028343
From: Cheryl Stearn
To: Microsoft ATR
Date: 1/28/02 2:29pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft,
Microsoft's behavior is such that due to their size and
capitalization, they can and will dominate any market they choose.
Recently, they decided to compete directly with their
``Microsoft Partners'', firms who integrate and install
Microsoft networks by essentially offering the same technical
services that firms such as ours do. It is only in the last couple
of weeks that Microsoft has rescinded their push to compete with us,
primarily, I belive, because they would like us to support them in
their fight with the Department of Justice. If this letter is read
by Microsoft, I am sure that our business involving their products
is toast.
The settlement with Microsoft is a joke. If anything it will
tighten Microsoft's hold on the computer market, increase prices and
make the US less competitive in the world market.
Sincerely,
Cheryl Stearn
Partner
P.S. Signed pdf document attached
cheryl--;[email protected]
MTC-00028344
From: Woody McLendon
To: Microsoft ATR
Date: 1/28/02 2:30pm
Subject: Microsoft Settlement
comments
January 28, 2002
To Whom it May Concern,
I am writing to express my very strong concern about the nature
of the settlement proposal in the DOJ case against Microsoft. I
believe that the settlement has major flaws and will do nothing to
limit Microsoft in its future attempts to quash competitors in the
IT industry.
My work is in IT for a non-profit organization. I use computers
daily, including Microsoft products. I do not think Microsoft is
``evil'' but I am greatly
[[Page 28254]]
concerned that the company has shown an ongoing history of using its
monopoly position to overtake and overwhelm competitors. Microsoft's
``shadow'' on the software and IT industry is huge. They
have the ability to out-spend and out-last almost all of their
competitors, and if they don't do that, they try to buy them out.
With their new products such as Windows XP, Xbox game console,
PocketPC handheld computers, they continue the same behavior.
I am not a person that usually writes letters such as this, but
because of my involvement in the IT industry and the importance for
the future, I felt compelled to write. The recent events with Enron
only highlight more fully to me that the US Government has a
definite oversight responsibility in industry. I do not believe that
market forces alone will protect against abuse. Microsoft has been
found to be a monopoly that misuses its position to protect and grow
its markets. That behavior must be stopped. Please reconsider the
decision and make strong, enforceable structural changes in
Microsoft for the good of consumers and the industry. The US
Government dealt with monopolistic issues with IBM and the industry
did not disappear. Neither did IBM. I believe that the entire
computer industry will be better off with a stronger penalty for
Microsoft.
Sincerely yours,
William W. McLendon, Jr.
7905 Agape Lane
Waxhaw, NC 28173
[email protected]
MTC-00028345
From: Robert Lancaster
To: Microsoft ATR
Date: 1/28/02 2:30pm
Subject: microsoft settlement
In regard to the settlement between Microsoft Corporation and
the Department of Justice: On the findings of the District Court and
the Court of Appeal, the settlement is no more than a gift from the
DOJ to Microsoft, giving it the right and power to continue its
monopolistic and predatory practices in spite of the above-
mentioned legal judgements. In fact, its monopoly power would be
effectively increased by the failure to require anything which would
restrict the ability of XP, Hailstorm, and Microsoft's other current
releases to control the user's access to the Internet and the World
Wide Web and prevent any other competing innovative products from
obtaining a foothold. A radical modification of what appears to be a
shameful collusion to allow Microsoft to continue business as usual
in defiance of the legal judgements of the courts is imperative for
the continuance of free development, innovation, and
entrepreneurship in this country (and even to some extent in the
developed world).
Robert Lancaster
145 Fairview Lane, Paso Robles, CA
MTC-00028346
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:31pm
Subject: microsoft settlement
To the Department of Justice:
1/28/02
I strongly believe that Microsoft and the American public
deserve a fair, equitable, and timely settlement of the Microsoft
dispute. Microsoft is the firm that ``got their first''
and through their innovative technologica and economic skills built
the business that exists today. The entire technological industry is
exploding now and growth has it's own momentum. Much of it is due to
Microsoft that got the ball rolling. Now is the time to quit the
haggling and let Microsoft get on with its business, unencumbered by
repeated challenges.
I became a small stockholder in the 1980's because my intuition
told me they were on track. They had the key that opened the door
then, and I believe they still are a wonderful example of American
ingenuity in an open market. Have me become a nation that punishes
the successful? I hope not.
Sincerely,
Rose Musacchio
52 Bader Avenue
Gowanda,NY 14070
MTC-00028347
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 2:31pm
Subject: Supporting microsoft
Dear Mr. Ashcroft:
I am writing to express to you my approval of the recent
settlement in the antitrust dispute between Microsoft and the
Department of Justice. The economy needed this settlement. The
decline in the stock market began with the attacks on Microsoft.
I sincerely hope litigation on any level is terminated. Thank
you for your time and please put me down in favor of the settlement.
Sincerely,
Mona Abele
Marietta, OH
MTC-00028348
From: Tom O'Toole
To: Microsoft ATR
Date: 1/28/02 2:33pm
Subject: To the District Court: Microsoft Antitrust case...
January 28, 2002
Honorable Court Officials,
I am writing today because I have been made aware of the Tunney
Act permitting public comment on the proposed settlement between the
U.S. Department of Justice and Microsoft Corp.
I strongly believe that the proposed settlement does little or
nothing to curb the anticompetitive practices of which Microsoft has
been found guilty. In particular, the settlement doesn't resolve the
issue of software bundling, which is a fundamental part of the case
against Microsoft. Under the terms of the settlement agreement,
Microsoft will essentially be given carte blache to include whatever
software components they desire into the Windows system which is
pre-installed on approximately 90% of computer systems sold, and
which has been shown to have a monopoly market. This permits them to
continue to use their operating system monopoly to create monopolies
in new markets, directly counter to antitrust law.
Microsoft has, in the face of legal action, monopolized the
internet browser market, and is in the process of creating a
monopoly in audio-visual software with Windows Media Player. The new
Windows XP operating system requires users to register with
Microsoft. This is just the first part of a plan to maintain a
comprehensive database of almost all computer users. It will then be
used to monopolize internet commerce using the .NET and Passport
services being deployed by Microsoft. This is all being done with
blithe disregard to the antitrust findings made by the U.S. court.
This attitude (being above the law) was plainly evident in the
demeanor of Bill Gates during the trial. Microsoft has preferred to
spend vast quantities of money to make the case go away, mostly
playing a game of delaying tactics. I feel this settlement gives
them exactly what they want, and is antithetical to any concept of
fairness.
Microsoft will probably try to ``stuff the ballot
box'' with comments in favor of the settlement. It is a well
known Microsoft tactic to use pseudo-'grassroots'' marketing
efforts on internet newsgroups and bulletin boards, and I expect
them to do that in this instance. I urge the court to see through
this underhanded scheme and make a decision based on logic,
precedent and fairness.
I am a computer user who uses several different systems:
Macintosh, Linux and Windows, and I am deeply concerned about the
future and what choices we consumers will have. Thank you very much
for your time. I'm confident you will do the right thing.
Tom O'Toole
5885 El Cajon Blvd. #317
San Diego, CA 92115
[email protected]
MTC-00028349
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:33pm
Subject: Re: MS Settlement
Dear Madam:
The communication below states far more ably than I the reason
the proposed DOJ/MS settlement is so objectionable. It simpley will
not break the monopoly. If there is anti-trust law, if anti-trust
law applies to MS and since MS has violated anti-trust law, then how
will the proposed settlement break MS monopoly. It simpley will not.
James Sturdevant
Subject: Microsoft Settlement
Date: January 28, 2002
To: Renata B. Hesse Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Email: [email protected]
(Note: In the Subject line of the e-mail,
type Microsoft Settlement.) Fax 1-;202-;307-;1454 or
1-;202-;616-;9937
From: Ralph Nader
P.O. Box 19312
Washington, DC 20036
James Love
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036
[[Page 28255]]
Introduction
Having examined the proposed consent final judgment for USA
versus Microsoft, we offer the following comments. We note at the
outset that the decision to push for a rapid negotiation appears to
have placed the Department of Justice at a disadvantage, given
Microsoft's apparently willingness to let this matter drag on for
years, through different USDOJ antitrust chiefs, Presidents and
judges. The proposal is obviously limited in terms of effectiveness
by the desire to obtain a final order that is agreeable to
Microsoft.
We are disappointed of course to see a move away from a
structural remedy, which we believe would require less dependence
upon future enforcement efforts and good faith by Microsoft, and
which would jump start a more competitive market for applications.
Within the limits of a conduct- only remedy, we make the following
observations.
On the positive side, we find the proposed final order addresses
important areas where Microsoft has abused its monopoly power,
particularly in terms of its OEM licensing practices and on the
issue of using interoperability as a weapon against consumers of
non-Microsoft products. There are, however, important areas where
the interoperability remedies should be stronger. For example, there
is a need to have broader disclosure of file formats for popular
office productivity and multimedia applications. Moreover, where
Microsoft appears be given broad discretion to deploy intellectual
property claims to avoid opening up its monopoly operating system
where it will be needed the most, in terms of new interfaces and
technologies. Moreover, the agreement appears to give Microsoft too
many opportunities to undermine the free software movement.
We also find the agreement wanting in several other areas. It is
astonishing that the agreement fails to provide any penalty for
Microsoft's past misdeeds, creating both the sense that Microsoft is
escaping punishment because of its extraordinary political and
economic power, and undermining the value of antitrust penalties as
a deterrent. Second, the agreement does not adequately address the
concerns about Microsoft's failure to abide by the spirit or the
letter of previous agreements, offering a weak oversight regime that
suffers in several specific areas. Indeed, the proposed alternative
dispute resolution for compliance with the agreement embraces many
of the worst features of such systems, operating in secrecy, lacking
independence, and open to undue influence from Microsoft.
OEM Licensing Remedies
We were pleased that the proposed final order provides for non-
discriminatory licensing of Windows to OEMs, and that these remedies
include multiple boot PCs, substitution of non-Microsoft middleware,
changes in the management of visible icons and other issues. These
remedies would have been more effective if they would have been
extended to Microsoft Office, the other key component of Microsoft's
monopoly power in the PC client software market, and if they
permitted the removal of Microsoft products. But nonetheless, they
are pro-competitive, and do represent real benefits to consumers.
Interoperability Remedies
Microsoft regularly punishes consumers who buy non-Microsoft
products, or who fail to upgrade and repurchase newer versions of
Microsoft products, by designing Microsoft Windows or Office
products to be incompatible or non- interoperable with competitor
software, or even older versions of its own software. It is
therefore good that the proposed final order would require Microsoft
to address a wide range of interoperability remedies, including for
example the disclosures of APIs for Windows and Microsoft middleware
products, non-discriminatory access to communications protocols used
for services, and non- discriminatory licensing of certain
intellectual property rights for Microsoft middleware products.
There are, however, many areas where these remedies may be limited
by Microsoft, and as is indicated by the record in this case,
Microsoft can and does take advantage of any loopholes in contracts
to create barriers to competition and enhance and extend its
monopoly power.
Special Concerns for Free Software Movement The provisions in
J.1 and J.2. appear to give Microsoft too much flexibility in
withholding information on security grounds, and to provide
Microsoft with the power to set unrealistic burdens on a rival's
legitimate rights to obtain interoperability data. More generally,
the provisions in D. regarding the sharing of technical information
permit Microsoft to choose secrecy and limited disclosures over more
openness. In particular, these clauses and others in the agreement
do not reflect an appreciation for the importance of new software
development models, including those ``open source'' or
``free'' software development models which are now widely
recognized as providing an important safeguard against Microsoft
monopoly power, and upon which the Internet depends.
The overall acceptance of Microsoft's limits on the sharing of
technical information to the broader public is an important and in
our view core flaw in the proposed agreement. The agreement should
require that this information be as freely available as possible,
with a high burden on Microsoft to justify secrecy. Indeed, there is
ample evidence that Microsoft is focused on strategies to cripple
the free software movement, which it publicly considers an important
competitive threat. This is particularly true for software developed
under the GNU Public License (GPL), which is used in GNU/Linux, the
most important rival to Microsoft in the server market.
Consider, for example, comments earlier this year by Microsoft
executive Jim Allchin:
http://news.cnet.com/news/
0-;1003-;200-;4833927.html ``Microsoft exec
calls open source a threat to innovation,'' Bloomberg News,
February 15, 2001, 11:00 a.m. PT
One of Microsoft's high-level executives says that freely
distributed software code such as Linux could stifle innovation and
that legislators need to understand the threat.
The result will be the demise of both intellectual property
rights and the incentive to spend on research and development,
Microsoft Windows operating-system chief Jim Allchin said this week.
Microsoft has told U.S. lawmakers of its concern while discussing
protection of intellectual property rights .
``Open source is an intellectual-property destroyer,''
Allchin said. ````I can't imagine something that could be
worse than this for the software business and the intellectual-
property business.''
In a June 1, 2001 interview with the Chicago Sun Times,
Microsoft CEO Steve Ballmer: again complained about the GNU/Linux
business model, saying ``Linux is a cancer that attaches itself
in an intellectual property sense to everything it touches. That's
the way that the license works,''1 leading to a round of new
stories, including for example this account in CNET.Com:
http://news.cnet.com/news/
0-;1003-;200-;6291224.html ``Why Microsoft is
wary of open source: Joe Wilcox and Stephen Shankland in CNET.com,
June 18, 2001. There's more to Microsoft's recent attacks on the
open-source movement than mere rhetoric: Linux's popularity could
hinder the software giant in its quest to gain control of a server
market that's crucial to its long-term goals
Recent public statements by Microsoft executives have cast Linux
and the open-source philosophy that underlies it as, at the minimum,
bad for competition, and, at worst, a ``cancer'' to
everything it touches.
Behind the war of words, analysts say, is evidence that
Microsoft is increasingly concerned about Linux and its growing
popularity. The Unix-like operating system ``has clearly
emerged as the spoiler that will prevent Microsoft from achieving a
dominant position'' in the worldwide server operating-system
market, IDC analyst A1 Gillen concludes in a forthcoming report.
* While Linux hasn't displaced Windows, it has made serious
inroads. . . ]. . In attacking Linux and open source, Microsoft
finds itself competing ``not against another company, but
against a grassroots movement,'' said Paul Dain, director of
application development at Emeryville, Calif.- based Wirestone, a
technology services company.
Microsoft has also criticized the General Public License (GPL)
that governs the heart of Linux. Under this license, changes to the
Linux core, or kernel, must also be governed by the GPL. The license
means that if a company changes the kernel, it must publish the
changes and can't keep them proprietary if it plans to distribute
the code externally.
Microsoft's open-source attacks come at a time when the company
has been putting the pricing squeeze on customers. In early May,
Microsoft revamped software licensing, raising upgrades between 33
percent and 107 percent, according to Gartner. A large percentage of
Microsoft business customers could in fact be compelled to upgrade
to Office XP before Oct. 1 or pay a heftier purchase price later on.
The action ``will encourage--;'force'' may be a
more accurate term--;customers to upgrade much sooner than they
had otherwise planned,'' Gillen noted in the IDC report.
``Once the honeymoon period runs out in October 2001, the only
way to ``upgrade'' from a product that is not considered
to be current technology is to buy a brand-new full license.
``''
[[Page 28256]]
This could make open-source Linux's GPL more attractive to some
customers feeling trapped by the price hike, Gillen said.
``Offering this form of ``upgrade protection'' may
motivate some users to seriously consider alternatives to Microsoft
technology.''
What is surprising is that the US Department of Justice allowed
Microsoft to place so many provisions in the agreement that can be
used to undermine the free software movement. Note for example that
under J.1 and J.2 of the proposed final order, Microsoft can
withhold technical information from third parties on the grounds
that Microsoft does not certify the ``authenticity and
viability of its business,'' while at the same time it is
describing the licensing system for Linux as a ``cancer''
that threatens the demise of both the intellectual property rights
system and the future of research and development.
The agreement provides Microsoft with a rich set of strategies
to undermine the development of free software, which depends upon
the free sharing of technical information with the general public,
taking advantage of the collective intelligence of users of
software, who share ideas on improvements in the code. If Microsoft
can tightly control access to technical information under a court
approved plan, or charge fees, and use its monopoly power over the
client space to migrate users to proprietary interfaces, it will
harm the development of key alternatives, and lead to a less
contestable and less competitive platform, with more consumer lock-
in, and more consumer harm, as Microsoft continues to hike up its
prices for its monopoly products.
Problems with the term and the enforcement mechanism Another
core concern with the proposed final order concerns the term of the
agreement and the enforcement mechanisms. We believe a five-to-seven
year term is artificially brief, considering that this case has
already been litigated in one form or another since 1994, and the
fact that Microsoft's dominance in the client OS market is stronger
today than it has ever been, and it has yet to face a significant
competitive threat in the client OS market. An artificial end will
give Microsoft yet another incentive to delay, meeting each new
problem with an endless round of evasions and creative methods of
circumventing the pro-competitive aspects of the agreement. Only if
Microsoft believes it will have to come to terms with its
obligations will it modify its strategy of anticompetitive abuses.
Even within the brief period of the term of the agreement,
Microsoft has too much room to co-opt the enforcement effort.
Microsoft, despite having been found to be a law breaker by the
courts, is given the right to select one member of the three members
of the Technical Committee, who in turn gets a voice in selecting
the third member. The committee is gagged, and sworn to secrecy,
denying the public any information on Microsoft's compliance with
the agreement, and will be paid by Microsoft, working inside
Microsoft's headquarters. The public won't know if this committee
spends its time playing golf with Microsoft executives, or
investigating Microsoft's anticompetitive activities. Its ability to
interview Microsoft employees will be extremely limited by the
provisions that give Microsoft the opportunity to insist on having
its lawyers present. One would be hard pressed to imagine an
enforcement mechanism that would do less to make Microsoft
accountable, which is probably why Microsoft has accepted its terms
of reference.
In its 1984 agreement with the European Commission, IBM was
required to affirmatively resolve compatibility issues raised by its
competitors, and the EC staff had annual meetings with IBM to review
its progress in resolve disputes. The EC reserved the right to
revisit its enforcement action on IBM if it was not satisfied with
IBM's conduct.
The court could require that the Department of Justice itself or
some truly independent parties appoint the members of the TC, and
give the TC real investigative powers, take them off Microsoft's
payroll, and give them staff and the authority to inform the public
of progress in resolving compliance problems, including for example
an annual report that could include information on past complaints,
as well as suggestions for modifications of the order that may be
warranted by Microsoft's conduct. The TC could be given real
enforcement powers, such as the power to levy fines on Microsoft.
The level of fines that would serve as a deterrent for cash rich
Microsoft would be difficult to fathom, but one might make these
fines deter more by directing the money to be paid into trust funds
that would fund the development of free software, an endeavor that
Microsoft has indicated it strongly opposes as a threat to its own
monopoly. This would give Microsoft a much greater incentive to
abide by the agreement.
Failure to address Ill Gotten Gains
Completely missing from the proposed final order is anything
that would make Microsoft pay for its past misdeeds, and this is an
omission that must be remedied. Microsoft is hardly a first time
offender, and has never shown remorse for its conduct, choosing
instead to repeatedly attack the motives and character of officers
of the government and members of the judiciary.
Microsoft has profited richly from the maintenance of its
monopoly. On September 30, 2001, Microsoft reported cash and short-
term investments of $36.2 billion, up from $31.6 billion the
previous quarter--;an accumulation of more than $1.5 billion per
month.
It is astounding that Microsoft would face only a ``sin no
more'' edict from a court, after its long and tortured history
of evasion of antitrust enforcement and its extraordinary embrace of
anticompetitive practices--; practices recognized as illegal by
all members of the DC Circuit court. The court has a wide range of
options that would address the most egregious of Microsoft's past
misdeeds. For example, even if the court decided to forgo the break-
up of the Windows and Office parts of the company, it could require
more targeted divestitures, such as divestitures of its browser
technology and media player technologies, denying Microsoft the
fruits of its illegal conduct, and it could require affirmative
support for rival middleware products that it illegally acted to
sabotage. Instead the proposed order permits Microsoft to
consolidate the benefits from past misdeeds, while preparing for a
weak oversight body tasked with monitoring future misdeeds only.
What kind of a signal does this send to the public and to other
large corporate law breakers? That economic crimes pay!
Please consider these and other criticisms of the settlement
proposal, and avoid if possible yet another weak ending to a
Microsoft antitrust case. Better to send this unchastened monopoly
juggernaut a sterner message. [email protected]
MTC-00028349 0007
MTC-00028350
From: Scott Shriver
To: Microsoft ATR
Date: 1/28/02 2:33pm
Subject: Microsoft Settlement
To Whom It May Concern:
I hope it's not too late to voice my objection to any plan
requiring Microsoft to provide computers to schools as part of a
settlement in the
DOJ's antitrust suit against the corporation.
As the computer lab supervisor in an Ohio middle school, I never
thought I'd see the day when I'd turn down the possibility of free
computer equipment or software. We sure could use whatever
assistance may be provided in our goal of increasing student access
to computers and the Internet. The substantial costs of modern
technology makes it difficult to provide quality technology
instruction in any but the most affluent schools. I know the
objective is to penalize Microsoft in a way that helps our nation
succeed in reforming and invigorating our public school system, but
as well-meaning and obvious as this solution may seem, to give such
a ``gift'' of computers will create several potential
difficulties.
I have used ``Wintel'' computers for many years and
have only recently replaced worn-out machines with comparable Apple
iMac computers. I have used identical software on both machines and
find that the Macintosh is far easier to instruct with and keep
running. Maintenance and troubleshooting time has been slashed.
Networking, even between Macintosh and Windows machines has never
been easier. Our school is now reaching the conclusion of a long
process of migrating to the Mac platform.
Apple has worked hard, I am sure to maintain a niche in the
education market and has rebounded from recent economic problems.
They would have difficulty competing with a company that is
literally giving away their products to schools. The proposed
settlement will cost Microsoft some money, to be sure. But the gains
made by the company as it seeks to make inroads into the education
sector will, I believe, more than make up for the heartburn of
giving away product. In fact, I would liken this settlement solution
to Brer Rabbit's briar patch: they may complain about the cost, but
they would relish the opportunity to get away with a forced increase
in marketshare. It is my
[[Page 28257]]
opinion that to provide any settlement to Microsoft which would
erode Apple's ability to continue to provide great service and
equipment to the education market does a disservice to the
corporation as well as to schools.
Couldn't Microsoft be asked to provide either free technology OR
a comparable amount of money that might be used to purchase
technology of choice for the schools?
Thank you for your time and attention.
Very sincerely,
R. Scott Shriver
R. Scott Shriver
Talawanda Middle School voice: 513.523.1989
4030 Oxford-Reily Road fax: 513.523.5144
Oxford, OH 45056-;8943 email:
[email protected]
MTC-00028351
From: E F
To: Microsoft ATR
Date: 1/28/02 2:33pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I honorably object to the Proposed Final Judgment in the
Microsoft case. There are several flaws with in the final proposal.
One noticeable error is keeping Microsoft intact and not severely
admonishing them for violating anti-trust laws. Another apparent
defect entails the ineptitude to establish an effective mechanism
that implements restrictions or regulations on MS.
As stated in the proposed settlement, Microsoft must comply with
restrictions encompassed in the agreement. A three man compliance
team will oversee and insure that Microsoft comply with the stated
rules and regulations. Taking a closer look however, this three-man
oversight team will be composed of the following: one appointee from
the Justice Department, one appointee from Microsoft, and another
appointee chosen by the two existing members. In turn, Microsoft
will control half of the oversight team.
Yet, in the likelihood of any enforcement proceeding, all
findings by the oversight committee will not be allowed into court.
The sole purpose of the committee is to inform the Justice
Department of all infractions by Microsoft. Subsequently the Justice
Depart will launch its own investigation into the matter and
commence litigation to halt all infractions.
What does this all mean? Translation- the oversight committee
purely is an absentee landlord, who will not scrutinize Microsofts
business dealings. Therefore in all fairness, the Proposed Final
Judgment does not sufficiently provide the appropriate restrictions
or penalties placed on Microsoft. What reassurance do we have that
Microsoft will not continue to abuse it monopoly position and break
the anti-trust laws? I can assure you that the Proposed Final
Judgment will not effectively address the question in this matter.
Therefore I respectfully submit to the court my objection to this
Proposed Final Judgment.
Sincerely,
Eric Fontanilla
1855 Baring Blvd Apt 2105
Sparks, NV 89434
MTC-00028352
From: Steve Bentley
To: Microsoft ATR
Date: 1/28/02 2:34pm
Subject: Microsoft Settlement
Dear Sirs:
I am writing this in regards to the proposed Microsoft
settlement. I am against accepting the proposal as currently
understood.
Perhaps it is only my naivety that I continue to imagine that
one of the roles of government is to protect the little guy from
those more powerful then himself. In that vein, Microsoft is the
bully on the block that us little people need government to step in
and protect us from. The ``slap on the wrist'' provided by
the settlement as currently proposed does not, in my view, do any
more than say to Microsoft that it is acceptable to continue to be
the bully on the block. This proposed settlement would be akin to
telling the bully at school to give back 1 cent of every dollar
extorted from your classmates, hardly a just penalty.
Thank you for considering my arguments against accepting the
proposal before you.
Sincerely,
Steve Bentley
187 W Randall Ave.
Norfolk, VA 23503
(757) 583-;5919
[email protected]
MTC-00028353
From: Mildred/Jerry
To: Microsoft ATR
Date: 1/28/02 2:33pm
Subject: 910 Hester Drive
910 Hester Drive
Harrison, AR 72601
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my support of the settlement reached
between the Justice Department and Microsoft in the antitrust case
in federal court.
I am glad that this case is in its final stages. Microsoft and
its competition have spent far too much time competing in court
rather than in the marketplace. The case has drained resources on
both sides for far too long and should be brought to an end as soon
as possible.
In order to foster greater competition and consumer choice,
Microsoft has agreed to design future versions of Windows to provide
a mechanism to make it easier for computer makers, consumers and
software developers to promote non-Microsoft software within
Windows. It is in the public's best interest to implement this
agreement so that the industry and consumers can take advantage of
the new opportunities for competition and choice.
Sincerely,
Jerry Roberts
cc: Representative Bob Stump
MTC-00028354
From: FELLNER, CLAYTON
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:37pm
Subject: Microsoft Settlement
To whom it may concern,
I have used Microsoft products for many years. I want you to
know that I believe their products are superior in many ways to
their competitors. I enjoy the fact that many of their products are
integrated into their operating system. This is a feature that is
very useful for people like me, with little computer savvy.
Even though I don't consider myself a technical wizard, I am by
no means a hapless victim who cannot choose software that is useful
to me. And I do not think that the government has any right to
decide what can be in my computer. Also, I resent the idea that a
successful business and its products are a threat to anyone,
especially me.
This antitrust case was brought about by Microsoft's whiny
competitors, not disgruntled customers. Failed businesses must not
be allowed to set the rules for the markets in which they failed.
Continued application of the antitrust laws against successful
businessmen can only lead to corruption and economic disaster as
shown in many other countries.
I want to see an America where success is not discouraged or
punished, but embraced and held as a goal for others to reach for. I
want a free America where anyone with enough intelligence and hard
work can be a self-made man like Microsoft Chairman Bill Gates.
And lastly, and most importantly, Microsoft has a fundamental
right to its property. It is the government's job to protect this
right, not to take it away.
Regards,
Clayton Fellner
3813 Harrison Drive
Carrollton, TX 75010
CC:'activism(a)moraldefense.com''
MTC-00028355
From: Andrew Johnson
To: Microsoft ATR
Date: 1/28/02 2:35pm
Subject: Microsoft Settlement
It is my belief the current proposed settlement with Microsoft
is insufficient to punish Microsoft for illegally attempting to
extend its desktop operating systems monopoly and to prevent it from
re-attempting illegal activities in the future. While I believe an
oversight board is necessary to ensure Microsoft's compliance with
the court's ruling, I do not believe an oversight board alone is
enough.
In the past, Microsoft has used its control of proprietary
protocols and application programming interfaces (APIs), and
extensions to open protocols and APIs, to prevent third party
software from interacting properly with Windows. This has forced
users wanting to use these protocols with Windows to use other
Microsoft software, rather than third party software. It is also
clear Microsoft intends to use similar tactics to establish a lock
on Internet traffic and e-commerce through its control of .NET/
HailStorm, MSN, and its other online properties. By causing Windows
to require use of Microsoft online properties such as Passport, and
building hooks to other
[[Page 28258]]
Microsoft online properties into Windows, Microsoft hopes extend its
desktop operating system monopoly to control the Web sites a user
sees and uses on the Internet. Businesses trying to reach consumers
via the Internet will have to do business with Microsoft or lose a
vast majority of their audience.
I propose two additions to the settlement that will hopefully
deny Microsoft the ability to illegally extend their current
monopoly into new markets while allowing the company to retain its
current monopoly and its ability to innovate:
(1) Require Microsoft to publish all of its proprietary
application programming interfaces (APIs) and protocols, and require
its software to comply with published protocols. By forcing
Microsoft to publish all of its proprietary protocols and APIs, the
settlement would ensure non-Windows software could interoperate
freely with Windows desktop software. Microsoft would also be
required to comply with public specifications from third parties,
since it has ``embraced and extended'' public protocols in
the past in such a way as to prevent users from using third party
software with Windows. The oversight board, in addition to ensuring
Microsoft publishes all of its protocols and APIs, would monitor
Microsoft for compliance with its own standards and standards
published by others. It would receive and investigate complaints
from third parties questioning the corporation's compliance, and
take appropriate action if Microsoft was found to be incorrectly
implementing standards to lock users into using only Microsoft
software.
(2) Require Microsoft to divest MSN and its other online
properties, and bar it from owning online services in the future.
This will prevent Microsoft from using its desktop monopoly to gain
a monopoly on Internet traffic in general and Internet-based e-
commerce in specific. Microsoft would be free to develop innovative
new software solutions, but would be unable to use them to coerce
users to use its online services only. Adding these provisions to
the Microsoft anti-trust settlement will both tangibly punish
Microsoft for attempting to illegally extend its monopoly and help
prevent it from doing the same in the future. Microsoft's monopoly
in desktop operating systems would remain intact, as well as
Microsoft's freedom to innovate. These measures would force the
corporation to be a good industry citizen by denying it the
capability to take advantage of its desktop operating system
monopoly to dominate other markets.
Thank you for your time and consideration.
Lawrence Andrew Johnson
[email protected]
MTC-00028356
From: Cheeseater
To: Microsoft ATR
Date: 1/28/02 2:37pm
Subject: Microsoft Settlement
Dear Judge Kotelly,
I have been informed that you have the responsibility of
reviewing the Microsoft antitrust case. I wanted to take a second of
your time to express my opinion on this matter. As many know, the
Microsoft Corporation has been trying to corner the computer market
for nearly a decade. This latest move in attempting to get what is
essentially a governmental exemption from antitrust laws. Please do
all you can to stop this abuse of our justice system and to help us
retain our free market system. Competition is vital to our survival
as a nation. Please don't let Microsoft have their way with us and
our government. Thank you for your time.
Sincerely,
Adam S. Hammill
1247 W. 30th St. #117
Los Angeles, CA 90007
(323) 733-;5381
CC:[email protected]@
inetgw
MTC-00028357
From: Tom Ulrich
To: Microsoft ATR
Date: 1/28/02 2:36pm
Subject: Microsoft Case Concerns
Please see the attached letter with comments and concerns.
Thank you.
Tom Ulrich
Arthur N. Ulrich Company
[email protected]
800-;848-;2090
1ARTHUR N. ULRICH COMPANY FAX 740-;927-;6017
10340 PALMER RD. S.W. PATASKALA, OHIO 43062 740-;927-;8244
TOLL FREE
800-;848-;2090
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft
Why is there hesitation in Washington to finalize the settlement
in the Microsoft case? The cost to the taxpayers of this nation for
the government's attacks on one of our nation's most successful
companies has been enormous. Not only have we funded what appears to
be a vindictive attack via our tax dollars; we have watched billions
or trillions of dollars in value evaporate from our personal
investments, our profit sharing programs, and our retirement and
mutual funds as the market values of Microsoft and other technology
related firms fell precipitously as a direct result of the
government's illogical efforts.
I'm just a middle class American and a small time investor, but
the losses on just the 200 shares of Microsoft stock I owned was
nearly equivalent to one-year s tuition and board for my daughter at
Miami University. That is not an insignificant amount to me, and it
is the Justice Department I have viewed though this process as the
``enemy'' of the consumer, not Microsoft! The posturing of
the Department and that of many state attorney generals lining up
for their ``dibs'' reminds me a bunch of blood sucking
parasites.
My suspicion is that there must be BIG MONEY SPECIAL INTERESTS
that prodded the original investigations and that must continue to
do so, and that disturbs me. In a market economy, the government
generally should not take ``sides'' in commercial and
marketing issues Letting Microsoft get back to business would
significantly help end the recession; spending tax money on more
litigation certainly would not help the national recovery.
I run a small business and have been a Microsoft user since the
mid-80s. I have been using Microsoft not because they were a
monopoly holding a gun to my head, but because they have created
decent and useful products. We don't use them for all our needs; and
in fact use Novell and IBM/Lotus for our networking requirements
because of their features and benefits. I don't like their latest
activation'' policies on XP products, but not once have I felt
``trapped'' or ``manipulated'' into having to
buy, use or upgrade Microsoft products.
Please--;can't we, for the public good, just get this case
over with, and let Microsoft and others in the industry get back to
the business of computers.
Sincerely,
Thomas Ulrich
cc: Senator Mike DeWine
MTC-00028358
From: thunderhawk
To: Microsoft ATR
Date: 1/28/02 2:37pm
Subject: Microsoft settelment
Dennis C. Daggett
363 Center Road
Lopez Island, WA 98261-;8298
Jnauary 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing today to encourage the Department of Justice to
accept the Microsoft antitrust settelment. The issue was brought
about by the former administration that simply did not understand
the technology industry. They ignored one of the things that makes
our country the best in the world, our free enterprise system. Then
to top it all off, they extended their socialistic philosophy to
apply antiquated antitrust laws to a band new industry.
In the free market, Microsoft rose to the top because they had
the best products. Their products are user friendly and Microsoft
has made them very easy to integrate and at lower cost than the
alternitives. It is no wonder that where people had a choice most
choose Microsoft software. Under the terms of the settelment
Microsoft has agreed to allow computer makers the flexibility to
install and promote any software they see fit. Microsoft has also
agreed not to enter into any agreement that would require a computer
maker to use a fixed percentage of Microsoft software. I beleive
that computer makers will continue to predominatly pre install
Microsoftware because it is the best and most computer buyers will
chose a Microsoft windows based computer when making a new perchase.
This is not a monoply problem, Microsft simply is, supplying a
better product and most people know it.
My experiance as supervisor of an electric power generation
plant for over 15 years, offered me the oppertunity to try many
brands of computer software products and computer equipment. What I
found over time
[[Page 28259]]
was that even when cost was not a consideration, products that were
not Microsft based, did not perform satisfactorly. Microsoft
products and windows based computers were simply the best. On top of
that we experianced significant savings over other options. Sure
Microsoft has made a lot of money, but can you imagine the cost to
the people of our nation if Microsoft and all they have provided for
us vanished or had never existed? This is my plea for justice in our
mecanized and technological society. Microsoft has gotten to where
they are by developing better products, not by crushing their
competitors.
This suit and the fact it has gone on for over three years is
simply mind-boggling. It is time to end it. DO NOT PUNISH MICROSOFT
FOR BEING BETTER. Please acept the Microsoft antitrust settelment.
Sincerely,
Dennis C. Daggett
MTC-00028359
From: Jason Irwin
To: Microsoft ATR
Date: 1/28/02 2:35pm
Subject: Microsoft Settlement
I am a concerned citizen who does not think that Microsoft
should have been granted the Proposed Final Judgment by the Justice
Department. Please review these proceedings so that Microsoft will
not have a monopoly. There are laws in place to ensure that there
are not monopolies in business in the US and I think they should be
abided by.
Jason Irwin
510 Irving Ave
San Jose, CA 95128
408-;977-;1512
CC:[email protected]@inetgw
MTC-00028360
From: Helen Bauch
To: Microsoft ATR
Date: 1/28/02 2:36pm
Subject: Microsoft Settlement
Food Smarts
1119 S. Mission Rd.
Fallbrook, CA 92028
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
For over three years the Department of Justice and the Microsoft
Corporation have been pouring millions of dollars down the drain due
to court costs. The antitrust suit that was filed against Microsoft
has not only cost these two entities millions, but look at what
happened to the market after the suit was launched. The suit has
cost more than millions, just look at the recession that it has
partially caused.
Although the suit should have never been initiated to begin
with, I am relieved to see that a settlement has been reached. The
settlement is the best thing that could have happened to the
antitrust case, and it will benefit the economy. Microsoft's
competitors can now produce and ship software that competes with
Microsoft's, and will not have to worry about Microsoft trying to
prevent that. They have agreed not to retaliate against competitors,
which is a move that will boost competition and result in an overall
better product. This will encourage people to hit the stores, which
will push up the economy. Everyone wins.
I support this settlement, and urge you to implement as soon as
possible.
Sincerely,
Helen Bauch
cc: Representative Darrell Issa
Helen Bauch
Food Smarts
1119 S. Mission Rd. PMB317
Fallbrook, CA 92028-;3225
(760) 731-;9911 FAX (760) 731-;9922
MTC-00028361
From: Paul Tait
To: Microsoft ATR
Date: 1/28/02 2:37pm
Subject: Microsoft Settlement
26484 Carrington Boulevard
Perrysburg, OH 43551
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am what you is usually called a ``head hunter''. I
try to find qualified personnel for companies. I therefore have a
good idea of how the business world is doing, or not doing.
Unfortunately, it is not doing very well, and I put much of the
blame for this on the antitrust suit brought against Microsoft. This
case was totally unwarranted. All these firms started out on the
same playing field.
Microsoft is a firm that created a product that people wanted.
Bill Gates standardized computer software, allowing the average
person to understand computers, and computer programs. There was no
need to have five different programs to do a spreadsheet. Bill Gates
simply was the best at giving the consumer what they wanted.
Microsoft has been more than accommodating to the Department of
Justice's demands. Microsoft has agreed to a technical committee to
oversee future adherence; Microsoft has agreed to grant computer
makers broad new license to configure Windows as to promote non-
Microsoft software; Microsoft has agreed to terms that extend far
beyond the products and procedures that were actually at issue in
the original suit.
Let's put this matter to rest. I urge you to give your support
to this agreement. We need to help our country get beyond this
pettiness.
Sincerely,
Paul M.Tait
Consulting and Recruiting
paulm--;[email protected]
(419)874-;1500
Perrysburg, Ohio 43551
MTC-00028362
From: Peter Schultz
To: Microsoft ATR
Date: 1/28/02 3:38pm
Subject: Microsoft Settlement
Hello,
The current status of the Microsoft anti-trust case scares me.
When I first got into computers it was 1995 and I thought
Windows 95 would be the way to go. The price was better than Apple
Macintosh and the whole platform seemed better for programmers.
After a short time I became frustrated by the stability of Windows
so I began searching for a better alternative.
Then fortune struck! It was late 1996 and I was looking through
a Macintosh related magazine when I came across an article about the
BeBox by Be, Incorporated. This brand new and highly innovative
computer had dual processors and ran the Be operating system, all of
which was engineered from the ground up to be modern, or as they
called it, a system for the next millennium. I hopped on the
Internet right away and looked into buying one of these BeBoxes and
found to my surprise that I could get one for a very good price.
This system made me happy because I never had any mysterious system
problems that required me to waste my time reinstalling as I had
done many times with Windows.
Soon thereafter BeOS was up and running on Intel compatible
computers and being a total computer geek I had always wanted a
laptop computer. So in 1998 I purchased a Dell Inspiron 3000, which
I had figured would be able to run BeOS. I was right, Be had the
resources to make this possible and I was able to stay current with
their latest developments.
There is an alternate side to this Dell computer. It was
purchased only weeks before Windows 98 was released yet I did not
get any credit for the purchase and was given an ugly hacked version
of Windows 95 that made it look like Windows 98. Here's another
reason I'm very upset by Microsoft. To my absolute horror this
unstable factory installation only lasted about a week before I had
to do a clean install of Windows! You'll note that this is the one
of the disputed factors in the antitrust case, the tying in of
Internet Explorer to Windows 95 is not only a questionable business
practice, but it made my brand new very expensive computer a pile of
junk.
I called Dell about this and since it was a software problem
they brushed it off. I then called Microsoft and before I even
talked to an actual person I was informed that I would have to pay
them money to even talk to anyone! I instantly hung up the phone and
felt angry, sad, and helpless to this ugly situation. I thought to
myself, ``why after having spent over $3000 am I being treated
this way?'' It was at this time that I decided I did not agree
with the Microsoft End User License Agreement and called Dell back
to see about getting compensation for this. Dell told me it would
not be possible.
I eventually brushed it off because I was primarily a BeOS user
and had great hope that Be would be able to continue developing
their amazing OS. Unfortunately, Microsoft's stranglehold made it
nearly impossible for BeOS to be installed on factory systems and
now the result is that for all anyone knows, BeOS will never be
updated again! Palm, Inc. has recently purchased the technology and
there may be a chance that the public will see another version, but
there's just no way to tell.
[[Page 28260]]
Microsoft has steadily moved from shrewd business to leveraging
everyone into doing what they want. As a computer science student
and a part-time consultant I deal with Microsoft in some way
everyday. This is not by choice! If I were to attempt to discontinue
the use and/or support of Microsoft products I would be putting
myself into obscurity. It might be a case where I won't be able to
view important documents that are only readable by the latest
version of Microsoft Office, or it might be that a web page is only
designed to be viewed in Microsoft Internet Explorer. Ask any
Macintosh user what would happen if these applications were not
available for their platform.
Microsoft is a massive corporation that has gone beyond mere
profit and has long been in the business of screwing people over.
Even as they have been on trial for being a monopoly they have been
making their position stronger. They recently purchased Great Plains
Software here in Fargo, North Dakota, and I'm sure it won't take
long before they're dominating the small business software market.
As a user who depends on computers for my livelihood I feel
depressed about this, and I know that I'm not alone. This American
company is making people across the entire planet feel as I do,
please do something soon so that at the very least we can enjoy a
good variety of platforms. My hope is that your decision will be
such that Palm sees opportunity with BeOS and that other small truly
innovative companies also see openings thereby giving users like me
a choice. As for today the future of computing is gloomy, grayed
over by the drab blanket that is Microsoft.
Without your intervention I see absolutely no hope for small
truly innovative companies like Be.
Do not simply settle for handing power off to Apple; give it all
back to the people. I want Microsoft to hurt as badly as they've
hurt me.
Sincerely,
Peter Schultz
1105 13th Ave. N #2
Fargo, ND 58102
MTC-00028363
From: dave parsh
To: Microsoft ATR
Date: 1/28/02 2:37pm
Subject: Microsoft Settlement
I would like to give an opinion no the Microsoft case.
Microsoft is a powerful, innovative company. The sould be
congratulated on their success, not punished. In the United States,
if we allow people to be creative and innovative then our society
will be a better place. By restricting and punishing people for
being excellent at what they do, people will be less inclined to
take risks and improve our lives. Microsoft's success is at the
heart of a capitalistic society. They must continue to innovate and
produce new products or else they will fail as a business.
They should not be punished for being successful.
Dave Parsh
MTC-00028364
From: Jamie Folsom
To: Microsoft ATR
Date: 1/28/02 2:38pm
Subject: Microsoft Settlement
I am a web developer for a public tv station, making web sites
for kids, and in my professional work have seen much to be concerned
about regarding Microsoft's business practices.
Microsoft, in its business and technical decisions, has shown
deep-rooted disregard for the openness of the internet, an engine of
economic possibility, and has coopted standards ``for the
benefit of competition/consumers/'',
when it suits their purposes.
The Microsoft money machine, a bulldozer in the rain forest of
software diversity, must be kept in check, and companies,
technologies and individuals inclined to contribute to this great
new medium must be clearly told that their freedom, in the form of
open, commonly owned standards, will be defended.
Thanks
Jamie Folsom
[email protected]
MTC-00028365
From: Mark Moran
To: Microsoft ATR
Date: 1/28/02 2:38pm
Subject: Microsoft Settlement
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I understand that Microsoft and the Department of Justice have
decided to reach a settlement in the antitrust lawsuit that has been
dragging on for the last three years. I never agreed with this case
from the beginning, and I hope to see this settlement finalized in
the near future.
Settling now will only have positive effects on the industry as
well as the economy. Microsoft will share information with its
competitors regarding Windows, and redesign the operating system to
allow other companies'' software to be placed within the
system. Competition will increase and the consumers will see many
more choices in the marketplace.
Thank you for stopping this litigation. We need to put this case
to rest so that Microsoft can get back to creating great products,
and the government can focus its energies on more important issues.
Sincerely,
Mark Moran
309 W. 109th St. #5F
New York, NY 10025
MTC-00028366
From: J F
To: Microsoft ATR
Date: 1/28/02 2:39pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am filing my personal objection to the proposed final judgment
on the Microsoft case. Supposedly, the Court has found Microsoft
guilty of violating all rules of proper business ethics and
practices. However with the PFJ, the Department of Justice throws
out, if not abandons all previous court findings that indicts
Microsoft. In fact, the PFJ permits Microsoft to continue with its
monopolistic and predatory practices, which in my opinion is a
detriment not only to the software sector but also to the technology
industry as a whole. Without a doubt, I strongly believe you will
receive thousands of similar appeals encompassing the many flaws
that are apparent in the proposed final settlement. My main focus
entails one fundamental flaw clearly noticeable in the proposed
settlement: The PFJ does not effectively break up Microsoft, but in
fact allows Microsoft to leverage its current market position, or
should I say, Monopoly to expand its business into several other
technology markets. Under the general rule, most monopolies in the
past, such as AT&T and Standard Oil, are either broken up or
carefully regulated. However, Microsoft is given a pardon or a
waiver to this general rule of thumb altogether. The implementation
of reprimands by the Justice Department is not a cure-all to the MS
calamity. As history has proven over and over again, Microsoft will
undoubtedly abuse its monopoly position at the expense of others.
Unless something extraordinary is done such as breaking up
Microsofts business into several parts or meting out severe
punishment, Microsoft will persistently continue to implement
illegal business practices. I submit to the Court my rejection to
the Proposed Final Judgment.
All the Best,
Jennifer Fontanilla
Eric Fontanilla
1855 Baring Blvd Apt 2105
Sparks, NV 89434
MTC-00028367
From: Dave Walton
To: Microsoft ATR
Date: 1/28/02 2:50pm
Subject: Microsoft Settlement
I urge you to reject the negotiated settlement with Microsoft.
The only way I see that you can prevent monopolistic and anti-
competitive practices that have continued to this day is to separate
the Applications and Operating Systems divisions of Microsoft into
different companies. It is essential that their Application programs
be ported to work with operating systems other than Windows.
I am seriously concerned that representatives of our government
could have negotiated a settlement with Microsoft that does nothing
to punish them for the acts they have been found guilty of, and does
nothing to prevent such acts in the future. I urge you to open all
proceedings to public scrutiny so we can see just what transpired
that allowed this to happen. I question the impartiality and
motivations of those responsible.
Thank You
Dave Walton
2986 Warrington Road
Shaker Heights OH 44120
216-;751-;6646
[email protected]
MTC-00028368
From: Gregg Williams
[[Page 28261]]
To: Microsoft ATR
Date: 1/28/02 2:41pm
Subject: Microsoft Settlement
Dear Department of Justice:
I am writing regarding the Microsoft settlement as someone with
more-than-average credentials to have an opinion. From 1979 to 1988,
I was Senior Editor of BYTE magazine, the personal computer
industry's first major magazine. From 1988 to 1998, I worked for
Apple Computer, where I wrote to third-party developers about the
advantages of the Mac OS platform over the Microsoft Windows
platform. In both jobs, it was my responsibility to be aware of
Microsoft's acts and how they affected the computer industry.
With that introduction, let me add my voice to that of the many
people and companies who believe that the Department of Justice's
proposed settlement is not in the public interest. The final
judgment after a trial should punish the guilty, discourage similar
offenses in the future, and if possible, repair the damage done. The
proposed settlement actually causes harm, in several ways: It does
not provide the remedy that it was meant to; it implicitly
encourages the reoccurrence of similar wrongdoing; and it does not
address significant larger issues that need attention.
The final judgment for this case is important in more than just
its immediate context; it also has important consequences in our
increasingly digital world. Our country (and the world) has most of
its eggs in one basket--;Microsoft's--;and this is
dangerous. Just as any natural ecology is endangered when its
diversity is lessened and one species dominates, so is our digital
ecology endangered by Microsoft's overwhelming market share and its
stifling of competition. As just one example, observe the
devastating effects of the denial-of-service attacks against
amazon.com and other online businesses a few years ago. They would
not have been as effective if a significant fraction of the
country's Internet users had not been using Microsoft's email
programs. Also, all hacker attacks are tied to the vulnerability of
a specific product; if there were, say, three email programs and
three browser programs in common usage (instead of Microsoft's
Outlook and Internet Explorer), such attacks would injure fewer
users, spread more slowly, and consume less Internet bandwidth than
is the case today. For the above reasons, this judgment is doubly
important, and the currently proposed judgment is doubly dangerous.
I believe that a good final judgment must both prevent further
wrongdoing and counteract Microsoft's dominance in current and
future markets. Any attempt to regulate Microsoft's conduct MUST be
given the resources to succeed, and its workings MUST be visible to
the public. Without these two provisions, Microsoft will evade
lawful punishment again, just as it did in the mid-1990s.
Finally, Microsoft should be made aware that it has no say in
selecting or refusing its punishment. Nor should the court be
pressured into compromise for fear that punishing Microsoft will
damage this nation's economy. In fact, it is Microsoft's actions
that are causing long-term damage, and any judgment that leads to
competition, innovation, and meaningful customer choice will help
repair that damage our economy.
I support the efforts of the states that are pressing for a more
comprehensive punishment for Microsoft's illegal acts. As an
informed and active citizen, I expect nothing less.
I submit my opinion to the Department of Justice with great
respect, out of a deep concern for this nation's long-term
technological and economic health.
Gregg Williams, [email protected]
MTC-00028369
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:43pm
Subject: Microsoft
To The Department of Justice
I hope Judge Colleen Koller-Kotelly does not forget about all of
us who use Microsoft products and are very satisfied with their
performance. They produce a very good product that is easy to use.
You get what you pay for! Unfortunately, I have a MAC Power Book and
MSN does not have a compatible internet program. At present I have
AOL ( overpriced) but plan to buy a new laptop that is MSN
compatible and cancel my AOL. Has anyone ever told us how many
cancel AOL?.....or only brag about how many sign up. Fortunately,
the world is full of choices and I am no longer interested in
contributing to dissenting states with my AOL monthly fee. Netscape
did themselves in and AOL was stupid to buy them. Everyone should
read Erick Schonfeld's January 25, 2002 ``A RIDDLE: WHY DOES
NETSCAPE STILL EXIST?''. He tells it like it is!
AOL stock is down 50% since I sold mine and a lawsuit against
Microsoft is not going to bring it back up.
I am getting fed up with my tax dollars paying for goverment
funded lawsuits and in the States vs Microsoft it needs to be
settled in a reasonable manner. If Microsoft had beeen contributing
to Clinton as the illegal Asian money he probably would have told
the DOJ to back off and let Netscape finance their own lawsuit. As
it should have been. The nine disssenting states are beginning to
sound revengeful and stupid.
I guess they see success and money and their fangs go out. They
seem to be blind to the fact that a reasonable settlement could also
affect the business in their state in a positive manner. Microsoft
is not asking them to divulge their secrets.
I shall be watching the outcome and look forward to my new
laptop and cancelling AOL.
Karen Dahlgard Age 65
MTC-00028370
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:42pm
Subject: microsoft settlement
Dear Mr Ashcroft,
Please do not increase the microsoft penalties over what was
agreed to.
The settlement although severe seemed fair. Futher penalties
would in my opinion be overkill and would result in slowing an
already weak economy.
Thank you for considering this important matter.
MTC-00028371
From: Samira Lama
To: Microsoft ATR
Date: 1/28/02 2:42pm
Subject: Microsoft Settlement
5445 Elmview Drive
Bay City, MI 48706
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I want to express my support for the Microsoft settlement
negotiated last November. I was against the lawsuit against
Microsoft and felt a break-up of the company was totally
unjustified; consequently, I think the compromise is a necessary
move to allow us to move on.
The terms accepted in the agreement are very generous to the
competition. Computer manufacturers will have greater flexibility in
trading Microsoft software for non-Microsoft products on the Windows
operating system without obligation, while software developers will
gain access to Windows internal code and even be able to license
Microsoft intellectual property.
The terms highlight the fairness of this proposal, which will be
regularly monitored by an objective group of technical experts in
order to confirm its implementation. I ask that you allow these
measures to go through without further legal action. Thank you very
much.
Sincerely,
Sam Lama
MTC-00028372
From: Mister Thorne
To: Microsoft ATR Date; 1/28/02 2:42pm
Subject: Microsoft Settlement
I am offering my comments on the Proposed Final Judgment (PFJ)
that was submitted by the United States in Civil Action No.
98-;1232. I am also sending you these comments via USPS.
I am encouraging the Court to not accept this settlement for
these reasons:
1. The settlement is ineffective;
2. The settlement does not serve the public interest;
I encourage the Court to determine an effective remedy, one that
(1) ends the unlawful conduct; (2) avoids a recurrence of the
violation and others like it; and (3) undoes the anticompetitive
consequences of that unlawful conduct.
Effect of Proposed Remedies
The PFJ is ineffective. It does not restore ``competitive
conditions in the personal computer operating system market''
as the U.S. claims in its Competitive Impact Statement (CIS). In
fact, the PFJ does nothing toward that end.
As the U.S. noted in its complaint, ``PC manufacturers
(often referred to as Original Equipment Manufacturers, or
``OEMs'') have no commercially reasonable alternative to
Microsoft operating systems for the PCs that they distribute.''
The PFJ does nothing to alter that. Instead, it offers a series of
[[Page 28262]]
restrictions and prohibitions aimed at opening the market for
``middleware.'' It offers nothing to restore a competitive
market for operating systems for personal computers.
The PFJ does not ``obtain prompt, effective and certain
relief for consumers.'' On the contrary; it's effect will be to
leave consumers with no viable choice for personal computer
operating systems, other than different versions of Windows, or for
browsers, other than different versions of Internet Explorer.
Consumers will not reap the benefits of competition among operating
systems or browsers, as they have the benefits of competition among
OEMs.
In the CIS, the U.S. claims that the PFJ ensures that
``consumers will be able to choose to use'' non-Microsoft
products like Internet browsers. That assumes that such competing
products will come to market, but this is unlikely given that
Internet Explorer is given away at no cost. As Jon DeVaan, a Senior
Vice President of Microsoft, would testify (see Microsoft's offer of
proof in opposition to the entry of the government's proposed final
judgment): ``No sensible company devotes large resources to
projects from which it sees no potential return on its
investment.'' The PFJ does nothing to open the market for
Internet browsers or other applications, and so it does nothing to
give consumers more choice.
In the CIS, the U.S. says the PFJ ``forbids Microsoft from
stopping OEMs from offering dual-boot systems.'' Yet the Court
has determined that there exists an ``applications
barrier'' to entry to the market for personal computer
operating systems. The PFJ does nothing to remove that barrier.
The District Court concluded that Microsoft violated the Sherman
Act, and the Court of Appeals upheld the ruling, determining that
Microsoft's ``commingling of browser and operating system code
constitute exclusionary conduct, in violation of s 2,'' of the
Sherman Act. Yet the PFJ does not address the issue of commingling
and leaves Microsoft free to integrate whatever it wishes with
Windows, to continue to use its operating system monopoly to extend
its reach into new, emerging markets.
The PFJ requires Microsoft to disclose to ``ISVs, IHVs,
IAPs, ICPs, and OEMs'' the APIs used by Microsoft Middleware to
interoperate with Windows. The provision requires the disclosure to
occur in a ``Timely Manner.'' But ``Timely''
means only after Microsoft has sent any new version of Windows to at
least 150,000 beta testers. The result is that if Microsoft
distributes a new version of Windows to 149,999 beta testers, they
don't need to disclose the APIs to anyone.
The PFJ contains a provision that if Microsoft engages in
``willful and systemic violations of the agreement,'' then
the ``requirements and prohibitions'' in the PFJ may be
extended for two years. What the U.S. is basically saying is this:
``if the agreement proves ineffective, our plan is to extend
it!''
Finally, things have changed since the U.S. filed its complaint.
Microsoft's dominance in the market has continued to grow. It's
share of the market for operating systems, browsers, and common
applications like word processors, spreadsheets, and e-mail software
has increased. And Microsoft is moving on, leveraging its monopoly
for operating systems to extend its control of the market with its
.NET initiative.
The .NET initiative is Microsoft's program to offer a new
development platform, one that sits above the operating system. As
Steve Ballmer, CEO of Microsoft, notes, this initiative is
``the pillar on which we are building the next version of
Microsoft.'' When the initiative was announced, Ballmer
commented: ``Starting this year, everything we do will revolve
around Microsoft .NET.'' Having conquered the market for
personal computer operating systems, Microsoft is poised to conquer
new, emerging markets.
In the CIS, the U.S. says appropriate injunctive relief in an
antitrust case should: (1) end the unlawful conduct; (2) avoid a
recurrence of the violation and others like it; and (3) undo the
anticompetitive consequences of the unlawful conduct. The PFJ
achieves none of these objectives. Microsoft's unlawful conduct in
the browser market is history, the PFJ does nothing to reopen that
market, and it leaves Microsoft free to continue to violate the
Sherman Act. And Microsoft's leaders have suggested that that is
precisely what they plan to do.
As the U.S. stated in its complaint, ``Microsoft has made
clear that, unless restrained, it will continue to misuse its
operating system monopoly to artificially exclude browser
competition and deprive customers of a free choice between
browsers,'' and ``Microsoft's conduct with respect to
browsers is a prominent and immediate example of the pattern of
anticompetitive practices undertaken by Microsoft with the purpose
and effect of maintaining its PC operating system monopoly and
extending that monopoly to other related markets.''
Microsoft's leaders continue to give us reason for concern. At
the start of the trial, Steve Ballmer stated in an e-mail message
sent to Microsoft employees: ``Microsoft's business practices
[are] entirely consistent with the way other companies throughout
our industry compete.'' After the Court of Appeals upheld the
District Court's finding that Microsoft violated the Sherman Act,
Steve Ballmer made these statements:
``I do not think we broke the law in any way, shape, or
form. I feel deeply that we behaved in every instance with super
integrity.''
``We were born a competitor, and we'll continue to compete
as we have in the past: vigorously and responsibly.''
These statements from the company's CEO do not portend a change
in the way Microsoft conducts business.
Comments made by the leaders of Microsoft after the court
determined it broke the law illustrate what many informed
commentators have noted: ``Microsoft just doesn't get
it.'' While we can expect Microsoft to follow the restrictions
in the PFJ, we cannot expect it to live up to the spirit of it. And
why not? Thomas Friedman, a New York Times columnist put it well in
a column he wrote after the District Court ordered a breakup of the
company: ``Microsoft isn't a threat because it's big. GE is
big, Intel is big, Cisco is big. Microsoft is a threat because it is
big and deaf to some of the bedrock values of the American
system.''
The PFJ is ineffective. It does not ``eliminate Microsoft's
illegal practices, prevent recurrence of the same or similar
practices, and restore the competitive threat that (other software)
products posed prior to Microsoft's unlawful undertakings'' as
the U.S. claims.
Rather, it cements Microsoft's position as the sole supplier of
personal computer operating systems for the Plaintiffs, It allows
Microsoft to continue to dump products on the market in order to
maintain market dominance. It allows Microsoft to continue to tie
its applications to its operating systems, effectively closing the
market to would-be competitors. And it allows Microsoft to build
upon its monopoly position to establish market reliance on its next-
generation development platform (.NET).
The Public Interest
It is in the public interest for the U.S. to enforce antitrust
law; it is not in the public interest for the Court to accept the
PFJ. That's because the PFJ does not address the central issue in
this matter: Microsoft's monopoly position, and its abuse thereof,
in the market for operating systems for personal computers.
The public has benefited from competition among PC
manufacturers. We've benefited from lower prices, increased
functionality, and those innovations that naturally occur when firms
compete fairly in a dynamic and open market. If the PFJ is entered
as is, then Microsoft is left with its monopoly. And that means no
increased competition for operating systems despite the U.S. claim
in the CIS that the PFJ would restore ``competitive conditions
in the personal computer operating system market.''
The U.S. offers no justification for its claim of increased
competition for operating systems: none at all. While the PFJ might
enhance competition for middleware, it leaves Microsoft in the same
monopoly position it was in at the beginning of this action. In
fact, since 1990, when the FTC first investigated Microsoft for
antitrust, the company's position has only gotten stronger.
The lack of any effective corrective action in the PFJ lets
others know that they can get away with similar tactics, that it
will take so long for antitrust complaints to be resolved that they
don't even matter. The courts are seen as so slow to act
that--;in a rapidly changing and advancing market--;they can
be ignored, and that is definitely not in the public interest.
The public interest would be better served by some remedy that
ensures that Microsoft won't be back in court, yet again, for
antitrust violations. But that is precisely what we can expect given
that Microsoft's leaders have stated that they did nothing wrong,
that they operated within the law and always have, that they plan on
conducting their business as they have in the past, even after the
Court of Appeals upheld the District Court's determination that
Microsoft employed ``anticompetitive means to maintain a
monopoly in the operating system market.''
The public interest is served by ``the Government defining
the contours of antitrust laws so that law-abiding firms will have a
clear sense of what is permissible and
[[Page 28263]]
what is not.'' Entry of the PFJ works against that. It says, in
effect, that if a company has the resources, then it can violate
antitrust law.
It can raise all sorts of ridiculous arguments to support its
violations. It can use obfuscation to avoid answering questions. It
can present the court with bogus exhibits that are not what they are
claimed to be. It can protest that an antitrust action is simply a
means for the U.S. to help the company's competitors, or that the
U.S. doesn't know enough about computers or the computer industry to
enforce antitrust laws there. The company can buy so much time that
the courts and, hence, the laws become ineffective: by the time the
courts act, the company has achieved its objectives, and after the
courts act, the company keeps its ill-gotten gains. How is that in
the public interest?
An Effective Remedy
I encourage the Court to accept nothing less than an effective
remedy, one that serves the public interest, that restores
competition in the market for personal computer operating systems
and applications, and which discourages Microsoft from continuing to
function with limited regard for antitrust law.
But this is problematic. The new administration seems to have
little interest in pursuing this matter, even though it is charged
with enforcing the law and the court has determined that Microsoft
broke the law.
One effective way to open the market could be done by executive
order, rather than court order. If the Plaintiffs can require that
all their personal computers run Microsoft Windows, then they can
just as well require that all their computers run some other
operating system, such as UNIX. And there are good arguments in
favor of such a change.
Just about every personal computer on just about every desk in
just about every government office is equipped with Microsoft Office
and Internet Explorer. That application suite includes the most
common applications, comprising something like 95% of the
applications that 95% of computer users use 95% of the time. That
same application suite is available (from Microsoft) for the
Macintosh operating system, which is a UNIX-based operating system.
So, if the Plaintiffs adopted a program to use UNIX instead of
Windows with their personal computers, the ``applications
barrier'' would be fairly low. (The ``applications
barrier'' is a fallacy; Windows isn't more popular than
Macintosh because there are so many more applications avaiable for
Windows; the reason there are so many more applications for Windows
is because Windows is more popular, the Plaintiffs and Corporate
America long ago having decided that desktop computers must be IBM
compatible.)
Of course, the Plaintiffs also make use of specialized
applications. Public agencies of all sorts use specialized
applications to manage more and more of their operations; a wide
variety of government workers use specialized applications on a
regular basis. So, there is a real barrier to adopting an operating
system other than Windows: specialized applications that were
written for Windows need to be rewritten for UNIX. But there is also
an opportunity to eliminate that barrier now.
With its .NET initiative, Microsoft claims it is reinventing its
business. Steve Ballmer claims that as .NET versions of its products
are released, they will make non-.NET versions of products obsolete
in four to six years. And that means that the Plaintiffs, unless
they intend to use obsolete products in the future, have these two
choices: either they can remain dependent on Microsoft and adopt
.NET, or they can start to become independent now; they can switch
from Windows to UNIX.
While the DOJ claims (without support) that the PFJ is good for
the economy, what would be a boost for the economy is for the
Plaintiffs to adopt UNIX. The plaintiffs are a sizeable market for
software developers. If the Plaintiffs adopt UNIX, ISVs will develop
software for UNIX. And, in a marketplace not controlled by
Microsoft, one in which market forces are allowed to operate freely,
we'll have open competition, and the benefits of it.
And we won't have to worry about a single firm having sole
control of an important component of our modern economy. In two
decades, the personal computer has gone from being as popular as ham
radio, to being an essential tool, and fundamental to our way of
life. We could not enjoy our modern way of life were it not for the
development of the personal computer and the software that makes it
so useful in so many ways.
The public isn't served when there is only one source of oil, or
one bank. or one TV station. And the public is not served by having
just one supplier of the most basic software for personal computers.
The public is served by free and open competition, and the
Plaintiffs have a responsibility to enforce the laws that apply.
I don't think the settlement contained in PFJ is good for the
public or the economy. I would like to see the Court require a
settlement that accomplishes what the U.S. claims this settlement
accomplishes.
Sincerely,
Mister Thorne
MTC-00028373
From: Cynthia Roy
To: Microsoft ATR
Date: 1/28/02 2:45pm
Subject: microsoft settlement
Your Honor:
As you know, there was a time in America when Roosevelt had to
launch an aggressive campaign against corruption in the corporate
world. History has already shown us what happens when industries,
because they are monopolies, have too much power. The question is
not supposed to be considered on a situation basis, the antitrust
laws were made so that, among other reasons, the general public
would not and COULD NOT be taken advantage of. Therefore, with all
due respect,I don't think that Microsoft should be allowed to abuse
antitrust laws.
Thank you sincerely for your time,
Cynthia Roy
e-mail: sequin101@
MTC-00028374
From: M Y
To: Microsoft ATR
Date: 1/28/02 2:45pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I wanted to let you know that I am against the Proposed Final
Judgment. For the most part, the goals that were to be accomplished
such ridding out MSs illegal monopoly will be overturned with this
proposed settlement. I oppose such a deal. MS must be dealt with. I
submit to you my objection to the Proposed Final Judgment.
Sincerely,
Marilyn Yu,
310 S. Orange Ave Apt. 19
Lodi, CA 95240
MTC-00028375
From: John Transue
To: Microsoft ATR
Date: 1/28/02 2:46pm
Subject: Microsoft Settlement
Microsoft is clearly a monopolist and stifles competition. A
deeper punishment is vital to the industry and also to retain the
authority of the government in anti-trust matters.
Microsoft is predatory and parasitic. They are incredibly
arrogant about this case. The DOJ has to demonstrate that the US is
a country of laws not of men. They have been found to be
monopolists. Do the right thing and punish them. Don't let their
wealth, power, and treachery get them off the hook.
They frequently make changes to their OS and applications for no
reason other than to diminish competition.
Please do the right thing and punish Microsoft.
Sincerely,
John Transue
Assistant Professor
Department of Political Science
Duke University
[email protected]
(919) 660-;4336
MTC-00028376
From: John R. Morris
To: Microsoft ATR
Date: 1/28/02 2:45pm
Subject: The Microsoft Anti-trust Case
Dear To whom it may concern,
I am a user of the OS/2 (operating system from IBM). I have
found this to be a technologically superior product over any of the
operating systems offered by Microsoft, especially their latest
version, Windows XP. I Believe that their further bundling of an
instant messager (The MSN Instant Messanger), the 3 year limitation
on usage, Cd burning software and other included multimedia software
makes it clear and obvious that Microsoft is trying to extend and/or
maintain their monopoly. Unfortunately, OS/2 has been in decline for
a number of years from what I believe to be unfair monopolistic
marketing tactics of Microsoft. As a result, vendors of OS/2 related
products have also diminished over the years. Contrary to arguments
by Microsoft that their products encourage competition, I believe
the opposite is true; that Microsoft's marketing practices actually
discourages competition and stunts technological growth.
Consequently, I do not believe that the Department of Justice's
proposed settlement
[[Page 28264]]
with Microsoft, in its current form, is anywhere near adequate and
that stricter measures need to be imposed on the company to prohibit
such tactics from being used in the future.
In addition, I am appalled that after all the effort, my tax
dollars, and other resources that the Department of Justice has used
and this is the best settlement that they can come up with.
Futhermore, I am greatly troubled that the other Attorney Generals
have fought so hard over the past years and have spent enormous
amounts of their money, and then settle for this unrealistic
package.
Sincerely,
John R. Morris
[email protected]
Corvallis, OR
United States of America
MTC-00028377
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:58pm
Subject: Comment on Microsoft Settlement
Hello,
Attached (better) and below are my comments on the microsoft
settlement.
David McMahon
DAVID B. McMAHON / ATTORNEY AT LAW
1624 Kenwood Road, Charleston, West Virginia 25314
Phone 344-;3620 / Day 415-;4288 / Fax 344-;3145
e-mail [email protected]
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
[email protected]
Re: Microsoft Settlement.
Dear Ms Hesse,
I am a lawyer for low income people. I am also a ?Consumer
Fellow? to the Business Law Section of the American Bar Association.
I was an Official Observer on behalf of consumers on the drafting
committee of the National Conference of Commissioners on Uniform
State Laws that revised Article 9 of the Uniform Commercial Code. I
am on the Board of an organization opposing the Uniform Computer
Information Transaction Act in the states.
Thank you for the opportunity to comment on the Microsoft
settlement. I share generally the opinion of Hon. Darrell McGraw,
the Attorney General of my state, the State of West Virginia.
It is my personal position that the settlement between Microsoft
and the U.S. Department of Justice is not in the public interest.
The settlement does not offer remedies that sufficiently address
Microsoft's illegal, anticompetitive behavior as a monopoly that
puts grabbing market share above the quality of the software it
produces. The settlement fails to include critical provisions that
will counter Microsoft's monopolistic tactics, and does not contain
appropriate and enforceable penalties for non-compliance. Changes to
the settlement must be made to address these issues, in order to
bring the benefits of competition, choice and innovation to
consumers.
Sincerely,
/s/
[Intended as a signature.]
David B. McMahon
DBM/dbm
David McMahon
E-Mail: [email protected]
Phone/Voice Mail: 304-;415-;4288
Fax: 810-;958-;6143
Work Address: 922 Quarrier Street, Charleston, WV 25301
Home Address: 1624 Kenwood Rd., Charleston, WV 25314
MTC-00028378
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:47pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20560-;0001
26 January 2002
Dear Mr. Ashcroft:
As a former Federal Government employee who was forced to retire
on 2 October 1998 due to a major reduction in force (RIF) in the
Defense Department (I was over 55 years of age and I had more than 5
years of service), I have been following the Microsoft antitrust
case. Personally, I feel that Microsoft should be left alone.
Microsoft has been very good for the economy and the technological
advancement of our country. Because of its innovative software, they
have brought about increased computer literacy. Can any other
software company say the same? Microsoft has also been very flexible
in agreeing to the terms of the settlement beyond what is required
in any antitrust case.
Microsoft agreed to not enter into any agreements that would
obligate a third party to distribute or promote any Windows
technology exclusively or for a percentage of sales. I am sure
competitors will like that. They have also agreed to allow access to
their operating systems protocols that are used to operate within
their server to the competition for use with their software. That
sounds generous to me.
Now that Microsoft has gone out of their way to cooperate,
shouldn't we? Let us end this litigation and move on to more
pressing issues. Thank you.
Sincerely,
Georgia Foundotos
4 Damin Circle
St. James, New York 11780 -1604
MTC-00028379
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:51pm
Subject: Microsoft Settlement
I do not agree with the current proposed settlement as it
stands. I have signed Dan Kegel's petition being submitted to you.
Also, I ask you to reconsider your position and read Dan's website.
http://www.kegel.com/remedy
Without fixing this problem now we, as a nation, are consigning
ourselves and future generations to facing a severe monopoly in the
software market in America. Competition in this market in a fair and
equitable basis lowers prices for vital research and business
functions of public and private markets. Most significantly, from my
point of view, research funded by the government cannot afford a
Microsoft dominated market. Linux and open source free software is
just now setting research programs free of huge licensing overheads.
American business needs a cost reduction in software licensing,
especially in desperate economic times in the IT market.
All the horror stories of excited young companies with fresh new
ideas and new technology being eaten and destroyed by Microsoft
should fuel your drive to tame this monster! If Microsoft had decent
ethics and treated people right, I wouldn't feel this way or be
writing this letter. In fact, you would not have the case you have.
I respect the work and time Dan Kegel has put into his review of the
proposed settlement. Please give it your consideration. Thank you,
Dow
Dow Hurst
Office: 770-;499-;3428
Systems Support Specialist Fax: 770-;423-;6744
1000 Chastain Rd.
Chemistry Department SC428
Email:[email protected]
Kennesaw State University
[email protected]
Kennesaw, GA 30144
MTC-00028380
From: Edwin van Beuzekom
To: Microsoft ATR
Date: 1/28/02 2:51pm
Subject: 1/28/02 3 PM
1/28/02 3 PM
Gentlemen,
This letter is to emphasise my opinion that it would help
busines to settle the microsoft anti trust case. Please expedite
your decision and help business to grow again.
Sincelery,
Edwin van Beuzekom
email: [email protected]
MTC-00028381
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:51pm
Subject: Microsoft settlement
I am extremely disappointed in the government's proposed
settlement of the Microsoft case. The judge found that Microsoft had
abused its monopoly power to crush the competition and rig the
retail environment to ensure that consumers would have virtually no
choice but Microsoft. The proposed settlement barely gives Microsoft
a slap on the wrist and does nothing to make the market work as
intended: in a free and fair competition.
However, with a Republican administration in charge, I am not
surprised that the DOJ chose to ``wimp out'' and let
Microsoft off the hook. The Microsoft settlement, like the Enron
debacle, demonstrates that those with big money don't have to play
by the same rules as the rest of us. If they contribute enough to
the right campaign coffers, and use buzzwords like ``free
market'' and ``competition'' to cover their dirty
deeds, they can usually get
[[Page 28265]]
government officials to either gut existing regulations and rewrite
tax laws to their specifications, or at least look the other way
when they break the rules. And this means that big corporations like
Microsoft and Enron can get away with almost anything.
I'd like to have faith in the U.S. system of justice, but I
doubt the DOJ will redeem itself on this case. My only hope is
Microsoft does not yet own the EC, and Europe will refuse to be
bought out or bullied. That might at least slow down the Microsoft
juggernaut.
Sincerely,
Cynthia A. McCune
3177 Greenoak Court
San Mateo, CA 94403
MTC-00028382
From: Chuck Broms
To: Microsoft ATR
Date: 1/28/02 2:53pm
Subject: Microsoft Settlement
I support the purposed DOJ settlement with Microsoft.
Charles Broms
MTC-00028383
From: Douglas W. Lantz
To: Microsoft ATR
Date: 1/28/02 2:53pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to express my views surrounding the Microsoft
settlement. I believe that the agreement is fair and reasonable, and
would like to see the issue put behind us. Not only does the
settlement address the concerns that brought about the case in the
first place, but it also sets up guidelines of how to deal with
possible future problems. Microsoft has made unprecedented
concessions in an effort to end this debacle, and I will outline
just a few of them for you.
Under the settlement, Microsoft has agreed to grant computer
makers new rights to configure Windows so as to promote non-
Microsoft software in direct competition with programs included
within Windows. Microsoft will document and disclose for use by its
competitors various interfaces that are internal to Windows
operating system products. Also, Microsoft has agreed to license
Windows to the twenty largest computer manufacturers, which make up
a vast majority of PC sales.
There will always be those that try to pull down whoever is on
top, just as there will always be those that support it. I feel that
if this case is judged by the value of its merits, rather than the
depth of the lobbyists'' pockets, it is apparent that the
original problems have been solved. I believe that the suit has been
pushed by competitors rather than consumers. It has negatively
affected our entire industry. In short, three years has been long
enough. It is time to allow Microsoft and the IT industry as a whole
to return their focus to innovation, rather than litigation. We must
ensure our country's place in the world technology market, and the
best way to do it is by moving on. I thank you for your time and
consideration of my thoughts.
Sincerely,
Douglas W. Lantz, President
Advantage Technology Group, Inc.
[email protected]
513.563.3560
MTC-00028384
From: E L
To: Microsoft ATR
Date: 1/28/02 2:53pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
Id like to make my position known that I am against the Proposed
Final Judgment. MS has been given all the breaks in the case. The
Proposed Final Judgment pretty much seals the deal with Microsoft
walking away unscathed. Justice must be served and MS should be
dealt with accordingly. I again concur with my previous statement by
saying I oppose this Proposed
Final Judgment.
Sincerely,
Edith Landero,
310 S. Orange Ave Apt. 19
Lodi, CA 95240
MTC-00028386
From: Karina Montgomery
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 2:55pm
Subject: Microsoft Settlement
Dear Renata Hesse:
As a United States citizen, I urge you to withdraw your consent
to the revised proposed Final Judgment settlement in the United
States v. Microsoft Corp. antitrust case. The limitations and
punishments imposed upon Microsoft do not sufficiently restore the
competitive conditions previailing prior to Microsoft's unlawful
conduct.
The Settlement only prevents Microsoft from future monopolistic
practices; it does not punish Microsoft for previous unlawful
behavior. The advantages of immediacy and certainty of the proposed
Final Judgment are not sufficient cause for abandonment of pursuit
of further litigation.
The damage done to individuals and businesses by design of
Microsoft and its engineers and practices requires more punitive
measures than a slap on the wrist and a promise to never get caught
at doing it again.
I urge you to pursue litigation of the issue of remedy, whether
as set forth in the Final Judgement entered by the District Court on
June 7, 2000, or as one of the other remedy proposals described in
the Competitive Impact Statement, section (V) Alternatives to the
Proposed Final Judgement.
Thank you for your time and consideration,
Karina J. Montgomery DOB 1/13/70
4556 Park Blvd #1
San Diego CA 92116
Please refer to my voter registration or passport registration
which you as a government agency surely have access to in order to
verify my US Citizenship.
CC:Karina Montgomery
MTC-00028388
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:55pm
Subject: Microsoft Settlement
Attached please find a letter voicing my thoughts and questions.
Charlene Howe
(907) 333-;7207
Charlene Howe
8050 Resurrection Drive
Anchorage, AK 99504-;4731
Phone: (907) 333-;7207
E Mail: [email protected]
January 25, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I tried to fax this to you on my personal letterhead but your
fax lines were constantly busy. There must be a lot of people like
me wanting to express our concerns.
As a businesswoman and a veterinarian's wife who has been
following the Microsoft antitrust case, I believe the settlement is
pretty fair. I have a lot of respect for Microsoft; they've
contributed to the prosperity of the ``90's, produced well-
paying jobs, and provided great software at reasonable prices. Since
the technology sector accounts for a third of economic growth, I am
afraid what might happen to the industry if litigation continues.
Microsoft has been very cooperative throughout this ordeal. Not
only have they agreed to document and disclose various
Windows'' internal interfaces to competitors. They also agreed
to the establishment of technical team to monitor Microsoft's
compliance to the settlement. What other company would risk such
great exposure to competitors?
Unfortunately, the technology industry faces numerous challenges
in protecting the entrepreneurial spirit we depend on. Some special
interests are lobbying for increased litigation, regulation, and
legislation that could impact entire industries and threaten this
country's economic vitality. Should we allow this to happen?
Sincerely,
Charlene Howe
MTC-00028389
From: Gregory Gerard
To: Microsoft ATR
Date: 1/28/02 2:56pm
Subject: Microsoft Settlement
The proposed settlement does not redress the wrongs Microsoft
has been found guilty of.
Gregory Gerard
255 Manzanita Avenue
Palo Alto, CA 94306
MTC-00028390
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 2:56pm
Subject: Microsoft Settlement
January 28, 2002
Hon. Colleen Kollar-Kotelly
U.S. District Court, District of Columbia
c/o Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
[[Page 28266]]
Suite 1200
Washington, DC 20530-;0001
Dear Judge Kollar-Kotally:
As a long time political activist I am concerned about the
leniency regarding the proposed settlement between the Department of
Justice and Microsoft in U.S. v. Microsoft. It is my belief that
this will not put an end to Microsoft's monopolistic practices.
The settlement abandons the principle that fueled consumer
criticism and which gave rise to this antitrust case in 1998:
Microsoft's decision to bind--;or
``bolt''--;Internet Explorer to the Windows operating
system in order to crush its browser competitor Netscape. This
settlement gives Microsoft ``sole discretion'' to
unilaterally determine that other products or services which don't
have anything to do with operating a computer are nevertheless part
of a ``Windows Operating System product.'' This creates a
new exemption from parts of antitrust law for Microsoft and would
leave Microsoft free to bolt financial services, cable television,
or the Internet itself into Windows.
The settlement does nothing to deal with the effects on
consumers and businesses of technologies such as Microsoft's
Passport. Passport has been the subject of numerous privacy and
security complaints by national consumer organizations. However,
corporations and governments that place a high value on system
security will be unable to benefit from competitive security
technologies, even if those technologies are superior to
Microsoft's. Why? Microsoft controls their choices through its
monopolies and dominant market share, and still is able to dictate
what technologies it will include.
The weak enforcement provisions in this proposed deal leave
Microsoft free to do practically whatever it wants.
A three-person technical committee will be appointed, which
Microsoft appointing one member, the Department of Justice
appointing another, and the two sides agreeing on the third. This
means that Microsoft gets to appoint half of the members of the
group watching over its actions.
The committee is supposed to identify violations of the
agreement. But even if the committee finds violations, the work of
that committee cannot be admitted into court in any enforcement
proceeding. This is like allowing a football referee to throw as
many penalty flags as he likes for flagrant violations on the field,
but prohibiting him from marching off any penalties.
Finally, Microsoft must comply with the lenient restrictions in
the agreement for only five years. This is not long enough for a
company found guilty of violating antitrust law. The end result is
that this proposed settlement allows Microsoft to preserve and
reinforce its monopoly, while also freeing Microsoft to use
anticompetitive tactics to spread its dominance into other markets.
After more than 11 years of litigation and investigation against
Microsoft, surely we can--; and we must--;do much better
than this flawed proposed settlement between the company and the
Department of Justice.
Sincerely,
Tracy Lindgren
2825 Grand Avenue, Apt. 206
Des Moines, IA 50312
MTC-00028391
From: Chris Metzler
To: Microsoft ATR
Date: 1/28/02 2:56pm
Subject: Microsoft Settlement
Enclosed please find my personal comment on the proposed
settlement in the U.S. vs. Microsoft antitrust action. The comment
comes in the form of four attachments.
The first attachment is a text copy of a letter containing my
main comment.
The second attachment contains a text copy of an appendix to
that letter, going through the proposed settlement in detail and
providing a point-by-point critique.
The third and fourth attachments contain the letter and appendix
above again, but in .PDF format rather than text, making for more
attractive viewing and printing.
Thank you for the opportunity to provide a comment.
Dr. Christopher A. Metzler
CC:
[email protected]@inet
gw
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
To the United States Department of Justice, and to the United States
District Court for the District of Columbia:
I am writing to take advantage of the public comment period
regarding the proposed settlement in the antitrust action United
States v. Microsoft Corporation, provided under the Tunney Act. I
thank you for the time you will take to consider my opinions. Many
of the letters you will receive as public comments on the settlement
will come from computer industry professionals--;persons in the
pay of either Microsoft or their competitors. I am neither. Nor, for
that matter, do I have informal connections to the software
development industry. My profession has been that of a research
astrophysicist at prestigious research institutions. I mention this
to indicate both that I believe I have the competence to critically
examine the settlement and the opinions for and against, and that I
have no direct or indirect material stake in the outcome of this
settlement.
Despite my independence from the computer industry, as an
citizen and a computer user I have strong feelings about this
settlement. I believe that this settlement is not only contrary to
the public interest, but would damage it instead.
As I understand, it is not illegal for Microsoft to hold an
effective monopoly in personal computer operating system software.
What is illegal is for Microsoft to maintain that monopoly, and
attempt to extend their monopoly into other domains, using predatory
or anti-competitive practices. The District Court has found that
Microsoft has done this; the Court of Appeals has confirmed this
judgment, and the Supreme Court has effectively confirmed it again
by choosing not to hear a further appeal by Microsoft. Therefore,
Microsoft has once and for all been declared guilty of such
illegal conduct. Numerous Supreme Court decisions in anti-trust
cases have indicated that any remedy arising out of a successful
anti-trust action should deny the offending corporation the fruits
of its violations. And yet, despite the fact that Microsoft was
judged guilty by the court of damaging several companies illegally
by its actions, there are *no* penalties aimed at making amends for
Microsoft's past actions contained in this settlement. In fact,
while there are numerous terms clarifying how future operations by
Microsoft can be considered legal, there is *nothing*, anywhere in
the settlement, that penalizes Microsoft for its past actions. In
light of those past Supreme Court decisions, and in light of the
flagrant nature of Microsoft's violations of the law (given that
this is the second Federal anti-trust action against them, and their
violation of the previous consent agreement), a settlement that
entirely fails to penalize Microsoft for their past actions and
denies them the fruits of their illegal conduct cannot possibly be
considered to be ``in the public interest.''
Instead, the focus of the agreement appears to be simply to
prevent future anti-trust violations. This approach is tantamount to
saying ``it's OK that you violated anti-trust law and illegally
damaged other companies a second time, but you should stop it
now.'' Perhaps a better way to describe it is as saying
``Stop, or I shall say ``stop'' again!'' It
fails to penalize Microsoft for the wrongs already done, and only
tries to instruct Microsoft to obey a law that (being a law) they're
supposed to obey anyway! This alone would be unacceptable; but in
addition, the settlement as written does very little new to hinder
Microsoft from continuing to maintain its monopoly, or extend it
into other areas, using anti-competitive tactics. Indeed, analysts
within the computer industry press have typically described the
settlement as demanding almost nothing new from Microsoft. Legal
specialists in technology antitrust issues not employed by Microsoft
or their competitors have described the settlement as
``business as usual for Microsoft . . .no significant change in
the way it develops its products or sells to the marketplace.''
It is true that the agreement outlines constraints on
Microsoft's business practices, with the apparent intent of
preventing Microsoft from using its influence as a monopoly holder
either to force unfair agreements on other hardware or software
vendors or to retaliate against them for actions involving non-
Microsoft software. However, these constraints are extremely limited
in scope, are defined in terms of subjective descriptions which are
not easily enforceable, and are laden with loopholes. An appendix to
this letter covers several specific flaws in the agreement in more
detail; meanwhile, I wish to make several general points.
My appendix below notes how, because of subjective descriptions
and loopholes, the agreement fails to set viable restrictions on
Microsoft regarding the topics it actually considers. Such
subjective descriptions and loopholes matter, because Microsoft has
a history of using such flaws to violate agreements coming out of
legal actions. For example, the consent decree originating from
[[Page 28267]]
the earlier anti-trust action was meant to prevent such actions as
the bundling of Windows 98 and Internet Explorer, but this current
anti-trust action had to be started because of subjective terms
Microsoft successfully entered into the previous agreement that
allowed them to ignore its constraints. In the time this action has
taken, Microsoft's monopolies have become even more firmly
entrenched. To the extent that the requirements of Microsoft in the
agreement are concrete, they are comparable to what Microsoft has
been doing up to this point. And it is patently absurd to constrain
a company guilty of the sorts of actions demonstrated in this court
case simply be requiring them to act ``in good faith.'' In
other words, not only does the agreement fail to punish Microsoft
for its past illegal actions--;actions which have damaged or
even destroyed other companies attempting to compete--;but the
agreement also fails in the considerably less ambitious task of
clearly defining illegal actions or procedures that Microsoft must
avoid.
Finally, there are many topics not addressed by the agreement at
all, such as Microsoft's use of proprietary standards in file
formats, and how those standards combined with Microsoft's monopoly
status effectively block competing products from the marketplace.
Microsoft has an effective monopoly on certain types of productivity
software, such as word processors and spreadsheets (Microsoft Word
and Excel, now bundled together as part of Microsoft Office).
Because these monopolies are so entrenched, competitors cannot
produce competing software of these types unless their software can
read and write Microsoft file formats. Rather than attempting to
beat such competitors in the open market, Microsoft has repeatedly
acted to prevent competition from taking place at all by keeping the
internal file formats for these software packages secret, and by
periodically changing those file formats to block potential
competitors'' attempts at reverse-engineering them. That this
topic is not addressed at all is yet another major failure of the
agreement.
What are the consequences of these failures? Dreadful, if
Microsoft's past actions predict their future ones. There has been a
long history of companies profoundly damaged, or even completely
destroyed, by Microsoft's anti-competitive business practices.
Digital Research and Stac are two examples of companies whose
products were essentially run off the market in a flood of fraud and
misinformation and, in the latter case, simple copying of their
technology (for which Microsoft lost in court). This case has
centered on the damage to Netscape, Sun and Apple by Microsoft's
actions; there are many other such companies. we are left with a
situation where an environment of innovation and competition is
stymied--;stymied by fear of even bothering to enter the market,
given the expectation that Microsoft will do anything to destroy
your enterprise.
In the courtroom, it has been demonstrated that Microsoft has
falsified and even destroyed evidence. Despite these events,
accepted as fact in a court of law, no criminal penalties have been
forthcoming. In recent months, we have seen news stories covering
attempts by Microsoft to manipulate public opinion in unethical
fashion, ranging from organized efforts to get employees to stuff
online ballot boxes/polls about Microsoft and their products, to
writing letters to officials on Microsoft's behalf using the names
of people who are deceased.
Given this past history, that the Department of Justice would
arrive at such an empty settlement with Microsoft is bizarre. After
all, the verdict from the District Court was strongly in the Federal
Government's favor. While the Court of Appeals subsequently rejected
the breakup order, they clearly affirmed Microsoft's guilt. The
position of the Federal Government was strong, and Microsoft's
announcements of what penalties or restrictions they would not
accept in a judgment should have carried no more weight than the
assertions of a convicted felon that he ``would not
accept'' jail time. It has been noted by Rep. John Conyers Jr.,
the ranking member of the House Judiciary Committee, that this
settlement in fact is less onerous for Microsoft than the terms that
Microsoft was willing to concede in settlement talks *before* it
lost the case in the Court of Appeals.
Conyers went on to describe the settlement as ``like losing
a game by forfeit when your team was ahead with the bases loaded and
your best batter on deck.'' (Washington Post, 2 November 2001)
Or, as an acquaintance wrote, ``Can someone explain to me how
you can win the trial, win the appeal, have the Supremes deny cert
to the defendant, and then let the perps walk?''
So why ``forfeit''? Why this settlement? The most
commonly-encountered explanation is that the settlement springs
purely from politics: the executives of Microsoft were major
campaign contributors to the current administration. For example,
Robert Lande, a professor of antitrust law who has followed the case
closely, has commented that ``Microsoft broke open the
champagne when Bush was elected.'' This may or may not be an
accurate assessment of the source of this agreement; but it is a
difficult suspicion to dismiss; and if this suspicion is true, the
claim that the agreement is in the public interest seems even more
preposterous. Another explanation offered for this settlement has
come from Microsoft and its employees, who have argued that the
settlement is indeed in the public interest simply because it halts
the continuing hindrance of the operations of the leading computer
software company, and therefore is good for the high-tech industry
and the economy. These statements are the modern-day equivalent of
``what's good for General Motors is good for America,''
and they are false. It is true that our modern economic engine
depends strongly upon the continuing innovation of the computer
industry. However, that innovation depends in turn upon the ability
of many different sources to imagine and create new software, and
for those creations to be able to compete for public attention. It
is indeed a bad thing to stifle the ability of the nation's largest
software company to produce new products; but it is not an
acceptable alternative to stifle the ability of everyone *but* that
company to innovate instead.
In short, this settlement is a disaster for the citizens of the
United States. It is the polar opposite of an action in the public
interest.
It neither penalizes Microsoft for its past illegal, destructive
acts, nor does it force the kind of change in Microsoft's current
business practices necessary to prevent further predatory, anti-
competitive behavior. This despite a contempt for the public and the
law displayed in Microsoft's behavior in the courtroom and up to
this very moment. If this settlement is upheld, I can guarantee that
over its five year course, the problem with Microsoft will only
worsen. This may result in yet another court challenge against
Microsoft; but we have seen in this case alone how Microsoft
attempts to slow the pace of court action as long as possible, the
better to create a ``fait accompli'', as they successfully
have here. If history, and this and the previous agreements in
particular, are any guide, Microsoft will yet again be able to hang
on to their ill-gotten gains, and be faced with a set of
``restrictions'' that effect no change and allow them to
continue to reinforce their monopolies. The resulting damage to the
prospects for innovation and competition in the high-tech sphere
will be incalculable, and to the public interest even more so. If
Microsoft's hegemony in the computer industry is allowed to solidify
further, as this agreement would guarantee, then we will bequeath to
our children the kind of future that the early anti-trust actions
against Standard Oil or Jay Gould were intended to prevent: where
one entity controls the dominant new industry in our economy. We can
be better ancestors than that. I therefore urge you, as strongly as
I can, not to accept this settlement.
Thank you for your consideration.
Sincerely,
Dr. Christopher A. Metzler
2702 Hemlock Avenue
Alexandria, VA 22305
APPENDIX: SOME DETAILED COMMENTS ON THE TERMS OF THE AGREEMENT
The most significant complaint about this agreement is a general
one. Microsoft has been found to be a monopoly by a court of law;
that verdict has been affirmed by the Court of Appeals, and the
Supreme Court has chosen not to review that affirmation. Therefore,
under existing antitrust laws, Microsoft is required to conduct its
business practices in a non-predatory/non-anti-competitive fashion.
This is a standing requirement of law upon Microsoft. As noted in my
letter, the agreement as written holds no penalties for past action,
only ``restrictions'' upon future behavior. In my letter,
I noted how these ``restrictions'' are ineffective; below,
I go into more detail on some of these. But most important of all is
the fact that such restrictions should be unnecessary; they attempt
to restrict Microsoft from doing things that are illegal in the
first place, since as a monopoly Microsoft is bound not to conduct
its business in a predatory fashion. For example, requiring
Microsoft in the agreement not to retaliate against companies that
sell competing products with their computers is no great
accomplishment; that was already illegal! In fact, enumerating such
restrictions, and then
[[Page 28268]]
providing exceptions shortly afterward, gives the impression that
there are certain terms under which Microsoft is actually *allowed*
to violate the law. This cannot be considered acceptable.
Below are specific comments on parts of the agreement.
--;Section III, Part A--;
Section III, Part A. has several problems. First, it only
restricts what Microsoft can do against OEMs, which means makers of
``Personal Computers'' according to the definition given
later in the settlement.
The definition of ``Personal Computers'' used in the
agreement excludes a wide class of technologies which should not be.
For example, a maker of machines which are intended to be used as
servers does not fall under this definition--;odd given that the
distinction between machines intended as desktop PCs and machines
intended as servers is often blurry. The phrasing in this Part
indicates that Microsoft is perfectly free to retaliate however they
choose for whatever they choose against manufacturers/vendors of
server hardware.
Second, it says that Microsoft cannot retaliate by altering
commercial relations with OEMs. But they can certainly retaliate by
doing nice things for everyone *but* the target OEM. That might seem
to be forbidden from the next clause in that sentence (including the
parenthetical remark), but it isn't; that only forbids withholding
*non-monetary* Consideration that others get. They can withhold new
*monetary* Consideration that others get without running afoul of
the agreement.
Furthermore, this Part restricts retaliation, but it doesn't
restrict Microsoft from entering into really predatory licenses with
companies with whom they hadn't previously been doing business. In
other words, Microsoft could act so that if you were not previously
licensing Windows, and wanted to be, you'd better not do anything
that upsets them (such as described in Subparts 1, 2 and 3 of this
Part, III A.) or you'll only get a bad license from them. You might
think this is prevented by Part B immediately following; but that
only applies to ``Covered OEMs'', not new ones.
Next, Section III, Part A restricts Microsoft from retaliating
against OEMs that ship Personal Computers that include Windows and
another OS or will boot more than one OS; but it doesn't restrict
them from retaliating against companies that ship or are
contemplating shipping machines which do not include a Windows OS at
all. Against OEMs that ship some of their Personal Computers with
only a competing operating system installed, or with no operating
system installed, Microsoft is perfectly free to retaliate however
they like.
Next, OEMs which are not Covered OEMs can have their Windows
licenses terminated without the notice and opportunity to cure
described here as to be provided to Covered OEMs. What is the
purpose of this distinction? Why do only the bigger OEMs get this
protection? The obvious reason is ``to lock them into selling
Windows.'' In other words, a clause assisting Microsoft in
further solidifying its monopoly is contained within the agreement
itself!
Finally, the last paragraph says that Microsoft is not
prohibited from providing Consideration if it's commensurate with
the OEM's effort/expenses related to Microsoft products. But since
Microsoft is not required to provide this Consideration, this means
that they can use this provision of Consideration as a carrot for
the kind of behavior they want OEMs to follow. The first part of
this restriction might seem to forbid that, since it talks about
withholding Compensation--;but that's non-monetary compensation
only. They could certainly give monetary compensation (i.e.
kickbacks) under this ``restriction.'' One might think
this is prevented by the restrictions in Part B immediately
below--;but again, that only applies to Covered OEMs, not new
ones.
--;Section III, Part B--;
Similar to the guarantees of license termination warnings/
opportunities to cure described in the previous Part, the presence
of such volume discounts, and different volume discount schedules
for 1-;10 vs. 11-;20 Covered OEMs, strongly discourages
those OEMs from selling any other OS. This is another clause which
*helps* Microsoft maintain its monopoly.
--;Section III, Part C--;
Since the constraints of this part only apply to Microsoft's
interactions with OEMs--;makers of ``Personal
Computers''--;other hardware manufacturers, such as people
making machines which are intended to be used as servers, *can* be
restricted by Microsoft from exercising the options listed here.
--;Section III, Part D--;
Under these terms, in order to obtain information about the
Windows APIs etc., one has to join MSDN or ``similar
mechanisms.'' What are the terms of so joining? Presently, MSDN
subscriptions cost a lot of money. This constraint seems to be
saying that to get Microsoft to play fair, everyone has to pay them!
Furthermore, what's to prevent Microsoft from making joining this
mechanism difficult for entities they wish to punish or abuse?
Also, this section requires Microsoft to begin providing access
to APIs in a ``Timely Manner,'' which is defined as
``the time Microsoft first releases a beta test version of a
Windows Operating System Product that is distributed to 150,000 or
more beta testers.'' So if they only release it to 149,999 beta
testers, this time never arrives (and so the restrictions which are
to occur at that point don't)?
Clearly, this ``Timely Manner'' demand is easily
circumvented. And, for the purposes of this agreement and
definition, what's a beta tester?
If the software is sent to a company, such as a member of MSDN,
to be tested, does that company count as one beta tester? Or are
there as many as the company has employees that *ever* sit down in
front of a machine. This is not clear, and is full of possibilities
for exploitation.
--;Section III, Part F--;
This section hinges on the ban against
``retaliating''; it is not clearly defined what would
constitute ``retaliation.''
Furthermore, the entities used in this Part are defined in terms
of the term ``Personal Computer,'' which again is defined
in a very restrictive fashion. Again, Microsoft is allowed under
this Part to retaliate against manufacturers of machines which are
intended to be used as servers, for example.
--;Section III, Part G--;
Once again, Microsoft is permitted under this Part to retaliate
against a wide class of hardware manufacturers and vendors because
of the bizarre definition of ``Personal Computer'' used in
this agreement.
Furthermore, an exception is provided where Microsoft
``obtains a representation that it is commercially
practicable'' for the other party to do equal or bigger
business with competing software. Nowhere does the agreement
indicate from where such a representation of feasibility must
come--;it could come from inside Microsoft itself!
The agreement does say that the representation should be
obtained ``in good faith''; but that's subjective, and
absurdly generous to a company that has been found guilty of
repeated abusing past agreements.
--;Section III, Part H--;
In Subpart 1, allowing MS to present the options for MS or non-
MS software to people as ``one group'' or ``the other
group'' virtually guarantees no one will use the non-MS stuff.
Regarding the exceptions 1. and 2. to the rest of Part H, both
listed near the end of the part, 2. is an enormous loophole! It
allows Microsoft, and their Windows OS, to shun some non-Microsoft
software simply because Microsoft or some capability of Windows
itself claims that software is not up to snuff. It could be a
ridiculous claim; but in the time it takes to sort it out, the
practical damage to the company providing that software is done, and
Microsoft's monopoly position is that much stronger. And, of course,
``reasonably prompt'' is a subjective term, and based on
their past behavior, Microsoft can be counted upon to interpret it
to their advantage.
--;Section III, Part I--;
Again, this section is hobbled both by the use of subjective
terms (``reasonable'') and the bizarre definition of
``Personal Computer'' used throughout this agreement.
Subpart 5 seems to be saying that in any agreement Microsoft
signs to give people APIs or documentation or similar information,
like they're supposed to provide under the agreement, Microsoft can
in turn require the software makers to license to Microsoft any
intellectual property rights they might have associated with
anything the software companies might do that's described in this
Judgment, even if those properties are unrelated to the project for
which the APIs/etc. are used. This effectively authorizes one of
Microsoft's more strongly anti-competitive tactics!
--;Section III, Part J--;
This is perhaps the most flawed Part of the entire agreement.
Regarding Subpart 1 . .who decides whether disclosure of a
particular piece of information compromises the security of anti-
piracy etc. systems? Microsoft? They can just say that it does,
without substantiation, and thus avoid terms of this agreement. Any
disagreement with Microsoft's claim, and they just drag it out
forever in court while the other company dies. This sequence of
events could not be more predictable. It will happen. Count on it.
[[Page 28269]]
Furthermore, it is important to note that effectively all
communications protocols of interest include some sort of
authentication process, that Microsoft's future plans involve
license subscription with online verification, etc. The claim can be
made that none of their APIs, relevant documentation, or
Communications Protocols are completely empty of information on
security protocols, software licensing, encryption, authentication,
digital rights management, etc. This clause basically means that
Microsoft can withhold pretty much everything. It is a loophole
through which a supertanker could be sailed.
Regarding Subpart 2, how is it determined whether a licensee has
a history of willful violation of intellectual property rights? Is
it from past legal convictions, or findings against them in civil
courts?
Or is it just that Microsoft says so? And who decides whether he
licensee has ``a reasonable business need for the API,
Documentation, or Communications Protocol''? Microsoft? And who
gets to decide whether the standards Microsoft gets to establish for
certifying the authenticity and viability of the business are in
fact ``reasonable'' or ``objective''? Microsoft
has stated that they do not consider Open Source to be a viable
model; does this mean that no one writing Open Source software would
be allowed to look at the APIs or Communications Protocols?
Apparently, according to the terms in this agreement.
In particular, this is an effective lock-out for designers
wishing to create free software relating to anything which contains
``security''-type subsystems (of the types listed in the
Subpart). And regarding 2d), since the third party, that gets to
test/ensure verification and compliance with Microsoft
specifications, has to be approved by Microsoft, what's to stop
Microsoft from using this third party evaluation as a barrier to
other companies'' bringing their products to market? Nothing in
this judgment.
This Part is a disaster.
--;Section IV, Part A--;
The presence of subjective terms such as ``reasonable
opportunity'' seems like a recipe for further delays while
court actions proceed.
--;Section IV, Part B
Three people is not a sufficiently large group to vigorously
pursue everything the Technical Committee is tasked to oversee.
Furthermore, the small size of the committee makes it strongly
susceptible to politics: a pro-Microsoft administration means two
pro-Microsoft members on the Committee voting in the third member.
To a great many people, this committee appears to be an empty
gesture.
And the constraint on public comments by the TC has enormous
ramifications. It prevents whistle-blowing, for example. If the
system breaks, and two members of the Committee are protecting
Microsoft, the third can't say anything about it.
--;Section IV, Part D
Subpart 4c) indicates that ``If the TC concludes that a
complaint is meritorious, it shall advise Microsoft and the United
States of its conclusion and its proposal for cure.'' No
provision is made for what happens next. What if Microsoft disagrees
with the Committee? What mechanism exists to decide what the
appropriate response to the complaint will be? How long can
Microsoft drag out the proceedings?
Subpart 4d) is, to be blunt, appalling. Under this agreement, if
the TC finds that Microsoft has been brazenly violating this
agreement, that fact can't be used in any court proceeding? And the
Committee members can't talk about it in any legal proceeding? This
is simply absurd; it seems intended to make sure that the Committee
cannot actually accomplish anything.
--;Section V, Part A--;
This Part defines the length of the agreement as five years.
This is too short for any penalty agreement, of course; anyone
following this case knows that Microsoft can drag out a court action
for three years at a minimum.
--;Section VI--;
``Consideration'' is poorly-defined. It is not
sufficiently general; there are many other forms of compensation
than are listed here. Under the definition of ``Microsoft
Middleware Product,'' existing technologies which are not
listed there--;such as IIS, SQL software, etc.--;are not
Microsoft Middleware Products, and so Microsoft can go ahead and
continue to exploit secret capabilities of the kernel/APIs in their
design, and thus maintain an unfair advantage over competing
software.
As noted above several times, the definition of ``Personal
Computer'' is far too narrow. In particular, there is often no
practical distinction between desktop, ``intended-for-single-
user'' machines, and machines intended to be used as servers.
Excluding servers from the definition (and thus from the constraints
of any agreement) makes no practical sense.
Also as noted above, ``Timely Manner'' is defined in
an easily-circumvented fashion.
The definition of ``Windows Operating System Product''
notes that Microsoft alone gets to decide what is part of the
Windows OS and what is not. If this restriction had been in place in
the past, many of the claims Microsoft made in this case, later
disproven, would simply have been accepted as fact. This is a bad
definition.
MTC-00028392
From: Wayne Smith
To: Microsoft ATR
Date: 1/28/02 2:57pm
Subject: Microsoft Settlement
The currently proposed settlement with Microsoft seems bad in
that it does not appear to penalize or restrain Microsoft enough.
Wayne L Smith
669 Los Ninos Way
Los Altos CA 94022
[email protected]
MTC-00028393
From: A L
To: Microsoft ATR
Date: 1/28/02 2:58pm
Subject: Microsoft Settlement
Dear Judge,
I want to let you know that I am against the Proposed Final
Judgment. Microsoft should not go unpunished for leveraging their
illegal monopoly and utilizing anti-competitive behavior. MSs fruits
of their illegalities must be dealt with in a proper manner. The PFJ
does non-of this. Thus I submit my stance opposing the Proposed
Final Judgment. Thank you for your time in the matter.
Respectfully,
Aubrey Landero
310 S. Orange Ave. Apt. 19
Lodi, CA 95240
MTC-00028394
From: joeikel
To: Microsoft ATR
Date: 1/28/02 2:57pm
Subject: Pubic Comment
I desired to get a signed copy of my comments to you concerning
the Microsoft case and requested Mail-Etc to send a FAX to you but
they have reported difficulties in establishing a connection.
To assure that my comments will arrive in a timely manner I am
sending them as an attachment to this e-mail. Mail-Etc will continue
to send a FAX and if they succeed there will be a duplication of
documents in your files.
Thank you!
Joe G. Ike
MTC-00028394--;0001
3410 76th Avenue, SE
Mercer Island, WA 98040-;3439
January 25,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to you today to encourage you to bring the
litigation against Microsoft to an immediate and decisive closure. I
must state that I have been unequivocally and strongly against this
case from its very inception. It appears evident to me that it is
very unfair to punish a company for excelling in their industry. I
am a volunteer instructor with a non-profit organization teaching
senior citizens how to enrich their lives by becoming computer
literate. This is no easy task but at the close of every session I
thank God that Microsoft has been so innovative and far sighted as
to integrate their basic Operating System with applications to
provide the User with a basis of commonality that makes the learning
process infinitely easier. This applies not only to senior citizens
but also to those individuals learning the use of new software to
increase their knowledge and consequently leading to industrial
efficiency. Prior to my retirement I vividly remember the days when
it was a nightmare when attempting to home-brew our own integrated
system. I have experienced the fact that Microsoft has expended
every effort to provide us with the features that we sorely needed.
As I dwell upon the past three years I conclude that it must
have been very taxing on the IT industry, the economy, Microsoft and
its employees. I understand that Microsoft has spent millions of
dollars in their defense--;money that could have been put into
the development of new products
[[Page 28270]]
resulting in further advancement of technology and industrial
efficiency. The employees of Microsoft have had to endure an air of
uncertainty during this entire situation. As a citizen I am
extremely concerned with the possible flight of talent that is the
backbone of Microsoft's awesome capability.
It is difficult for me to understand the problems related to the
proposed, but rejected, settlement. Judging from what the media has
reported, Microsoft has agreed to the terms included in the
settlement as well as to the terms brought forth on issues that were
not considered to be unlawful. To name two concessions, Microsoft
has agreed to avoid agreements that would obligate any third party
to exclusively distribute Windows technology. Additionally,
Microsoft will not obligate software developers to refrain from
developing competing software. Frankly, I personally cannot
understand why Microsoft should have to divulge the code that makes
up their Operating System. I would certainly include that in the
realm of being proprietary and intellectual property. To put it more
strongly, to me it smacks of being a case of sour grapes by certain
other organizations that have not been as successful.
MTC-00028394 0002
Chairman Greenspan commented, with words to the effect, that the
Guide-On that is going to lead the economy of our nation out of the
doldrums is technology. It is our future. There is absolutely no
doubt in my mind that Microsoft has been a major contributor to
technology. As a result, and to reiterate, I personally would like
to see this matter closed as soon as possible and I am sure that I
am among many who share this same point of view. Thank you for your
time and giving me this opportunity to voice my opinion.
Sincerely,
Joe G. Ike
Engineer( retired )
e-mail [email protected]
tel: (206) 232-;5643
MTC-00028395
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:04pm
Subject: Microsoft Settlement
Sir:
The Intellectual Property Group strongly urges the government to
conclude that the proposed settlement with Microsoft is wholly
inadequate to encourage Microsoft to comply with applicable legal
and ethical practices.
Microsoft has often played the game that simply because an
action is not specifically illegal, then it is acceptable to take
the action, even if such action is contradictory to common business
ethics. In many cases, Microsoft has taken this concept a step
further and unilaterally decided that certain laws are extremely
limited, as in the case of failing to identify communications with
Congressional representatives because, as Microsoft alleges, they
are not part of the government (referring specifically to
Microsoft's interpretation of the Tunney Act). In fact, Senator
Tunney recently declared, with respect to Microsoft's interpretation
of the law, ?I do have some pride in my legislative record and my
history of service in the Senate, and I
don-bs't like to have my words and my
intention being misinterpreted,? reported at http://
www.siliconvalley.com/docs/news/depth/tunney012602.htm. ?The
disclosure provisions were designed to help ensure that no defendant
can ever achieve ! through political activities what it cannot
obtain through the legal process.? Id. ?Failure to comply with these
provisions raises an inference or, at a minimum, an appearance of
impropriety.? Id. Microsoft has a long record of disregarding the
law and intellectual property rights of others in favor of its
determination to sustain its monopoly. Microsoft executives have
often criticized competition without factual basis, and have
launched smear campaigns against people who take positions contrary
to their immediate business interests. Moreover, Microsoft has a
long record of campaigning against fair competition by other
technologies, including open source technologies. Microsoft has
attempted numerous times to quash and tarnish the goals of the open
source movement. Such tactics are not only fundamentally unfair and
unethical, but also against the interest of consumers, especially in
view of Microsoft's dismal software security record.
The Intellectual Property Group urges the government to insist
on a settlement or verdict that serves to benefit consumers. Such a
settlement would not only require Microsoft to timely share relevant
portions of its software code with the business community, but would
also require that it agree to offer reasonable royalties to
intellectual properties in which it holds a controlling interest.
Without this second aspect to the settlement, smaller companies
could be subject to intimidation and lawsuits by Microsoft. Such
actions would stifle competition and result in fewer choices for
consumers.
Sincerely,
Dave Ashby
The Intellectual Property Group
http://www.ipgroup.org
MTC-00028396
From: Todd Symionow
To: Microsoft ATR
Date: 1/28/02 2:58pm
Subject: Microsoft Settlement
The settlement that the DOJ and Microsoft came up with is
ineffectual and is bad for the people of the United States. After
reading the agreement, it appears to me that Microsoft dictated the
document to the DOJ, who typed it up for them. Microsoft has
received a judgement of being a Monopoly by the courts.
Microsoft should have received a fine of several billion
dollars, plus stiff oversight into its practices (like IBM had to go
through). The settlement does not punish Microsoft for its illegal
and monopolistic activities and doesn't prevent it from continuing
to operate in illegal and monopolistic ways. The most important part
of the case was ignored by the DOJ--;Microsoft's tying of
software to its operating system. The largest harm that Microsoft
has done to the citizens of the United States is the integration of
more and more software into its operating system (Microsoft calls it
middleware). Every time Microsoft integrates another program into
the operating system, it harms the marketplace by killing
competition, forcing us to use Microsoft's proprietary technology
(such as activeX, rather than Java), and preventing us from
uninstalling unwanted features/software. Microsoft keeps talking
about innovating. When it talks about innovation it's really talking
about monopolization.
The agreement talks about removing shortcuts and icons. The real
answer is for the web browser (and other middleware) to be separate
from the operating system so that the consumer can choose which
browser (middleware) to use. This wasn't in Microsoft's monopolistic
interest, because having the browser (middleware) separate from the
operating system prevented Microsoft from locking consumers into
using Microsoft's proprietary technologies. I am extremely concerned
about Microsoft's .net technology. Not only is Microsoft tying all
of their products into .net, but they are beginning to require
consumers to use it. An example includes the messaging and
multimedia features built into Windows XP. To take advantage of
these features, you have to sign up for a Passport (.net) account.
This is another form of Microsoft's illegal and monopolistic
behavior.
Microsoft has continuously broken previous consent decrees. I
have no confidence that Microsoft will abide by this decree either.
Besides, this decree is just a slap on the wrist. The world's
largest monopoly in history must be fenced-in and controlled so that
it doesn't continue to harm consumers. I truly feel that the current
DOJ, under the current Pro-business Bush administration is doing a
disservice to the American people by not dealing with Microsoft more
harshly. This is a turning point. Our government has the opportunity
to change Microsoft's behavior now and to restore competition in the
computer software marketplace. The Microsoft settlement will not
restore competition and it does not punish Microsoft for its
illegal, monopolistic actions.
I do not support the current Microsoft Settlement. The opinions
expressed in this email are my own.
Todd Symionow
CC:Todd Symionow
MTC-00028397
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 2:59pm
Subject: Microsoft Settlement
To whom it may concern
I don't feel that the current Settlement will curtail or
discourage Microsoft from continuing the same illegal practices.
Something has to be done to truly level the playing field. There are
many talented and creative people who do not further our current
technology because they know that Microsoft would use their money to
crush it no mater how good it is. Almost all of my co-workers feel
the same way. And many of them feel that Microsoft has the DOJ in
it's
[[Page 28271]]
pocket and will be able to get away with what ever it wants to. If
people could commit a crime that would make them $50,000,000,000 and
all they had to do was give back $1,000,000,000 most people would do
it as many time as they were allowed. And with the current
settlement, Microsoft WOULD NOT be giving up a billion dollars and
WOULD be furthering their Monopoly! I read an editorial in Barrons,
December 10th, metro section in which a Dr. Jeffrey Smith gave a
very good analysis and solution to the problem. I would highly
recommend a read of the article and especially his solution.
Thank You,
David Anderson
This is my opinion and I am not speaking for JPL or NASA.
MTC-00028398
From: WILLIAM ROSSI
To: Microsoft ATR
Date: 1/28/02 3:00pm
Subject: Microsoft Settlement
20 Bea Avenue East Northport, NY 11731
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft: I am supportive of the Department of
Justice's efforts to settle the antitrust case against Microsoft. I
prefer the remedies provided by the settlement agreement, as opposed
to breaking up Microsoft. Anticompetitive business practices will be
curtailed by Microsoft's agreement; for example, it will become
easier for consumers to remove features of Windows from their
computers and replace them with other software programs.
Additionally, Microsoft has agreed not to retaliate against software
developers who promote software that competes with Windows. The
settlement agreement provides the appropriate remedies to the
complaints made by the plaintiffs. No further action should be taken
against Microsoft at the federal level.
Sincerely,
William Rossi r
MTC-00028399
From: Richard Murchy
To: Microsoft ATR
Date: 1/28/02 3:06pm
Subject: Microsoft Anti-trust case.
Attorney General John Ashcoft
U S Department of Justice
950 Pennsylvania Ave.NW
Washington D C 20530
Dear Mr Ashcroft,
This letter is to show my support for the pending settlement of
the Microsoft Amti-trust case. The compromise represents a fair
resolution to this legal dispute.It has gone on long enough.
Microsoft has made the Computer easy to use and the breakup of
this great company is a poor decision to make. The proposed
settlement provides flexibility for computer makers with uniform
licensing, rights to re-configure Windows with other programs,
abilities to license Microsoft technologies and to have access to
the Windows internal code. With these conditions in place Microsofts
rivals will have ample opportunity to carry on their own operations
and will allow Microsoft to operate without further disruption,
which of course, will be an asset to the computer consumer and the
current struggling economy.Don`t breakup this fine company
that has put the world at our fingertips.
Sincerely,
Richard S. Murchy
W.188 Lake Forest Lane W.
Shelton, WA 98584
CC:[email protected]@
inetgw
MTC-00028400
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:01pm
Subject: Fwd: Attorney General John Ashcroft Letter
THEY MADE SOME BRUTAL BUSINESS DECISION, BUT TO BREAKUP A
TECHNOLOGY COMPANY WHO STARTED FROM SCRATCH IS DISASTEROUS AGAINST
ALL BUSINESS GROWTH PRINCIPLE. hOWEVER i BELIEVE THE SHOULD PAY A
CONSIDERABLE FINE WHICH SHOULD BE to PROVIDE INTERNET SERVICE TO
SMALL COMMUNITY FARMS REALLY UNDERPRIVELEGED AND THEY SHOULD BE ABLE
TO CHOOSE THWE INTERNETSERVICE FOR THEIR OWN CHOICE AND msft SHOULD
PAY FOR 3 YEARS.
I AM A VERU SMALL FRY INTERESTED IN BUSINESS AND TECHNOLOGY. P L
E A S E get ENRON and these crooks Thanks I hope yopu give my
thought some time.
Respectfully
Josef Brunner
MTC-00028401
From: mofish
To: Microsoft ATR
Date: 1/28/02 3:03pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft: Thank you for finally ending the antitrust
lawsuit against Microsoft with a settlement that is more than fair.
I personally feel that enough is enough. We have expended millions
of dollars on this suit already, and I believe our tax dollars could
be more prudently allocated.This is a strong agreement. It grants
computer manufacturers new rights to configure systems with access
to various Windows features. In addition, it creates a governmental
technical oversight committee to review Microsoft software codes and
books, and to test Microsoft compliance to ensure that Microsoft
abides by the agreement. The only term of the settlement I believe
is inappropriate is the internal interface disclosure. I do not
believe that Microsoft should have to divulge any information to its
competitors relating to how it designs or secures its product. This
particular term defies the very foundation upon which this nation
was built: free enterprise. Your decision demonstrates insightful
leadership on your part. I am glad that our Attorney General is a
friend of American business. In my opinion, no more action should be
taken at the federal level in this case.
Thank you.
Sincerely,
Chris Johnson
20821 Hillcrest Pl. Edmonds, WA 98026
MTC-00028402
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:03pm
Subject: Microsoft Settlement
I believe the settlement by the mediator was fair and beneficial
to consumers and the United States economy. It is time to move
beyond this litigation.
Joyce & John Hammill
MTC-00028403
From: Mark G. Munsell
To: Microsoft ATR
Date: 1/28/02 2:59pm
Subject: Microsoft Settlement
MTC-00028404
From: t t
To: Microsoft ATR
Date: 1/28/02 3:04pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
Your honor I submit my objection to the Proposed Final Judgment.
Apparently, there are several loopholes encompassed in the framework
of the final proposal, which favors Microsoft. The proposed final
settlement does not dish out any due justice or punishment on the
side of Microsoft. At the same time no devices are in place to
ensure MS compliance to the stated rules enclosed in the
settlement.Although being closely monitored, Microsoft will not have
any direct supervision to reassure the company complies with the
stated agreement. A three-man compliance team overseeing Microsoft
remain in alignment to the stated rules and regulations. This three-
man oversight team will be composed of the following: one appointee
from the Justice Department, one appointee from Microsoft, and
another appointee chosen by the two existing members. In turn,
Microsoft will control half of the oversight team. All findings by
this committee will not be allowed into court. The sole purpose for
such a committee is to inform the Justice Department of all
infractions committed by Microsoft. Subsequently the Justice Depart
will launch its own investigation into the matter and commence
litigation to halt all infractions. When all is said and done, the
oversight committee is just window dressing. In turn, who will not
strictly oversee Microsofts business moves? In my opinion, the
Proposed Final Judgment does not provide sufficient and appropriate
restrictions or penalties against Microsoft. What reassurance do we
have against Microsofts illegal and illicit activities? I can assure
you that the Proposed Final Judgment does not effectively address
the question. I am against the Proposed Final Judgment. It in fact
pardons MS of all wrongdoing.
Respectfully,
Travis Thurman
311 Estes Ct.
Travis Airforce Base 94535
MTC-00028405
From: Hugh Queen
To: Microsoft ATR
[[Page 28272]]
Date: 1/28/02 3:03pm
Subject: Microsoft Settlement
301 Bobby Jones Road
Sarasota, FL 34232
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I hope that this settlement will mean the end of any further
action at the federal level and put an end to any more attacks on
Microsoft. Microsoft has never been a monopoly and the government
certainly has no place telling people how to run their businesses.
Microsoft is willing to put this behind them; they are
sacrificing potentially millions of dollars in profits in order to
get a settlement agreed upon. They are giving up access to their
source code without retaliating when it is used to compete with
Microsoft products. This alone will cover any complaints against
Microsoft by allowing a greater number of products to be used in
what were predominantly Microsoft areas.
I hope that his will satisfy everyone, as it well should.
Microsoft is going above and beyond what was expected of them and it
should be appreciated.
Sincerely,
Hugh Queen
CC:[email protected]@
inetgw
MTC-00028406
From: Betty Brennan
To: Microsoft ATR
Date: 1/28/02 3:04pm
Subject: Microsoft Settlement
Please settle the Microsoft case with the current findings. We
feel the prosecution of Microsoft has been and is detrimental to the
entire economy. The public has been penalized by actions of the
federal government in this unreasonable prosecution by the
government, Microsoft competitors, various states where the
competitors reside and a prejudiced judge. We feel Microsoft has a
better product and should not be prosecuted for making the best
successful economy in history and its prosecution led to the
recession. It appears the other giants, i.e. Exxon and Mobil,
merging banks, merging lumber companies, etc. manage to merge and be
monopolistic to the detriment of the regular citizen causing
increased prices and the federal government does not interfere.
While Microsoft gets punished for going it alone (without political
aid) and the other giants lobby Congress, we (everyday citizens)
have to pay the higher prices.
Please settle this matter with the current decisions and do not
carry it out any longer. Forcing Microsoft to help their competitors
is unAmerican.
Joe and Betty Brennan
FAX206-;878-;1681
MTC-00028407
From: Edward Votypka
To: Microsoft ATR
Date: 1/28/02 3:04pm
Subject: Microsoft Settlement See attached, please.
MTC-00028407--;0001
@??d;7??---;--;R*EDWARD A. VOTYPKA
16611 Mohican Trail
Chagrin Falls, OH 44023
January 25, 2002
Attorney General Mr. John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
This is to voice my support for the settlement recently reached
between the Department of Justice and Microsoft. In my opinion, this
lawsuit should never have happened. The basis of antitrust laws is
damage to the consumer and monopolization of the market. There was
no damage to the consumer. Bill Gates, through Microsoft, has helped
consumers enormously. He standardized computer software. You do not
need five different programs to do something. Nor is the price
exorbitant; in fact, prices for software have gone down. Microsoft
put out a better product at a better price. His competitors had
every chance, and still do, to put out a better product and they
have not. Instead, they have gone crying to the federal government
citing lack of competition. While it is true that Microsoft plays to
win, so does every other firm in the IT business ?? indeed, in any
business. Microsoft has tried to be fair in meeting the Department
of Justice demands. Microsoft has agreed to open the company up to
more competition, agreeing to allow other developers more of its
copyrighted code to aid in the development of third party programs;
Microsoft has agreed to a uniform price list; Microsoft has agreed
to disclose interfaces that are internal to Windows'' operating
system. This is more than most companies would do.
I urge you to support this agreement and allow us to put this
matter to rest.
IF MERGEFIELD PARA4 1/2 PARA4+<> ......
Sincerely,
Edward Votypka
MTC-00028408
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 3:04pm
Subject: Microsoft Settlement
Good Day:
Short and simple, I am a consumer. A consumer who has been
harmed by Microsoft's monopoly in the form of inflated prices,
lack of software choice and shoddy software produced by Microsoft. I
join with the top Consumer ogranizations in America (Ralph Nader's
Consumer Project on Technology, The Consumer Federation of America
and Consumer's Union) in asking you to reject the proposed
settlement as it does little to preserve real competition going
forward and does nothing to punish Microsoft for their illegal past
behaviors. Thank you for your consideration.
Respectfully,
Michael A. Crist
5416 Palos Verdes Blvd.
Torrance, CA 90505
[email protected]
MTC-00028409
From: Lauren Kosty
To: Microsoft ATR
Date: 1/28/02 3:06pm
Subject: Microsoftsettlement
To Whom it May Concern,
I think that Microsoft should not be allowed to abuse the
antitrust laws or force consumers to use their own internet browser
because there must be competition in the market, otherwise Micosoft
will not be motivated to produce a product that is of good quality.
It is unfair to take away the consumers right to choose the product
they prefer and it is not beneficial to our countries economy to
lose its competative edge by permitting monopolistic companies to
exist.
sincerely,
Lauren Kosty
[email protected]
MTC-00028410
From: Paul Svitenko
To: Microsoft ATR
Date: 1/28/02 3:06pm
Subject: Microsoft Settlement
Dear DOJ,
From time to time, I hate Microsoft and its product.
At all times I hate this antitrust effort. It is unnecessary.
Costly. Hypocritical. History is replete with antitrust prosecutions
that have wreaked nothing but havok. Doing something to end a
government-granted monopoly is one thing. Attacking the most
successful company of our day is another. They got to the top by
offering what the public wanted. We paid them all the way.
Let those who have the skills and honest desire punish Mr. Gates
and company in the market place. There are many out there. If
Microsoft lets down even for a minute, they will suffer ?
alternatives abound, as the Apple, Linux, and AOL-Netscape-Lindows
possibilities show.
In the end, it is not Microsoft that beat AOL, Sun, Apple and
the rest of them ? it was I and other consumers who chose a cheap,
relatively reliable, available standard in computing. The rest
remind me of Carl Marx ? riding on the coattails of their betters
and trying to bite the hand that has enabled them to feed
themselves. It's disgusting, and you should find something more
constructive to do with my tax dollars.
Best regards,
Paul L. Svitenko, Esq.
MTC-00028411
From: Don Carlson
To: Microsoft ATR
Date: 1/28/02 3:07pm
Subject: Microsoft Settlement
Please get this settled and move on with life. Don't cave in to
the demands of inferior companies and their whining senators etc.
Show me a better product at a better price and I will buy it. Until
then, leave Microsoft alone and let's get on with serious business.
Thank you for your consideration.
Sincerely, Don Carlson
PO Box 867
Winthrop, WA 98862
509-;996-;3631
MTC-00028412
From: K T
To: Microsoft ATR
Date: 1/28/02 3:09pm
[[Page 28273]]
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am in opposition to the Proposed Final Judgment in the
Microsoft case. Undoubtedly, MS continues to violate business
practices. The Proposed Final Judgment does not punish Microsoft for
its past violations to the anti-trust laws. Microsoft is guilty of
breaking several anti-trust laws. Under the final settlement,
Microsoft is permitted to retain most if not all profits gained
through their illicit activities. Subsequently, the PFJ will not
compensate parties injured or harmed through Microsofts egregious
misdeeds.
In addition, the PFJ will not take into account all Microsoft
gains made through its illegal maneuverings. With all due respect,
the final settlement is basically acknowledging the acceptance of
Microsofts anti-competitive behavior. What kind of message does this
send out to the public? I can assure you that the message is clear
and simple.
The PFJ encourages big corporations to engage in monopolistic
and predatory conduct, which in turn is detrimental to the
technology industry at large. With all due respect your honor, I am
outraged at such a preposterous proposal that only helps Microsoft
to remain intact and continue with its unethical practices. In
conclusion I submit to you my objection to this Proposed Final
Judgment.
Respectfully,
Karen Thurman
311 Estes Ct.
Travis Airforce Base 94535
MTC-00028413
From: Mark Sutherland
To: Microsoft
ATR,[email protected]@inetgw
Date: 1/28/02 3:10pm
Subject: Microsoft anti-trust
Please don't let Microsoft get away with it. Microsoft would
have been just fine if not for their cut throat business practices.
Releasing a OS that compeats fairly on the market would mean that
microsft would have about 50-;60% market share. But when a
hardware manufacturer has to sign an agreement to only sell
computers with only the one type of operating system it hurts all of
us. Competition is what makes our capitalist economy go round and
when the OS manufacturer stops that from happening we become little
more than a communist commune. Their control of the market has been
unmeasurable and this control has damaged the way we live, the way
we learn, and the way we work. Microsofts Monopoly has cost
businesses in the US alone Billions in dollars that could have been
paid back to stock holders or be used to pay off loans and help the
economy instead of hurting it. Don't let Microsoft screw us all
again make them work with binders on for awhile and see if they can
deal with some of their own medicine.
Mark Sutherland
548-;59-;5236
MTC-00028414
From: Jeryl
To: Microsoft ATR
Date: 1/28/02 3:12pm
Subject: Microsoft Settlement
Don't let Microsoft get away with their tactics any longer! I do
not want to see a world dominated by a company that seeks to control
all flows of information, whether in the office, school, home or on
the net.
A concerned citizen
J Barnett
Norfolk VA
MTC-00028415
From: Tom Stevenson
To: Microsoft ATR
Date: 1/28/02 3:13pm
Subject: Microsoft Settlement
MTC-00028416
From: Gordon Ruby
To: Microsoft ATR
Date: 1/28/02 3:12pm
Subject: Microsoft Settlement
I don?t believe that the proposed settlement in the Microsoft
anti trust case is fair in any way. I am a computer technician that
has been working with Microsoft software for more that 12 years. I
have repeatedly seen Microsoft use its monopolistic advantage to
destroy the competition. The proposed settlement only helps
Microsoft conquer one of the last areas that it doesn?t have a
monopoly: the education system. I find this to be absurd. Also there
are so many loop holes in the proposed settlement that the
punishment will be less than a slap on the wrist.
Gordon Ruby
River City Technical Services
10534 NE Beech St.
Portland, or 97220
503-;262-;1930
MTC-00028417
From: Rob Ellis
To: Microsoft ATR
Date: 1/28/02 3:12pm
Subject: Microsoft Settlement
Renata B. Hesse Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
A. Robert Ellis
88 College Road W
Princeton, NJ 08544
To the Court:
As a citizen, a student, a programmer, and a consumer, I would
like to comment on the anti-trust case against Microsoft, as allowed
by the Tunney Act.
I feel that the proposed settlement with Microsoft does not do
enough to punish the company for past anti-competitive actions, nor
is it specific enough to ensure that future incidents will not
occur. For details, please see the statement made by Dan Kegel and
others, which has been, or will be submitted. I agree entirely with
their comments.
I hope that a stronger, more detailed agreement can be reached
that will resolve current complaints, and protect businesses,
programmers, and consumers in the future. Thank you for your time.
Sincerely,
Arthur Robert Ellis
MTC-00028418
From: McDaniel-Neff, Clifton
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 3:12pm
Subject: Microsoft Settlement
I am thoroughly opposed to the settlement that has been reached
between the Justice Department and Microsoft in the Antitrust case.
Microsoft is, without a doubt, a monopoly that has abused its power
and will continue to do so unless it is reigned in by the
government. Microsoft corp. does not compete on the merit or value
of its software, but by using unfair tactics to get where it wants.
Any settlement, etc. in this case should set very clear rules
that Microsoft must adhere to. It should also set forth punishments
for past and/or future abusive action. Please do not allow this
settlement.
Clifton McDaniel-Neff
Visual Information Specialist
For Your Information, Inc.
Phone: (202) 267-;2818
Email: [email protected]
MTC-00028419
From: E T
To: Microsoft ATR
Date: 1/28/02 3:14pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally-
Please consider my disapproval at the Proposed Final Judgment.
Consider the true facts in the matter and judge accordingly.
From my understanding a Final Settlement has been reached
between the two parties. However the Proposed Final Judgment will
overturn the evidence found by the U.S. Court of Appeals indicting
Microsoft in violation of antitrust laws.
The proposed settlement has the Justice Department withdrawing
their charges against MS. In fact, based on the assessments made on
the proposal, Microsoft will be cleared of all wrongdoing in the
matter. How can this be?
There are several glaring flaws in the PFJ. However, non-so more
apparent than allowing an absentee landlord to govern Microsoft.
With all due respect, the final settlement provides no security to
restrict MS from breaking any laws in the future. In my humble yet
accurate opinion, the future governing body, implementing certain
rules or regulations and forcing MS to adhere by them, will not be
stringent nor forceful enough to make any dramatic changes.
Similarly, I am not convinced that these stiff penalties applied to
MS will ensure the security and future growth of other companies,
A whole new framework of laws must be established to justly
punish MS. The Proposed Final Judgment abstains from such
justification and order. Again I submit my objection to the stated
Proposed Final Judgment.
Sincerely,
Eduardo Tualla
Sacramento, CA
MTC-00028420
From: Marty Irwin
To: Microsoft ATR
Date: 1/28/02 3:14pm
[[Page 28274]]
Subject: Microsoft Settlement
Please accept my attached letter of response regarding the
Microsoft Settlement with the Department of Justice. Thank You !
Marty Irwin Send and receive Hotmail on your mobile device: http://
mobile.msn.com
1116 NW 52nd Street
Vancouver, WA 98663
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing today regarding the settlement that was reached
between the Department of Justice and the Microsoft Corporation in
their three year long antitrust battle. I believe that this case has
been propagated for far too long and the money and resources
expended on both sides of this dispute could have been put to better
use elsewhere.
The terms of this settlement are fair. Microsoft has agreed to
design all future versions of its Windows operating system to work
in conjunction with the products of its competitors. The company
will also cease any action that may be considered retaliatory.
Adherence to this settlement will also be ensured by a government
appointed oversight committee which will monitor Microsoft. It is
clear to me that this settlement addresses the issues that were
brought in this suit and then some. The reluctance of some people to
accept these terms is proof that they are more concerned with
perpetuating their own political agendas than they are with finding
a suitable solution to this problem.
Thank you for supporting this settlement and for allowing me to
voice my opinion on this issue.
Sincerely,
Marty Irwin
MTC-00028421
From: Matthew Stoecker
To: Microsoft ATR
Date: 1/28/02 3:15pm
Subject: I urge acceptance of the proposed settlement (EOM)
MTC-00028422
From: carmar
To: Microsoft ATR
Date: 1/28/02 3:15pm
Subject: Support settlement of Microsoft case
Dear Atty. General Ashcroft:
I am writing to request your support of the settlement Microsoft
has offered and the Department of Justice has agreed to. There will
always be rivals and special interests who object. It is time to put
closure and I trust you will support the settlement of this case.
Sincerely,
Carolyn Palmquist
Havana, Florida
MTC-00028424
From: Dave
To: Microsoft ATR
Date: 1/28/02 3:14pm
Subject: Microsoft Settlement
I am writing in the hope that my thoughts and concerns may be
heard by the court of Judge Colleen Kotar-Kelley. I'll be brief. The
settlement, as proposed by the DOJ, the accepting states and
Microsoft is fair to all concerned and the general in public. This
case has only minimally been about consumer protection from a
monopoly and has largely been about protecting the interests of a
very few, large corporate and government interests to make sure that
their brand of technology isn't usurped by vendors like Microsoft
who work to find unique technologies and incorporate them into a
coherent, useable form for large numbers of people to benefit from
the technologies use. In regard to this competition, the proposed
settlement is very fair, for two of it's primary stipulations, in my
mind. The first is that OEM's are assured that Microsoft can not
take retribution on the OEM's if the OEM's decide they find one
technology more compelling than a Microsoft technology. It also
provides the means for Microsoft's competitors to find out about
underlying interfaces into it's applications and operating systems,
by allowing the sharing of specific technology information,
but which does so, in a controlled atmosphere that protects
Microsoft's rights to it's intellectual property.
This is the most important reason to accept this proposal. It
DOES protect the intellectual capital of this company without the
wholesale rape and plunder of it's most important technological
secrets. In a communist/socialist system, one would expect that the
details of how a successful business is operated would be viewed in
extreme detail without any regard for the rights of those
individuals who have worked so hard to make that company a success.
But this is America. Organizations and individuals in our society
have the right to protect and keep private the fruits of their hard
work and share those fruits with others in a way that rewards those
who worked to create those fruits. Microsoft's competitors,
including the states who are objecting to this settlement (these
states also have compelling interests on the behalf of Microsoft's
competitors in my humble opinion) care not about competition, but
how to get as much intellectual property as possible and eliminate
Microsoft as a threat to their very profitable franchises which are
far from affordable for the average consumer (which is what they
keep telling us this is all about, that this is for Jane and Joe
consumer).
Finally, I am not surprised, even in the light of all the stuff
that has gone on at ENRON, that the loss of billions of dollars from
investor funds (holding Microsoft stock) is not a big deal to our
government leaders because of all the money that state and federal
representatives hope to acquire from a major shake up of Microsoft,
and because their corporate benefactors (IBM, SUN, AOL/TimeWarner,
et. al) will benefit from a coup in obtaining Microsoft's
intellectual property. ENRON is a big deal, because so many
government leaders had there hands involved in that organization in
so many ways. Microsoft is, on the other hand, not a big deal to the
government and needs to be done away with, because rather than spend
a lot of time throwing money at congressional leaders and lobbying
congress, Microsoft went about it's business. Microsoft did do and
still does an excellent job of finding the best and the brightest
talent to become one of the best marketing and technology companies
in the world. If you really want to find out about competition, then
why don't you go out and compare a Microsoft solution, to that of
one of it's competitors (IBM, SUN, AOL/TimeWarner, Linux or other
OS/Application variants) and evaluate on all facets (up front costs,
consulting needs, ongoing support, etc), and you will see that if
more draconian remedies are pushed upon Microsoft that the high
prices already charged by these Microsoft competitors will do
everything except become more competitive.
Thank you for your time and consideration!
David J. Renner
MTC-00028425
From: W. Curtiss Priest
To: Microsoft ATR
Date: 1/28/02 3:17pm
Subject: Proposed Microsoft settlement: woefully insufficient
Dear Justice Department,
As a software innovator and holder of several software patents,
I have first hand knowledge of how extremely brutal, unfair and
bullying Microsoft is to others in the industry. I was involved for
five years in negotiation, arbitration and potential legal action
against Microsoft which only caused Microsoft to spend incredible
resources to deny me and Humanic Systems any just and due
compensation for our innovative work.
In my opinion, as President of Humanic Systems, a company that
was (above) abused by Microsoft regarding our intellectual property
for significant components of Microsoft Outlook, the proposed remedy
is extremely inadequate:
1. It does not provide substantial redress for the prior losses
caused by MS on others
2. Secrecy provisions undermind the ability to obtain API
information and will systematically be used by MS, in my opinion, to
continue its monopoly stranglehold
3. There are no structural remedies, and, without those, the
``fascist'' mindset of Ballmer and Gates will continue to
dominate the thinking of each and every employee
4. Microsoft's stated opinions about various forms of open
software, being a ``cancer'' undermines the ability for
consumers to get the maximum benefit for the least cost This
position, alone, demonstrates that they want ``all the
marbles'' and it is a ``winner take all'' game
Consider, for example, a PBS documentary about extreme competition
as taught within the Gates family as Mr. Gates grew up This person
does not know the word cooperation, and, without extremely directive
measures, will never show cooperation to the rest of the software
industry that is slowly dying under his ruthless hand.
Very truly yours,
Dr. W. Curtiss Priest
President, Humanic Systems
Director, Center for Information, Technology & Society
Member, American Economics Association
Prior, Principal Research Associate, MIT
Author, --;Technological Innovation for a Dynamic
Economy--;, 1980 (Pergamon Press)
--;Risks, Concerns and Social Legislation--;, 1988
(Westview Press)
[[Page 28275]]
--;W. Curtiss Priest, Director, CITS
Center for Information, Technology & Society
466 Pleasant St., Melrose, MA 02176
Voice: 781-;662-;4044
[email protected]
Fax: 781-;662-;6882 WWW: http://Cybertrails.org
MTC-00028426
From: Rick Balian
To: Microsoft ATR
Date: 1/28/02 2:18pm
Subject: Microsoft settlement
To Whom It May Concern,
I hope Microsoft does not get off with a warning or a fine.
Warnings have been disregarded in the past. And a fine will only be
earned back by higher prices on its products. I think for Microsoft
to curtail its illegal domination there have to be specific, strict
instructions as to what it may and may not do. Windows XP is even
more bundled with Microsoft products than previous versions. How did
that happen; why was that product allowed to be shipped? Microsoft
does not play well with others and must be severely restricted in
its drive to curtail and bully competition, ignore industry
standards and push through its own proprietary standards and hamper
innovation.
Sincerely,
Rick Balian --;
MTC-00028427
From: Evelyn Kessler
To: Microsoft ATR
Date: 1/28/02 3:18pm
Subject: Microsoft Settlement
In my opinion, Microsoft's proposed settlement to the law suit
is a fair solution to ending this long, ongoing fight by competitors
to try to bring Microsoft its knees. The willingness of nine states
to accept the settlement clearly demonstrates that it is fair and
reasonable. But nothing will ever be enough ``punishment''
for those states who want to damage Microsoft.
I urge the DOJ to recommend acceptance of the settlement
proposal. Allow Microsoft, along with its new awareness of business
practices, to continue building great software and services for
users around the world.
Evelyn Kessler
MTC-00028428
From: Leon A Wilson
To: Microsoft ATR
Date: 1/28/02 3:18pm
Subject: DOJ: AOL vs. MSFT
MTC-00028429
From: Anatoly Hiller
To: Microsoft ATR
Date: 1/28/02 3:15pm
Subject: Microsoft Settlement
The PFJ should terminate Microsoft's illegal monopoly. The PFJ
should deny to Microsoft the profits of its past behavior and
penalize them.
The PFJ should prevent any future anticompetitive activity.
Anatoly Hiller (650) 473-;3617
MTC-00028430
From: Adams, Michele
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 3:19pm
Subject: Microsoft Settlement
Attached please find letter in support of the Microsoft
settlement.
Michele M. Adams
GTECH Corporation
55 Technology Way
West Greenwich, RI 02817
email: [email protected]
Ph: 401-;392-;5556
Fx: 401-;392-;4808
MTC-00028430--;0001
20 Pepin Street, Unit 4
West Warwick, RI 02893
January 28, 2002
VIA FACSIMILE (202-;307-;1454) & E-MAIL
([email protected])
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
RE: Microsoft Settlement
Dear Attorney General Ashcroft:
I am sending this public comment via email to record my support
for settlement of the court case against Microsoft Corporation. I
seek your continuing support in the effort to persuade the judge
that the settlement will be in the better public interest of the
United States than the alternative of costly and unfocused,
continued litigation.
The settlement, whatever its effects on Microsoft Corporation,
will be quite beneficial to the community that uses personal
computers, PC makers will be able to re-configure the desktop
package of programs that come with Microsoft?? Windows, or even to
combine making PCs with operating systems from Microsoft and other
software makers, with the ending of exclusive distribution and
promotion terms in contracts, These and other changes will bring
greater flexibility and opportunity for experimentation to the PC
world, If Microsoft wants to continue to lead the industry it will
have to come up with new and better innovations faster than it has
in the past.
Please continue to support the settlement. Thank you.
Respectfully yours,
Michele Adams Pizzitola
MTC-00028431
From: Rose, David
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 3:22pm
Subject: personal opinion of MS settlement
To whom it may concern.
I am very concerned regarding a quick and non-remedying
settlement against Microsoft. I feel as thought I am a pet of this
particular corporation ... I am only allowed to have what they will
allow me to have. Not only are my software choices very limited, but
even some of those competing choices are taken away from me because
of the reasons which found Microsoft guilty of being an illegal
monopoly.
One thing I do not understand is why Microsoft has not been sued
by corporations using their software. There are many software
``bugs'' in their past software--;Office 95, 97 2000,
etc. Windows 95, 98, 98 second edition, millennium, etc. If I am
buying a license to use software, and not the software itself, it
stands to reason that I would expect the licensor to keep fixing the
``bugs'' in software for a specified amount of time; and
that new releases are just software with new features.
However, there are many unresolved software ``bugs''
which are never fixed. With no competing software, my only recourse
is to buy a new license for a different version of software. This
may be an expensive remedy which I should not have to afford.
Also, I have heard that major resellers MUST sell Microsoft
software on their computers. From Dell, Gateway, etc I can not get a
computer only. I must purchase an operating system. But, on a
previous computer that will no longer be used, I already paid for an
operating system. If that computer is no longer to be used, or to be
used with Linux, Unix, FreeBSD, Be, or some other ``ground
roots'' operating system, why must I pay again for a software
license when one is already freely available for use?
I believe I have been wronged. I have been duped out of my hard-
earned money. I insist that this will not happen again! I want the
party found guilty by a jury to be considered guilty by the judicial
system!
S. David Rose
Stamford, CT, US
mailto:[email protected]
This e-mail and any attachments may be confidential or legally
privileged. If you received this message in error or are not the
intended recipient, you should destroy the e-mail message and any
attachments or copies, and you are prohibited from retaining,
distributing, disclosing or using any information contained herein.
Please inform us of the erroneous delivery by return e-mail.
Thank you for your cooperation.
MTC-00028432
From: Linda Charlie Puls
To: Microsoft ATR
Date: 1/28/02 3:21pm
Subject: Microsof Settlement
PO Box 639
Shoreham, NY 11786
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I support the settlement between your office and Microsoft in
the ongoing antitrust trial. I believe that Microsoft has the right
to free enterprise, and the terms it will comply with to end the
case are fair to its competitors. Microsoft's concessions in the
settlement will ensure that their rivals have more opportunities to
gain market share. Making new program removal features available in
Windows XP and giving computer makers new freedoms to integrate non-
Microsoft programs into Windows will ensure that other companies who
make good products will have a greater chance of distributing them
to the public.
Please settle the Microsoft case, and be mindful of their right
to innovate and reach as many people as possible with their
products.
Sincerely,
Linda J. O'Neill -Puls
Linda Puls
[[Page 28276]]
MTC-00028433
From: Gary Robson
To: Microsoft ATR
Date: 1/28/02 3:22pm
Subject: Microsoft Settlement
I believe that the findings in the Microsoft antitrust case were
accurate and reasonably stated, but that the remedies do not go far
enough to prevent recurrence or to compensate consumers and
competitors for the damage done by Microsoft.
When I first began using computers with Microsoft operating
systems, the OS represented around 1% of the total cost of the
computer (an IBM PC with MS-DOS). Now, I can buy a computer for
under $1,000 and a copy of MS Windows will cost over $100. They've
gone from 1% to 10%. The vast amounts of profit Microsoft is raking
in from their operating systems monopoly is funding advertising,
price cutting, and other methods of invading other profit centers,
including not only middleware, but video games, the ISP/ASP market
(through MSN), and many less visible incursions through acquisitions
and partnerships.
Breaking up Microsoft is the only realistic solution.
Gary D. Robson
1284 Highway 72 North
P.O. Box 9
Belfry, MT 59008-;0009
406/664-;3067 (home)
406/446-;2742 (work)
[email protected] http://www.robson.org/gary/
MTC-00028434
From: David Martin
To: Microsoft ATR
Date: 1/28/02 3:22pm
Subject: Microsoft Settlement
To: [email protected]
Subject: Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200 Washington, DC 20530-;0001
Under the Tunney Act, I wish to comment on the proposed
Microsoft settlement. In my opinion, the Proposed Final Judgement
(PFJ) does not protect the interests of the American public, and
does not address the anti-competitive practices Microsoft was found
guilty of. In particlular, I would like to make the following
points:
The PFJ doesn't take into account Windows-compatible competing
operating systems The PFJ Contains Misleading and Overly Narrow
Definitions and Provisions The PFJ Fails to Prohibit Anticompetitive
License Terms currently used by Microsoft The PFJ Fails to Prohibit
Intentional Incompatibilities Historically Used by Microsoft The PFJ
Fails to Prohibit Anticompetitive Practices Towards OEMs The PFJ as
currently written appears to lack an effective enforcement mechanism
As a professional working in the Computer Software industry, I have
personally observed the effect Microsofts monopoly power has had. It
has stifled innovation, blocked investment in promising competitive
technologies, and severely distorted the efficiency of the software
marketplace. Today, no one knows what the economic value of a PC
operating system is, or a web browser, or an email client.
Microsofts monopoly has blocked the free flow of information and
capital that is essential to a healthy market. The decision by the
Justice Department to capitulate to Microsoft is a gross injustice
to the average consumer of computer software.
In summary, the Proposed Final Judgment, as written, allows and
encourages significant anticompetitive practices to continue, would
delay the emergence of competing Windows-compatible operating
systems, and is therefore not in the public interest. It should not
be adopted without substantial revision to address these problems.
Sincerely,
David M. Martin
74 Shelters Rd.
Groton, Massachusetts
[email protected]
MTC-00028435
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:22pm
Subject: Mircosoft settlement
MTC-00028436
From: Tom Hayes
To: Microsoft ATR
Date: 1/28/02 3:25pm
Subject: Microsoft Settlement
My Opinion/Vote: Settlement needs to be completed and minimal
penalties, if any, need to assessed and allow Microsoft freedom to
be innovative, creative and competitive and survive in the world
competitive economy and free market. At the rate the legal
proceeding are going, throwing this case is completely an option.
I am pro-settlement with Microsoft, DoJ and the nine states. The
issues, who and why's are not reflective of the general populating
and I am convinced this is being driven by Sun, IBM and AOL/Netscape
and several other competitors who lack product creativity and
success. After all the legal battles and information about harming
consumers, at the end, you ask the general population and consumers
thru the Tunney Act. If this was really truly driven by the
consumers, I am pretty sure we would be hearing from them more then
Sun, IBM, and AOL/Netscape funded legal battles.
Settlement: Microsoft, economy, consumers and innovative
productivity has suffered enough. There should minimal penalties
against Microsoft and many of the practices in question are no
longer in place or even applicable. Companies need to be innovative,
creative and competitive to survive in the world economy and free
market.
Issues:
*These legal fees are costing the US and Microsoft many dollars.
I see where Microsoft took a finical cost, $660 Million dollars
battling these legal issues, but where/what are the funds fueling
the DoJ and nine states and the other previous other nine states? My
income, state and local tax dollars and maybe some selective
corporate sponsorship? I would challenge opposing corporate
sponsorship in the court of law on a case slated on behalf of the
people.
*Other legal issues related to suing Microsoft i.e. the Class-
Action Suit http://www.microsoft.com/presspass/Press/2002/Jan02/
01-;11ClassActionDe cisionPR.asp and the resent AOL/Netscape
suit http://www.microsoft.com/freedomtoinnovate/info/
news--;01--;22--;02.asp *Where has the end consumer been
harmed by Microsoft IE browser, in the scope of this case? For that
matter Microsoft's technology harming consumers? And one should look
back in history and see where technology has come from and improved
consumers, productivity and world wide economy.
Other 100 Class-Act Suite, and suggested settlement:
``Under the proposed settlement, Microsoft had agreed to
provide more than $1 billion in cash, training, support and software
to help make computer technology more accessible to public schools
serving nearly 7 million of America's most economically
disadvantaged children.'' Would have helped those schools and
prepared those students for the current real world computing skills.
But no, Apple/Mac's has the loin-share of that market and go figure
they are training students on non-Microsoft technology in
preparation their profitable careers.
AOL/Netscape Suit:
Who killed Netscape? Well, AOL purchased Netscape for $10
billion dollars in the midst of the DoJ trial, even after hearing
concrete evidence that IE's success in the market was based on
merit, not market share. And in the middle of a so called browser
war, sound like a poor business decision gone bad and now want the
sue.
Regards,
Tom Hayes
425-;442-;8322
MTC-00028437
From: Tim Pawlenty
To: Microsoft ATR
Date: 1/28/02 3:25pm
Subject: RE: Microsoft lawsuit settlement
January 28, 2002
Ms. Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Heese:
I applaud the leadership displayed by the Department of Justice
and the nine Attorneys General for developing the proposed Microsoft
settlement agreement that balances the protection of consumer
interests and the competitive process. I believe that this
settlement will preserve Microsoft's ability to innovate and engage
in normal procompetitive activities, critical during our nation's
current economic recession. At the same time, the settlement is a
win for consumers, with its broad scope of prohibitions and
obligations imposed on Microsoft. It will certainly require
substantial changes in the way that Microsoft does business. It
imposes significant costs on the company and entails an
unprecedented degree of oversight. Furthermore, the agreement
strikes an appropriate balance within the technology industry,
providing opportunities and protections for firms
[[Page 28277]]
seeking to compete while allowing Microsoft to continue to innovate
and bring new technologies to market.
This reasonable settlement will help consumers, the industry,
and the economy to move forward.
Very truly yours,
Tim Pawlenty
Majority Leader
Minnesota House of Representatives
MTC-00028438
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:21pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user. T
his is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Annette Hall
5409 Highview Lane
Citrus Heights, CA 95610-;7405
MTC-00028439
From: Miles C
To: Microsoft ATR
Date: 1/28/02 3:26pm
Subject: opposed to settlement
From what I have read in the majority of trade publications is
that the consensus is that this is not a settlement that will
significantly benefit anyone other than Microsoft.
I hope that 9 states pursuing a separate path is enough to at
least give whomever might be in charge of this case that it this
case is strongly questionable. I would put forth the suggestion that
attorney generals in 9 states are also experts in the matters of
law, so even though 9 states have gone along with it the matter has
some serious issues. As near as I can tell, Microsoft is and will
remain a monopoly. They make the rules for their OS. They will also
use unfairly their considerable resources to enter in and dominate
any aspect of the software industry because there does not exist
another corporation who can print money like they can. The idea of
leveraging a monopoly is something that I don't think was adequately
explored.
I think that they have adopted the old Royal philosophy of don't
explain and don't apologize as much as possible. It works, most
people will go away if you deny anything long enough. They have
added to it with significant amounts of money in contributions
making the party line that much more difficult to dispute.
At this juncture, they seem to be trying to make new inroads
into people's lives such that they will control large portions of
commerce with the Internet by holding much of the information used
for marketing and purchasing. If the Department of Justice can have
its case split so cleanly at this juncture how much less of a chance
will there be an answer in the future when no doubt the political
pressure will likely be even greater because of greater profit?
I truly doubt that they are significantly changed from their
earlier tactics simply because those tactics worked and now no
longer are necessary rather than they are facing any punitive
measures. There will remain the fact that no one can develop for
their platform as easily as they can. They have the source code and
expertise in developing it that automatically gives them an
advantage in experience.
I honestly feel as though I was sold out as a consumer. I don't
doubt that any company that is developing in a field that MS looks
at as potentially profitable feels even worse knowing that they will
be acquired or destroyed as a force in that market through no
special ability of MS other than not having that market niche fund
its development. Office will help pay for Money, which will help pay
for Age of Empires, for instance. Please reconsider this settlement.
I truly believe that a diversified software industry will be much
better for us than a gigantic corporation kept healthy through
government intervention on its behalf.
Sincerely,
Miles Cannon
MTC-00028440
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:28pm
Subject: Microsoft Settlement
I wish to comment on the proposed Microsoft settlement. I agree
with the problems outlined in Dan Kegel's analysis posted on the web
at http://www.kegel.com/remedy/remedy2.html It is my opinion that
the current proposed settlement will NOT do enough to prevent
further anti-competitive practices by Microsoft, and to restore
consumer choice to the software market.
Robert A. Glenn
360 W 22nd St #11K
New York, NY 10011
MTC-00028442
From: Bill Keough
To: Microsoft ATR
Date: 1/28/02 3:28pm
Subject: Microsoft Settlement
The recent history of antitrust has been a jihad by the
Department of Justice against a pantheon of American industry.
Antitrust cases against IBM, Intel and Microsoft seemed to have been
designed to wreck the high tech industry. Al-Qaida could not have
designed a more devious program to destroy the U.S. economy.
Hyperbole? The current recession was started or at least given a
boost by the tepped up legal action against Microsoft and the
consequent fall of it's stock. Hundreds of billions of dollars have
been lost.
This suit has unleashed a mob of whining moochers angling for a
chunk of cash or control of Microsoft. If this lawsuit is upheld it
will result in the virtual destruction of the company, maybe not at
once, but surely in a drawn out death by fragmentation and
bankruptcy. No more operating systems, no more Web browsers, no more
games, no more office software, no more jobs, no more nothing.
Contrast the way Microsoft does business with the way the Post
Office, a real monopoly, does business. Can Microsoft prevent the
entry of competitors into its realm of business? No it can't, but
the Post Office routinely does this the only way possible: by the
use of force or the threat of force. There is no other way to bar
competition than to resort to force. Entry in a field of business
however does not ensure success. Your competitors do not have to
make allowances for your weaknesses by tailoring their business
practices so you can survive. Everything is permitted except force
or fraud. As Bill Gates has said many times, no one has been forced
to do business with them. If their partners do not like the terms
Microsoft sets they are always free to leave. Microsoft should not
be compelled to open up its products to competitors. Windows and
Internet Explorer are their property to dispose of as they see fit.
This is the essence of the case, or lack of a case, against
Microsoft. Envious competitors complain about Microsoft's business
practices, which they themselves routinely use. On a personal level,
I started with the Prodigy browser and then switched to AOL. Finally
when I bought a new computer I ended up with Internet Explorer. I
never had any trouble switching browsers and from a business point
of view it would not make sense to impede the installation of new
software. After all what would be the point of an operating system
that sabotaged certain programs? That Microsoft includes an internet
browser with windows does not mean you have to use it. Competing
browsers on CDs are so numerous they are regarded as junk mail. The
Department of Justice case against Microsoft is not just senseless
but in a recession and a time of war it is doubly destructive.
Reason and justice dictate that this case should be dismissed.
William B. Keough
Seattle, Washington
MTC-00028443
From: Bill Young
To: Microsoft ATR
Date: 1/28/02 3:28pm
Subject: Microsoft Settlement
To Whom It May Concern:
Many others have eloquently voiced their opposition to the
proposed settlement. I cannot hope to express the same concerns as
well in a brief email.
I am against the proposed settlement because I do not feel it
goes far enough in restricting the anti-competitive practices that
currently allow Microsoft to maintain a monopoly position in the
desktop operating systems market. Further examples of these
practices are evident in software releases subsequent to the court
findings, further
[[Page 28278]]
justifying the need for strong measures that cannot be circumvented
by Microsoft's interpretations of loose wording.
- signed--;
William J. Young
Ph.D., Computer Science
26069 Highway 72
Golden, CO 80403
CC:[email protected]@in
etgw
MTC-00028444
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 3:32pm
Subject: FW: Microsoft Settlement [CGEY Virus checked]
Thanks,
Gigi Burton
Critical Technologies Recruiter
425.990.6932 (Direct)
425.802.1232 (Cell)
425.990.6801 (Fax)
CapCom 9976898
http://www.usa.capgemini.com
Send to: [email protected]
My Opinion/Vote: Settlement needs to be completed and minimal
penalties, if any, need to assessed and allow Microsoft freedom to
be innovative, creative and competitive and survive in the world
competitive economy and free market. At the rate the legal
proceeding are going, throwing this case is completely an option.
I am pro-settlement with Microsoft, DoJ and the nine states. The
issues, who and why's are not reflective of the general populating
and I am convinced this is being driven by Sun, IBM and AOL/Netscape
and several other competitors who lack product creativity and
success. After all the legal battles and information about harming
consumers, at the end, you ask the general population and consumers
thru the Tunney Act. If this was really truly driven by the
consumers, I am pretty sure we would be hearing from them more then
Sun, IBM, and AOL/Netscape funded legal battles.
MTC-00028445
From: Susan Greenbach
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 3:41pm
Subject: Microsoft Settlement
Dear District Court Judge:
I am writing to you to as I am frustrated with the prosecution
of Microsoft. I am the Information Systems manager for our office
and deal with Computers and Servers daily. Streamlining computer
software and hardware can be the most difficult, time consuming and
costly expense for our company.
Compatibility and support are key. I appreciate that Microsoft
has helped immensely with this task. We don't need this process
mucked up by government intervention. I resent that the government
does not believe that I can decide for myself which software/
hardware is useful to me. I can't believe our government views
Microsoft as a threat, when after all it is Microsoft that has
brought the industry to where it is....on real earnings, not
``puffed-up'' .com hype. Don't forget the bubble bursting
for the .communists and all of their venture capital. Those bringing
suit are not individual consumers, but Microsoft's unsuccessful
competitors. Failed businesses must not be allowed to set the rules
for the markets in which they failed.
Protecting some businesses from others is a dangerous policy. I
want to see an America where success is embraced, not punished and
throttled! Bill Gates is a self-made man who has brought America,
the world, to new levels of progress. Microsoft has a fundamental
right to its property, and it is the governments job to protect this
right, not to take it away. Microsoft, should be lauded and left
alone to continue to develop and prosper so that, we the people, can
too.
Susan Greenbach
CC: `activism(a)moraldefense.com'
MTC-00028446
From: Dave Jorgensen
To: Microsoft ATR
Date: 1/28/02 3:36pm
Subject: Microsoft Settlement
Dear Sirs,
This is a follow-up to my e-mail from 11am this morning. My
earlier letter was intended for those handling the civil anti-trust
suit against Microsoft. This additional letter is in regards to the
federal anti-trust case. As a citizen of the United States of
America, and an employee in the High-Tech sector of our nations
economy, I feel compelled to write and voice my disagreement with
the proposed federal anti-trust settlement with Microsoft.
For the past two decades, I have watched again and again as
Microsoft leverages its monopoly position to wipe out what were once
healthy high-tech markets. While only a few of these cases have seen
a courtroom, and while some would disagree about whether Microsoft's
dominance in these instances has provided more pluses or minuses for
the end customer, one thing is painfully clear: Microsoft has now
been caught red-handed, showing the very worst of intentions, as
they abused their monopoly position to destroy competition and seize
control of the web browser market. What's more, Microsoft has shown
in court, in the press, and in the marketplace, that they do not
recognize their mistakes in this area. They are simply not capable
of the kind of introspection, conscience and respect required to
regulate themselves as a result of the findings of this case. As we
have seen throughout this long ordeal, Microsoft shows an arrogant
disrespect for the letter and spirit of the law; sometimes
manipulating technical evidence, other times violating the temporary
restrictions placed against them, all showing a clear pattern that
they are truly unrepentant in their actions. The currently proposed
settlement, which is basically that ``we won't do it
again'' is laughable under the existing circumstances. I urge
the Justice Department, The Court, The Judge, anyone else involved,
to reject the currently proposed federal case settlement, which is
merely a slap on the wrist (like so many slaps Microsoft has ignored
before) and insist on pursuing truly punitive, active remedies
against this company which is so wreckless in the marketplace and so
disrespectful of the courts and of the American people.
Short of breaking up the company (which I still think is
justified) certainly there should be, at the very least, some hefty
fines applied against Microsoft, and perhaps even a loss of property
rights (creating an open source library for) the various technology
pieces Microsoft has used for monopolistic anti-competitive
leverage, such as Microsoft Office, Microsoft Internet Explorer,
Windows 95/98/NT, and so on. For us to hesitate on doing this
because Microsoft is a ``flagship'' for the industry, or
because their products are now such established, fundamental tools
in our marketplace, really shows how entrenched and uncontrollable
Microsoft truly is.
Again, despite arguments of past or future behavior, at least in
this case the findings are clear. Microsoft has been caught abusing
its monopoly position in the worst of ways, to the intentional
detriment of the browser market. Microsoft has shown that it cannot
self-regulate, and that it usurps the court and the will of the
people at every opportunity. There has to be a more severe
consequence for such destructive actions and intent.
Thank you for your consideration in this matter,
David E. Jorgensen
350 Budd Ave. #E7
Campbell, California
95008, USA
e-mail: [email protected]
MTC-00028447
From: Wynn (038) Gail Williams
To: Microsoft ATR
Date: 1/28/02 3:43pm
Subject: Gail Williams
Gail Williams
P.O. Box 1693
Tahlequah, OK 74465-;1693
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am a proponent of free enterprise and believe that the
government's interference with Microsoft hover the last three years
has been appalling. How can our nation and economy grow if
politicians and lawmakers keep attacking business?
The antitrust lawsuit has been ridiculous and now that a
settlement has occurred I see that Microsoft is being forced to
grant broad new rights to computer makers to configure Windows so
that competitors can more easily promote their own products. They
are also forcing Microsoft to disclose for use by competitors
interfaces that are internal to Windows operating system products.
The terms of the settlement seem aimed at nothing more than to
give competition an edge it did not have before. Nevertheless, your
office has to finalize the settlement. Our economy cannot afford
further litigation against Microsoft. I hope your office does what
it can to deter the states still eager to sue.
Sincerely,
Gail Williams
cc: Senator Don Nickles
MTC-00028448
From: D T
To: Microsoft ATR
[[Page 28279]]
Date: 1/28/02 3:38pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
In relation to my objection to the final settlement in the MS
case, I want to point out several loopholes attributed to the
Proposed Final Judgment.
I am not in agreement to the oversight committee proposed by the
PFJ. With in the confines of the settlement this committee must
closely monitor and screen all activities by MS. This close scrutiny
insures MS complies with all restrictions entailed in the agreement.
A three man compliance team will oversee and insure that
Microsoft comply with the stated rules and regulations. Yet, this
three-man oversight committee will be composed of the following: one
appointee from the Justice Department, one appointee from Microsoft,
and another appointee chosen by the two existing members. In turn,
Microsoft will control half of the oversight team.
Also, in the likelihood of any enforcement proceeding, all
findings by the oversight committee will not be allowed into court.
The sole purpose of the committee is to inform the Justice
Department of all infractions by Microsoft. Subsequently the Justice
Depart will launch its own investigation into the matter and
commence litigation to halt all infractions. When all is said and
done, the oversight committee is just window dressing, who will not
strictly oversee Microsofts business moves?
In my opinion, the Proposed Final Judgment does not provide
appropriate restrictions against Microsoft. What reassurance do we
have against Microsofts illegal and illicit activities? I can assure
you that the Proposed Final Judgment does not effectively nor
sufficiently address the question. Subsequently, I again submit my
objection to the final settlement in the Microsoft case.
Sincerely,
Doray Tualla
Sacramento, CA
MTC-00028449
From: Mark Bohannon
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 3:25pm
Subject: Microsoft Settlement
Please find attached a copy of comments from the Software &
Information Industry Association (SIIA) on the proposed PFJ in the
case U.S. v Microsoft. Please do not hesitate to contact us if there
is an error in the transmission or if you are unable to open the
document. <>
A Message from:
Mark Bohannon
General Counsel and Vice President for Government Affairs
Software & Information Industry Association (SIIA)
1090 Vermont Avenue, NW 6th Floor
Washington, DC 20005
Direct Dial: (202) 789-;4471
Switchboard: (202) 289-SIIA (7442) x 1325
Fax: (202) 289-;7097
Internet: [email protected]
SIIA 2002 Annual Conference: Trends Shaping the Digital Economy
April 13-;16, 2002 San Diego, CA Hotel Del Coronado
http://www.siia.net/spring2002
CC:Ken Wasch,'Hilleboe Douglas''
MTC-00028450
From: David Grant
To: Microsoft ATR
Date: 1/28/02 3:40pm
Subject: Microsoft Settlement
I am writing to you today, giving official notice of my
objection to the current DOJ anti trust settlement with Microsoft.
As a small business owner and software developer I strongly urge
you to reconsider your settlement. Microsoft is a successful company
not because their products are superior in quality, but because Mr.
Gates and his associates are excellent salesman.
These salesman are selling the United States government into a
shitty deal. For years, Microsoft's operating system alone grew to
monopolistic power because of exclusive agreements with hardware
vendors that eliminated any chance other competitors in that market
had. The emergence of the Internet and the browser led to a weak but
understandable argument that Microsoft intended to use ``brute
force'' in the business world to eliminate its competitor.
While I am all for the American way, and all for free trade and
freedom of commerce, I believe along with many intelligent, educated
professionals that the American way is now threatened by this
settlement. This settlement will bind the United States government
to a monopoly that should not exist, a monopoly that already hinders
free trade and creativity. Being Microsoft Certified myself, I will
leave you with this thought; Microsoft builds software for the lazy
IT employee. While many people may be employed as IT professionals,
these IT people are short minded and lacking pertinent knowledge.
The arrogance this combination breeds; stupid people making good
money, establishes security risks.
At this point in time, the last thing the United States
government needs is arrogant uneducated individuals at the helm of
all the critical data in this country.
David M Grant
President
Busy Data LLC
MTC-00028451
From: Tom Groman
To: Microsoft ATR
Date: 1/28/02 3:37pm
Subject: Microsoft Settlement
Dear Sirs:
Please end the litigation against Micro Soft. What has been
agreed to is a fair settlement for all concerned.
Thank You,
Rev. & Mrs. Tom Groman
MTC-00028452
From: Sunshine
To: Microsoft ATR
Date: 1/28/02 3:35pm
Subject: Microsoft Settlement
7199 Bahne Road
Fairview, TN 37062
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
We wanted to write to you today to express our dismay over the
Microsoft antitrust dispute. As Americans, we feel that this suit is
contrary to the very ideals of free trade and capitalism that we
treasure in this nation. It is our opinion that punishing a company
or an individual for demonstrating the very cleverness and ingenuity
upon which we have built this nation is un-American.
Americans are unlike any other people in the world. It is our
goal to become a success; to become something more than our fathers
and grandfathers were; to start with nothing more than a good idea
and a diligent work ethic and end up a success. This is the American
dream, and it is this dream that is under attack in this suit.
This litigation is not a question of whether or not Microsoft
violated antitrust laws. It is a question of whether or not we, as
Americans, have the right to become successful without the
interference of the government. We are pleased that this heinous
suit has finally reached a conclusion that is satisfactory to all of
the parties involved. However, it is our fondest wish that none of
this unpleasant litigation had begun in the first place. Please keep
the government out of the private sector.
Thank you.
Sincerely,
Don Crohan
Gayle Crohan
MTC-00028453
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:41pm
Subject: Microsoft Settlement
Good Afternoon,
I certainly hope that you finally reach a settlement in this
case and let one of the finest entities in America get on with
business. Throughout my school years and all my years in busines, I
have never received greater value and more productive tools than
Microsoft software. MS Word and MS Excel are the envy of the
software world as is the MS Windows operating system in all its
versions. I am sure that all Microsoft's competitors are jealous;
however, they should not be allowed to use the courts t achieve that
which they cannot achieve through innovation. Sam Walton never
resorted to the courts to beat out Sears, J.C Penny, K-Mart and the
now defunct Ward's. He used innovation and fair pricing and we all
get better value for that. WalMart is now the largest corporation in
the world.
Judge Penfield Jackson was so biased in his handling of this
case that he should be removed from the bench. I thought that the
federal courts operated at a much higher standard but am sorry to
say they all don't.
Michael F. Bartley
3616 N. Knoxville Avenue
Peoria, IL 61603-;1017
MTC-00028454
From: R M
To: Microsoft ATR
Date: 1/28/02 3:41pm
Subject: Microsoft Settlement
[[Page 28280]]
Dear Judge Kollar-Kotally,
I oppose the proposed resolution in the MS case, better know as
the Proposed Final Judgment. Over and above the usual economic risks
presented by an unchecked monopolist--;rising prices and
monochromatic innovation the nations computer infrastructure will be
increasingly vulnerable to attack if a single software system
predominates.
Obviously I am referring to Microsoft. Suppose that 80 or
90percent of the world's grain supply came from a single variety of
corns. We would be faced with the unacceptable risk that some single
disease might wipe out an enormous portion of our food supply. In
the same respects translate that example over to the Microsoft
issue. Having only one kind of operating system or one kind of
browser would make it terribly easier for saboteurs to bring the
entire Internet to its knees. For one entity, such as Microsoft, to
control 80 to 90 percent of the market for PC operating systems,
Internet browsers, e-mail readers, and office productivity software
is clearly a significant security risk. To then allow that monopoly
to actively attempt to drive out its remaining competition would
hardly be in the public interest. Diversity is the key in producing
economic prosperity and improving the society as a whole. The PFJ
goes against allowing diversity to flourish. Therefore I object to
the Propose Final
Judgment.
Sincerely,
Reynold Mamon
179 River Pines Way
Vallejo, CA 94589 CC:
[email protected]@inetgw
MTC-00028455
From: Randolph S. Kahle
To: Microsoft ATR
Date: 1/28/02 3:45pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Randolph S. Kahle
6161 N Canon del Pajaro
Tucson, AZ 85750
28-January-2002
Dear Ms. Hesse:
I have worked in the computer industry for over 25 years. During
that time I have worked as a developer, a marketing/business
strategist, and as a consultant to large and small companies. I have
a degree from Rice University in software and hardware design and an
MBA from the Amos Tuck School of Business Administration at
Dartmouth College.
My work experience includes Hewlett-Packard as well as six years
as a marketing and business strategist at Microsoft working on
database and developer products. I have seen Microsoft from both the
inside and now, for the last ten years, from the outside.
As I am not an attorney, I cannot speak to the legal specifics
of the Proposed Final Settlement, however, I am qualified to speak
to the practical implications of the terms in the computer industry
as well as other industries and markets into which Microsoft may
enter.
COMMENTS IN GENERAL
As the computer industry moves towards a future, fully-
distributed, computing environment, it is vital to have an
environment which fosters and rewards innovation. While it may seem
a mature industry, we are still only at the early stages. To date,
there have been several waves of general innovation and
consolidation. Each wave brings cost reductions, creative ideas,
whole new companies and new technologies. After a wave, there has
been consolidation around standards and then the next wave appears.
These waves could be named the ``mainframe era'', the
``minicomputer era'', and the ``personal computer
era''. We are now leaving the ``personal computer
era'' and entering a new one centered on distributed computing
and information, the ``distributed computing era''. As
each era transitioned to the next, the companies and products of
each successive wave accommodated the past, while providing new
innovations. IBM anchored the mainframe era, Digital and Hewlett-
Packard emerged during the minicomputer era, and Microsoft, Dell,
Gateway, and others emerged during the personal computer era.
What is different about the current transition, is that a single
company, Microsoft, is attempting to leverage their monopolistic
power created in the personal computer era and their position in the
industry to define and control the next era.
COMMENTS ON CULTURE
I worked at Microsoft before Windows was a monopoly. What I
observed was a culture fixated on domination at all costs. While
Microsoft was growing, these actions and activities were not
illegal. After becoming a monopoly, they clearly are (and were found
to be so by the courts). What is important to note is that these
illegal behaviors stem from the culture of the company.
Because of this strong culture, I do not believe that any
external monitoring of internal operations would ever be successful
(e.g. the ``TC'' as proposed). Microsoft managers are
simply too smart, experienced, and aggressive to ever agree to
submitting to external pressures. This comes from the top, Bill
Gates himself. In my experience, I have never encountered a
discussion in which anyone at Microsoft ever thought that they were
in the wrong. This would never occur to anyone. This is a cultural
factor, an arrogance of doing no wrong. With this culture, it seems
extremely unlikely that Microsoft would be able to self-monitor or
even work with an external auditing agency.
REMEDIES
My first choice for a remedy is to break Microsoft up into
smaller competing entities. The reason for this is to attempt to
reshuffle the organization so that there could be cultural and
behavioral change. I petition the court to explore this remedy as
the best way to combat future violations by Microsoft.
If the court does not pursue a break-up of Microsoft, then I
strongly agree with many others, that there must be changes to and
additional provisions added to the Proposal Final Settlement. For
example, I fully support, and have sign Dan Kegel's open letter
(http://www.kegel.com/remedy/letter.html).
OPENNESS AND TRANSPARENCY
My second choice for a remedy is to force openness and
transparency in Microsoft's technology. Distributed computing
systems are very complex and can be very subtle. To help the court,
many other petitioners have listed specific technology disclosures
that will help create openness. I will add that, in a general way,
if Microsoft's technologies can be viewed by the industry and the
market as *components* rather than as a *whole*, then a good balance
may be struck between Microsoft's ability to innovate, and the
industry's ability to compete and develop both complementary
technology as well as competing technology. The tricky question is
this: ``Where are the boundaries between the components?''
A simple answer can be found by focusing on and leveraging the
up- coming pressures that will be felt as the distributed computing
era arrives. The answer I propose is simple, easily monitored and
enforced:
*Force Microsoft to fully disclose all wire-level
(binary) protocols used between independent computing devices. (This
include .Net protocols, SMB/NBT protocols for file sharing, and
others)
*Force Microsoft to disclose the APIs which they expect
other components to use as they access the wire-level protocols.
*Force Microsoft to fully disclose all file formats used
to store persistent information.
The reason these are good remedies relies on the following:
*The future direction of computing is toward small,
distributed computing devices. The economic and technological
pressures will force the definition of boundaries between
distributed components. This will be a constant pressure to
*increase* disclosure over time.
*It is easier to monitor and audit compliance at these
boundaries compared to other more abstract and more easily re-
defined boundaries. (Microsoft is a master at redefining boundaries
for their own benefit).
*These disclosures provide significant value to
competitors and innovators.
However, I must also point out that this is only a first step.
This describes the technological boundaries and requirements. The
Settlement must also address the legal issues such as Microsoft's
attempt to prevent open-source software from running on Windows, and
other licensing and cross-tie issues. I will leave these issues to
the legal experts.
Violation of the Settlement must bring with it a powerful and
costly punishment. I propose that if Microsoft violates the
provisions of the Settlement that they be forced to place any
software or system found to be in violation or associated with a
violation into the general domain through an open-source license.
This, more than any financial penalty, would be a real deterrent.
Regards,
Randolph S. Kahle
Tucson, AZ
MTC-00028456
From: Judy Quandt
[[Page 28281]]
To: Microsoft ATR
Date: 1/28/02 3:43pm
Subject: Microsoft Settlement
MTC-00028456--;0001
70 Konci Terrace
Lake George, NY 12845-;4101
January 24,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
The settlement with Microsoft is in the best interests of the
public and the economy. It not only will restore fair competition
but also prevent future antitrust violations. But most importantly,
the agreement will allow the technology industry to move forward
with developing new products, rather than further burdening it with
government lawsuits. The settlement has imposed many restrictions on
Microsoft. For example, Microsoft has agreed not to enter into any
agreements with any third party to promote any Windows technology
exclusively. Additionally, Microsoft has agreed to a technical
committee that will monitor the company's compliance with the
settlement. Furthermore, Microsoft has agreed to design future
versions of Windows to make it easier for computer makers and
consumers to promote non-Microsoft software within Windows. Clearly,
these changes will benefit both consumers and the economy.
The most impressive part of this settlement is that it includes
matters that were not even at issue in the lawsuit. Enough is
enough. Let's stop wasting money and time on unnecessary litigation.
Sincerely,
Judith Quandt
MTC-00028457
From: M M
To: Microsoft ATR
Date: 1/28/02 3:44pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I oppose the Proposed Final Judgment in relations to the
Microsoft case. As one can plainly see, Microsoft continues to
violate business practices. The Proposed Final Judgment does not
punish Microsoft for its past violations to the anti-trust laws.
Based on supporting evidence found by the Court of Appeals,
Microsoft is guilty of breaking several anti-trust laws. Under the
final settlement, Microsoft is permitted to retain most if not all
profits gained through their illicit activities. Subsequently, the
PFJ will not compensate parties injured or harmed through Microsofts
egregious misdeeds. In addition, the PFJ will not take into account
all Microsoft gains made through its illegal maneuverings. With all
due respect, the final settlement is basically acknowledging the
acceptance of Microsofts anti-competitive behavior. What kind of
message does this send out to the public? I can assure you that the
message is clear and simple. The PFJ encourages big corporations to
engage in monopolistic and predatory conduct, which in turn is
detrimental to the technology industry at large. With all due
respect your honor, I am outraged at such a preposterous proposal
that only helps Microsoft to remain intact and continue with its
unethical practices. In conclusion I submit to you my objection to
this Proposed Final Judgment.
Best Regards,
Mylene Mamon
179 River Pines Way
Vallejo, CA 94589
CC:
[email protected]@inetgw
MTC-00028458
From: Norwood Catron
To: Microsoft ATR
Date: 1/28/02 3:45pm
Subject: Microsoft Settlement
I am an IT professional, specializing in providing Microsoft
solutions for small to mid-size businesses. I've worked in the field
for four years now, and have used Microsoft operating systems and
applications for fifteen years. I've invested considerable time and
financial resources in becoming an expert with Microsoft products
and have obtained several Microsoft specific certifications. My
continued livelihood will continue to depend on Microsoft's
dominance in the market.
Having said that, I feel strongly that the currently negotiated
settlement does not do enough to punish Microsoft for past
anticompetitive behavior or to prevent such behavior in the future.
I don't believe that a break up of the company is a solution. The
lines between application and operating system are quickly
disappearing. Future technologies will continue to blur those lines.
But I feel that Microsoft has used strict contracts with OEM's as
well as unnecessary integration of applications into the OS
(Internet Explorer in Windows 95/98/ME/2000 and XP, and now Windows
Media Player in XP) to hinder consumer choice and competition.
In addition to the solutions already proposed, Microsoft should
be forced to open the source code to ALL operating system API's, and
quite possibly the entire OS. This would allow competing application
developers to successfully create applications that work correctly
with Microsoft operating systems. I feel strongly that the
inaccessibility of the API information was one of the reasons
Netscape, Corel, Novell and other application providers have had
such a difficult time distributing bug free software.
Microsoft should also be strictly monitored in terms of its
contracts with OEM's and other providers. Currently, if a consumer
purchases a new PC from a manufacturer, it is quite literally
impossible for the consumer to get one without a Microsoft OS. And
if a consumer is successful at such an endeavor, that consumer can
not be properly reimbursed from the OEM or Microsoft for the
Microsoft software costs that are automatically incorporated into
the cost of the PC. It is imperative that the federal government
return the operating system and application market to a more stable
playing field. As well it is important that Microsoft make
reparations for past wrongs. Please reconsider the current
settlement, and come up with more appropriate and harsher
consequences. Microsoft must not get off with just a slap of the
wrist.
Sincerely,
Norwood Catron
Independent IT consultant and concerned consumer
[email protected]
23747 Vassar
Hazel Park, MI 48030
MTC-00028459
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:44pm
Subject: microsoft settlement
It is time to end the persecution of Microsoft. This persecution
could set a precedent that can ultimately have dire consequenses to
our American system of free markets. Should the D of J pursue legal
action against McDonalds for the benefit of Burger King and Wendy's?
Or Intel, or General Motors, etc?
The government should not be a tool of one group of
businesses'' attempts to gain ground on their competition. I am
not an employee of Microsoft, nor do I own, nor have I ever owned
any Microsoft stock. I purchase their products solely because they
are the best on the market.
Andre Schan
41 Horseneck Road
Montville, NJ 07045
MTC-00028460
From: R M
To: Microsoft ATR
Date: 1/28/02 3:47pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I object to the Proposed Final Judgment in the Microsoft case.
There are several apparent flaws with in the final proposal that I
just dont like. One the PFJ does not terminate the MS illegal
monopoly. 2nd MS will be able to continue with its ant-competitive
activities. 3rd MS will be allowed to partake in the fruits of its
past violations. I dont see how such a settlement punishes Microsoft
for breaking the anti-trust laws. Therefore I oppose a settlement-
The Proposed Final Judgment.
Sincerely,
Rose Mamon
179 River Pines Way
Vallejo, CA 94589
CC:
[email protected]@inetgw
MTC-00028461
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:47pm
Subject: Microsoft
January 25,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am frustrated that, despite all efforts to serve justice,
problems continue to arise in the Microsoft antitrust case. Now,
even as a settlement is pending in the federal courts, Microsoft's
opponents are seeking to overturn the settlement and bring
additional litigation against Microsoft. This is highly
inappropriate. Microsoft has done nothing to warrant such vicious
persecution except be
[[Page 28282]]
successful. The litigants who seek to overturn the settlement have
no altruistic aims--;they only want to squeeze all the profit
they can out of Microsoft.
After six months of supervised negotiations, Microsoft and the
Department of Justice were able to reach a settlement in the
antitrust case. Microsoft's opponents claim the settlement is too
lenient and that Microsoft has merely received a slap on the wrist,
but such is not the case. Some of the terms agreed to in the
settlement extend to products and policies that were not found to be
unlawful by the Court of Appeals; Microsoft has agreed to these
terms in the interest of wrapping up the case. I agree that it is
time to settle and move on, and I do not think the settlement is in
any way unfair. For example, Microsoft has agreed to license the
Windows operating system to twenty of the largest computer makers on
identical terms and conditions, including price. Additionally,
Microsoft will refrain in future from retaliating against anyone who
produces software that directly competes with Microsoft technology.
I do not believe that additional action is necessary on the
federal level. Microsoft has paid its debt to society, and it is
time to let this go. I ask you to support the settlement in its
entirety.
Sincerely,
Donald Decker
183 San Remo Road
Carmel, CA 93923
MTC-00028462
From: Andy Oliver
To: Microsoft ATR
Date: 1/28/02 3:48pm
Subject: Microsoft must be strongly punished for illegal behavior
Microsoft must be strongly punished for its anticompetitive
behavior. As a software developer for the past 10 years, I have
witnessed first hand the detrimental effect of the Microsoft
monopoly on innovation and pricing. Punishments must be far stronger
than the proposed settlements in order for them to have any effect
on Microsoft's behavior.
Please break up Microsoft and force the separate groups to
publicly document all programming interfaces (APIs) and file
formats, with strong, regular oversight.
Thank you.
Andy Oliver
Professional Software Developer
andy--;o--;[email protected]
MTC-00028463
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:48pm
Subject: Microsoft Settlement
I think it is unfair for the government to punish companies for
being successful and that is what is happening here.
MTC-00028464
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:48pm
Subject: Microsoft Settlement
Dear Sir or Madam--;
Regarding the settlement of the antitrust case with
Microsoft--; Microsoft's unethical and anticompetitive business
practices must be stopped. There must be an injunction or other
legal device, or Microsoft must be split into separate business
entities in order to restore competition. Microsoft's operating
system must be unbundled from its internet browser and other
software so that the consumer and free market will determine the
best products and foster healthy competition.
I have purchased several software packages such as spreadsheet,
word processing, project scheduling that I greatly preferred over
the Microsoft products; however, they are no longer available for
update due to the unfair competition from Microsoft. I have been
personally hurt by Microsoft in that I am forced to use inferior,
crash prone software.
Thank you for your consideration.
Sincerely,
KR Schroepfer
310 Rider RIdge
Santa Cruz, CA 95065
1-;831-;809-;1561
[email protected]
MTC-00028465
From: Bob Peterson
To: Microsoft ATR
Date: 1/28/02 3:48pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
I'm writing this to you because I'm gravely concerned over the
settlement between our DOJ and Microsoft. There is no teeth to the
settlement. It places too much trust in a company that is not
trustworthy and has proven as such over its entire history. All that
it will do is enhance Microsoft's grip on the desktop market and
allow it to expand and also destroy other areas. Already the signs
are everywhere that with every step in Microsoft's control and
destruction of our computing industry, innovation has crawled to a
near stop. When I say innovation, I am referring to the true meaning
of the word and not another mad-twist meaning from Microsoft when
they use ``innovate'' as part of their questionable ad
campaign.
I am a user of Linux. Lately, I've noticed that Microsoft has
increasingly tried to squeeze out non-windows platforms by their
usual dirty tactics. It used to be that I could access my hotmail
account. Now I'm forced to have a Passport account. Passport is a
Microsoft product and Microsoft refuses to support a Linux version
of Passport. Remember the debacle with MSN.com not allowing any non
Internet Explorer browsers to visit their site? While on the subject
of Internet Explorer; who on earth wants to view their file
directory as a webpage (like in the Windows operating system)? This
is the result of you allowing Microsoft to tie-in their browser and
falsely claim that it's an integral part of Windows. It is not
necessary and anyone with a slight understanding of computers should
know that... except for some reason the DOJ.
As part of the settlement you Microsoft must be forced to sell a
version of Windows without all the predatory tie-ins. And they must
be forced to port all their applications to other operating systems.
Those ported applications must be of equal quality and
functionality. Typically, when Microsoft ports their software to
another platform (Mac), that software is usually a crippled version
of the windows original. They can claim that Windows is superior and
thus providing more features but any software engineer would say
otherwise. Then Microsoft must provide all the necessary
specifications for 3rd party software vendors so as not to give
Microsoft another area of unfair advantage.
Another point to bring up is the myth that Microsoft is good for
our economy. Is it? I don't think so. How can Microsoft justify
charging hundreds of dollars for an operating system that is no
better than its previous version? The cost of manufacturing is
nearly zero. But yet, everyone PC owner including businesses are
strong-armed into buying this poor excuse for an upgrade. Those
businesses are then forced to pass on that cost to the consumer. The
cost amounts to a heavy burden on our national economy. Then
Microsoft uses this money not to truly innovate and create more
secure software, but to use their legal monetary might to crush the
competition. Thus putting more people out of jobs. This is bad for
our economy.
So please do not let Microsoft escape unscathed with yet another
blatant violation of the law. Just look around you. The software
landscape is nearly bare in the Windows market as far as
``genetic'' diversity. Without strong restrictions on
their business tactics, we will be left with a very weakened
engineering base as the world will continue to truly innovate.
Having our schools teach Microsoft products instead of real software
engineering will amount to suicide of the knowledge base. Then we'll
have to answer to our children and grandchildren when they ask why
we have to import quality software from Asia and Europe. And, why we
had such a lead in that field and chose to allow one company
(Microsoft) to sabotage everything we've worked for. Do the right
thing now before it's too late and we lose everything.
Sincerely,
Bob Peterson
1007 NE 126th
Seattle, WA 98125
MTC-00028466
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 3:46pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the
[[Page 28283]]
most dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Christine Corea
38777 Road 600
Raymond, CA 93653-;9504
MTC-00028467
From: Julie Rocheville
To: Microsoft ATR
Date: 1/28/02 3:50pm
Subject: Microsoft Settlement
Please settle this ugly dispute with Microsoft NOW! MS has
created more jobs and has done more positive things for the US
economy than any other employer in history. Do us ALL a favor and
keep Windows together. It truely is time for you say ``enough
is enough'' and get back to some more pressing issues. J
on & Julie Rocheville
MTC-00028468
From: N T
To: Microsoft ATR
Date: 1/28/02 3:50pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I do not approve of the Proposed Final Judgment in the MS case.
First of all every one know the U.S. Court of Appeals ruled
unanimously that Microsoft had clearly violated anti-trust laws. It
was understood as well as established that the government was in the
process of developing a plan the accomplished the following: abolish
the illegal monopoly implemented by Microsoft, deny MS the fruits of
its past violations, and last but not least prevent further anti-
competitive activity or behavior by MS. To my bewilderment, I cannot
yet fathom how it is possible the Department of Justice would agree
to such an egregious settlement that for the most part goes against
all objectives stated previously in the MS case. Logically this
proposal does not accomplish what the U.S Court of Appeals set
forth. Therefore I am submitting my disapproval of the Proposed
Final Judgment in the Microsoft Case.
Sincerely,
Nils Trulssen
1742 Edgewood Dr.
Lodi, CA 95240
MTC-00028469
From: Charlotte Muse
To: Microsoft ATR
Date: 1/28/02 3:50pm
Subject:
I am writing to let you know that in my opinion the proposed
settlement between Microsoft and the Department of Justice is a
travesty. Microsoft's predatory behavior represents a profound
threat to the health not only of the technology sector, in which I
work, but of US industry as a whole, and of the United States
itself.
If Microsoft can dictate its terms to the US government, who is
it that really governs?
I urge you to reinstate the eminently fitting decision of
Justice Jackson, and break the company up so as to separate the
ownership of the operating system from that of the desktop
applications.
Charlotte Muse
1020 Louise Street
Menlo Park, CA 94025
MTC-00028470
From: Andy Warner
To: Microsoft ATR
Date: 1/28/02 3:49pm
Subject: Microsoft Settlement
Dear Person,
I have been employed by Netscape Communications for nearly five
years as a software developer and I've been in the Information
Technology field for over 20 years. Microsoft should not be allowed
to destroy companies at their will, whenever they feel threatened by
new technologies or decide to expand into a new market. Obviously,
they can put any company into near bankruptcy, by using the revenue
from the monopoly OS business to fund development and give away
competing products. Allowing that behavior to continue will
dramatically slow the growth rate of new technologies by giving the
perception that the profits from those very difficult efforts can
easily be taken away by the likes of Microsoft. Anything short of
severe punishment will just signal that its ok to steal market share
and destroy businesses as a tactic of growing your business. If that
were allowed, then any business that has more money than another
business can destroy it by simply building a competing product and
giving it away until you've put them out of business. Is that the
kind of business environment that we are trying to promote in this
country? This is a great opportunity to show all businesses that
integrity and fairness is a requirement to do business in the United
States. That the people of the United States will not allow unfair
market take-overs by giving away products to destroy companies. We
could now show investors that their investments in new technologies
will be protected from the predatory practices of companies like
Microsoft.
This is not the time to allow ``politics as usual''
and hinder the investment in new technologies by showing that once
you begin selling your new idea, any larger company can develop a
similar product and give it away until your bankrupt. If you wonder
where all the investment is in Silicon Valley startups, just think
about the signal that we've given investors through the Microsoft
trial. Who would want to invest in building new products knowing
that if your successful your business will be stolen from you by any
wealthy company that has the inclination.
Thanks,
Andy Warner
MTC-00028471
From: Laurie Wieder
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:10pm
Subject: Microsoft Settlement
I am e-mailing to you a copy of the letter we are attempting to fax
to you at 202-;616-;9937 in support of the Microsoft
settlement. We will keep trying to fax the letter to you, and we are
placing the original of the letter in the mail.
Laurie Wieder
President
Prince William Regional Chamber of Commerce
``The Region's Leading Voice for Business''
4320 Ridgewood Center Drive
Prince William, VA 22191
(703) 590-;5000 (703) 590-;9815 fax
www.RegionalChamber.org
<>
PRINCE WILLIAM REGIONAL CHAMBER OF COMMERCE
4320 Ridgewood Center Drive
Prince William, VA 22192
703-;590-;5000
January 28, 2002
Ms. Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street, Suite 1200
Washington, DC 20630
RE: Comments on the Microsoft Proposed Settlement Agreement
Dear Ms. Hesse:
The Prince William Regional Chamber of Commerce is writing this
letter to express its support for the settlement reached by the U.S.
Department of Justice, nine state attorneys general and Microsoft in
the long-running antitrust lawsuit initiated by the federal
government.
The Region's Chamber is critically aware of how important it is
to our national economy that all businesses be able to ``get
back to business.'' There were many knowledgeable people guided
by an internationally recognized mediator to reach the Microsoft
settlement. We believe that additional litigation, following on the
heels of many years of costly legal proceedings and on the
subsequent work of those in mediation would serve only to prolong
the negative impact on our economy of the Microsoft litigation.
Therefore, the Prince William Regional Chamber of Commerce, an
organization of more than 800 businesses in the Prince William area,
respectfully encourages the U.S. Department of Justice to urge the
Courts to adopt the agreement with all due speed so that business
and our national--;and even international--;economy can move
forward again with certainty.
Sincerely,
Carol A. Kalbfleisch
Chairman of the Baord
Laurie C. Wieder
President
MTC-00028472
From: Emily L Hughes
To: Microsoft ATR
Date: 1/28/02 3:49pm
Subject: Microsoft settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue NW
Washington DC 20530-;0001
John
I am writing you today to encourage you to accept the Microsoft
antitrust settlement. This issue has been drug out much more than
necessary.
Microsoft has agreed to design future versions of Windows to be
more effective for other companies software. They've also agreed to
all other terms of the settlement.
Why is our court system punishing Microsoft? What are they
afraid of?
[[Page 28284]]
Please accept this antitrust settlement, so our court system and
Microsoft can get on with other more productive issues.
Thank you.
Emily Hughes
Bellingham, Washington
CC:[email protected]@
inetgw
MTC-00028473
From: rshwake@mailhub-
4.net.treas.gov@inetgw
To: Microsoft ATR
Date: 1/28/02 2:41pm
Subject: Microsoft Settlement
Though I am not an attorney, I have followed this case from the
beginning and am appalled that Justice could consider accepting such
a settlement. It does not address the criminal wrongdoing described
in the Finding of Fact, nor the Findings of Law, almost all of which
were upheld by the Appeals Court. More critically, there is neither
punishment nor adequate means in place to prevent Microsoft's
current market dominance from being leveraged into new ventures. The
control mechanisms (``three person team'') is a joke, and
the ``exceptions'' provide, as some have described it,
``loopholes on loopholes''. I can only hope that Judge
Kottelly has the sense to reject this proposal for failing the test
of ``public interest''.
Raymond Shwake
[email protected]
MTC-00028474
From: Arthur Vardy
To: Microsoft ATR
Date: 1/28/02 3:54pm
Subject: Microsoft
Dear Sirs:
Get off a Microsoft and do something worthwhile like take on
Enron.
Sincerely
Beverly Vardy
MTC-00028475
From: C T
To: Microsoft ATR
Date: 1/28/02 3:53pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I wanted to make my opinion count. In turn, I object to the
Proposed Final Judgment in the MS case. As history will prove,
Microsoft continues to violate business practices. The Proposed
Final Judgment in a sense, does not deny Microsoft its past
violations and illegal acts. As one can see, every court, which has
been involved with the case, has found Microsoft guilty of breaking
the anti-trust laws. However, under the proposed final settlement,
Microsoft, surprisingly enough, will be permitted to retain most if
not all profits gained through their illicit activities.
Subsequently, the PFJ will not compensate parties injured or
harmed through Microsofts egregious misdeeds. In addition, the PFJ
will not take into account all Microsoft gains made through its
illegal maneuverings. With all due respect, the final settlement is
basically acknowledging the acceptance of Microsofts anti-
competitive behavior. What kind of message does this send out to the
public? I can assure you that the message is clear and simple. The
Proposed Final Judgment encourages big corporations to engage in
monopolistic and predatory conduct, which in turn is detrimental to
the technology industry at large. I am angered at a proposal that
only helps Microsoft to remain intact. Therefore I submit my
objection to this Proposed Final Judgment.
Kind Regards,
Cookie Trulssen
1742 Edgewood Dr.
Lodi, CA 95240
CC:[email protected]@inetgw
MTC-00028476
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:54pm
Subject: Microsoft Settlement
With all that has been said, I will be brief and to the point:
(1) Microsoft has been a great partner to our firm, G. A.
Sullivan, and has been instrumental in helping us grow dramatically
during the last decade. Among the honors we have received, Greg
Sullivan, our founder, was named the 1999 U.S. Small Business
Administration National Small Business Person of the Year. The
success we have enjoyed has often been due to our strong partnership
with Microsoft.
(2) Competition is alive and well in our industry. In the
operating system marketplace, for example, IBM has thrown its
considerable clout behind Linux and is aggressively advertising this
fact. During the recent National Football League NFC Championship,
they ran advertisements using basketball players as a metaphor for
computer industry products and forces. For example, the ?opposing
team? included players named ?Hacker?, ?Virus?, and ?Downtime?.
?Linux? was characterized as an incredibly talented player who would
play for ?almost nothing? because ?he loves the game?. It remains to
be seen how effective this ad campaign will be, but IDC predicts
that Linux's market share will increase to 41% by 2005.
(3) While Microsoft does have some advantages in its daily
business operations, advantages that we believe they have earned
through hard work, it also still faces formidable obstacles and some
important disadvantages. For example, as Microsoft attempts to sell
its operating systems and platforms to corporate America, in the
largest corporations (sometimes called the Enterprise marketplace)
they are often viewed with condescension as a ?desktop? vendor
selling personal productivity tools, computer mice, and games. They
continue to build a channel of partners to help provide the
necessary services to install, configure, and support their
offerings in large corporations, but face stiff competition from IBM
Global Services, often an entrenched competitor of huge proportions.
Other large service organizations are also most often working
against, rather than for, Microsoft.
(4) In many key areas of new research and growth (e.g. Personal
Digital Assistants (PDAs), instant messaging, and highly scalable
clustering for scientific purposes), Microsoft is a distant second
or third place competitor to other firms and technologies (e.g.
Palm, AOL, and Beowulf). To summarize our opinion?in almost every
case Microsoft has been a tough but fair competitor in the
marketplace. In the areas their practices were found anti-
competitive, the remedies that have already been recommended are
sufficient.
Microsoft has been a great partner to our firm, and we do our
best every day to help ensure their success. Contrary to what many
of Microsoft's competitors state, we find the marketplace to be a
VERY competitive place, and hope that a more comprehensive ?remedy?
is not enacted.
CC:[email protected]@
inetgw
MTC-00028477
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:50pm
Subject: Microsoft Settlement
I'm against the propsed settlement. It is way too easy on
Microsoft.
I think Microsoft should be broken up into 1) operatings systems
and 2) applications.
MTC-00028478
From: Jeff Fabijanic
To: Microsoft ATR
Date: 1/28/02 3:55pm
Subject: Microsoft Settlement.
To whom it may concern:
I am writing you today to express my concern and oppostition to
the Proposed Final Judgement in the United States v. Microsoft
antitrust case. I believe this settlement is counter to the best
interests of the American people, harmful to our economy, and
clearly inadequate given the findings of fact in the trial.
As a professional computer user and technology developer for the
past 15 years (over twenty five if you consider my student years in
high school and then MIT), I have watched as Microsoft has used any
number of unethical and anti-competitive strategies to attain and
maintain dominance at the expense of other companies, competing
software platforms and consumers such as myself. In this respect, I
am satisfied with the findings of fact in the case, as they confirm
this viewpoint.
However, as upset as I am with Microsoft's past behaviours, I am
extremely concerned that these same types of behavior are prevented
in the future. Given the findings of fact, any judgement should
demand strict measures which address not only the practices the
company has engaged in previously, but which should also prevent
them from engaging in other monopolistic practices in the future. I
do not think that the Proposed Judgement is strong enough to serve
this function.
As I read the Proposed Judgement, many--;perhaps
most--;of the remedies will be ineffective against a company
such as Microsoft which is determined to circumvent them. That
Microsoft will work to bypass the original intent of the Judgement
is clear for both technical and business practices--;even during
the course of the trial and settlement negotiations it has continued
to use tactics that should be blocked by a solid agreement.
In fact just this month Bill Gates declared
``security'' to be the future direction of Microsoft's
focus. Of course, under the
[[Page 28285]]
Proposed Judgement anything related to security need not be
disclosed even if such would otherwise be mandatory. Under a strict
reading, if Microsoft adds even basic security interfaces to its
APIs then *none* of those APIs would need to be disclosed and there
would be no penalty for not disclosing them. And to add insult to
injury, the settlement as written actually seems to codify some of
Microsoft's predatory practices. For example, although the
settlement forces Microsoft to share its APIs with certain
competitors, it also would force those who use these APIs to share
all their finished code with Microsoft. As a result, Microsoft would
see these companies'' code trade secrets and have the
oportunity to replicate or circumvent them.
Another example--;a requirement for receiving documentation
for those APIs is that any organization needing it must meet
*Microsoft-developed* standards of business viability; ``non-
businesses'' (eg small or non-profit companies, and individual
developers) probably won't qualify and so access to those APIs will
simply not be available to them. Similarly, the clause requiring
that Microsoft's competitors be allowed to place their own icons on
the PC desktops only applies to companies which have already sold
more than a million copies of their software in the U.S. So the very
companies who most need a competitive advantage can not, in this
case, receive it.
There are numerous other problems or oversights in the Proposed
Judgement. However, for the sake of brevity, I will limit my
comments to this last statement--;I feel that the Proposed Final
Judgement is deeply flawed and needs to be substantially revised to
remove these flaws. Microsoft deserves more than a wrist-slap for
the destructive abuse of its monopoly power, and all of us,
including Microsoft and its investors, need to be protected against
future abuses.
Sincerely Yours,
Jeff Fabijanic
Boston, MA.
Jeffrey Fabijanic
MIT Media Lab Liaison
Panasonic Information and Networking Technologies Laboratory
[email protected] (617)
577-;1280 x115
MTC-00028479
From: Stapleton, Mark
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 3:55pm
Subject: Microsoft Settlement
Department of Justice:
I am writing to comment on the proposed settlement with
Microsoft. I believe that the settlement is fair for both Microsoft
and consumers. Microsoft deserved a penalty for their behavior and
the penalty is harsh enough for Microsoft to learn their lesson.
Microsoft's competitors continue to fund lobbying efforts to
overturn the settlement and inflict harsher penalties. The
settlement is for the consumers, not competitors who find their best
way to compete is fund lawsuits against Microsoft. An antitrust
remedy should be designed to protect consumers rather than advance
the interests of competitors.
The Department of Justice must stand-by the settlement, and not
allow competitor-funded lobbying efforts to sway them. In no way do
the competitors (i.e. AOL, Sun Microsystems, Oracle) have the
consumer rights in mind when they continue to pour money into
lobbying efforts. They want to create harsher penalties on Microsoft
so they may be better equipped to compete. If they did have the
consumers in mind they would be pouring money into research and
development to compete with Microsoft in the marketplace.
It's time to end this with the proposed settlement and all these
companies should get back to what they do best...create innovative
products for consumers.
MTC-00028480
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 3:54pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Gaynelle Jordan
110 Breed St.
Titusville, PA 16354-;2122
MTC-00028481
From: Xana Kim
To: Microsoft ATR
Date: 1/28/02 3:57pm
Subject: Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
I must say that I am appalled at the proposed final judgment in
United States v. Microsoft.
Briefly, I do not feel that the settlement will in any way
punish Microsoft for it's past violation of the law, nor will it
prevent future violation.
Xana Kim
MTC-00028482
From: Tommy Ward
To: Microsoft ATR
Date: 1/28/02 11:44pm
Subject: Fwd: Microsoft Antitrust Comments
Date: Mon, 28 Jan 2002 11:46:45 -0800
To: [email protected]
From: Tommy Ward
Subject: Microsoft Antitrust Comments
>Dear Staff,
>As a 20 year veteran in the network industry, I would like
to take this >opportunity to provide my comments on the
settlement of the Microsoft >anti-trust case. My opinions are
based on both my professional experience >as well as my
experiences as a consumer.
>First, the currently proposed settlement terms reached by
Microsoft and >Justice Department negotiators is completely
inadequate to protect >consumers. It should be dismissed out of
hand.
>Second, controls must be put in place to guard against
Microsoft's ability >to leverage their current desktop monopoly
into effective control of the >public Internet. If they are able
to dictate the terms and conditions by >which meaningful business
can be conducted over the Internet, this >dynamic forum of social
and business intercourse will be extremely >stifled. What would
constitute such effective controls? Rather than >focusing on
contracts with computer vendors (which might be a >reasonable
choice if we were concerned about the maintenance of the >desktop
monopoly), the controls should be aimed squarely at the
>integration of all Microsoft software--;both client and
server, with >no distinction between operating system and
application--;with any >Internet services provided by
Microsoft. If Microsoft chooses to >build support for
authentication, payment, name resolution, routing, >search, or
any other useful functionality into their software they >should
be allowed to do so, as long as they do not also provide >such
service which is accessed by that software.
>An example of such integration which already exists is
>the Passport system, whereby multiple Microsoft application
>software products use common procedures to make use of an
authentication >service provided by Microsoft over the Internet.
An effective >curb on potential Microsoft abuse would be to
disallow the company >to provide the Internet service portion of
that function. If such a curb >is not implemented, Microsoft may
be able to leverage their monopoly >on Internet client software
into a very effective control over Internet >commerce. I suggest
that the most effective method of implementing
>such a control would be to force the company to divest all
Internet >lines of business other than those which are used to
market and >support it's software business.
>If effective controls are not placed on Microsoft's business
conduct, >this company will be able to leverage undue influence
in practically >every area of public life in the United States,
including commerce, >entertainment, news, personal
correspondence, and government. Not >only would such a situation
be bad for business, it would be detrimental >to democracy. We
can not allow one company to threaten our >future in the way that
Microsoft will if allowed free reign.
>Regards,
>Tommy Ward
>Saratoga, CA
>[email protected]
MTC-00028483
From:
[email protected]@inetgw
[[Page 28286]]
To: Microsoft ATR
Date: 1/28/02 3:59pm
Subject: Microsoft settlement
Dear DOJ,
Due to the various continuing suits against Microsoft, I am
forced to exit Microsoft Explorer (the company's browser and
entrance to the internet) and bring up AmericaOnLine to read and
send email. My other choice would have been, again, to close
Microsoft Explorer and to bring up Microsoft Outlook Express which,
as you well know, is split off from Microsoft Explorer. But isn't it
ironic; AOL is suing Microsoft over its overweening powers, yet I
can use AOL for both purposes: to receive and send email AND TO USE
THE INTERNET but I CANNOT use Microsoft Explorer to use both
services. Just who IS the monopolist here?
And last I looked on the tv screen, AOL, which also has a pretty
good control of the NYC cable market, is spending zillions on
advertising its AOL Time Warner direct cable hookup. And doesn't AOL
have control of some magazines? and some TV stations? and some
books? and some records? Excuse me, while I fall down the rabbit
hole, said Alice. As a stockholder of Microsoft, Sun Micro and
others and fortunate seller of AOL (at breakeven) and as user of
Apple, Microsft Word etc and AOL since 1985, AND attempted user of
Netscape which has been largely defunct since being taken over by
AOL, I would find the not so sly tactics of the AOL/Sun etc gang who
use stockholder monies to launch extensive and expensive litigation
(which then becomes their raison d'Atre) laughable if it weren't so
harmful to consumers, stockholders and profitably run businesses. It
isn't just off balance sheet limited partnership that drain assets.
My support for Microsoft is based on many years of using their
products and services which have always worked smoothly, reliably
and efficiently which is, after all, what I pay for. As a
stockholder I find Microsoft reports earnings in a conservative
manner and maintains a strong balance sheet both of which indicate
the company tends to its business and is not wasting stockholder
assets. Everytime the market sneezes I don't feel as though I am
going to lose my entire investment in Microsoft as I might with
others. If the interest is the consumer and the stockholder,
Microsoft will win hands down. If not, we'll see just how fair the
US markets really are.
Ruth Sumners
January 28, 2002
MTC-00028485
From: Bruce Wynn
To: Microsoft ATR
Date: 1/28/02 4:00pm
Subject: Microsoft settlement
The govenment, my government should make sure they understand
that the consumer is not harmed by Microsoft it's products are
cheaper than and better ever. Is Microsoft not allowed to compete,
it should be allowed to compete and those cry babies Sun, Oracle and
AOL will just have to make better products rather than lobby with
governments about a competior--;Microsoft. They are trying the
exact same thing in Europe and I hope our legislators see through
this smoke screen and see the facts Microsoft has superior products
and the market proves that.
I feel the government should not pursure any further actions
against Microsoft. I believe the terms-which have met or gone beyond
the findings of the Court of Appeals ruling-are reasonable and fair
to all parties involved. This settlement represents the best
opportunity for Microsoft and the industry to move forward. However,
the settlement is not guaranteed until after the review ends and the
District Court determines whether the terms are indeed in the public
interest.
Bruce Wynn
MTC-00028486
From: Lawrence A. Husick
To: Microsoft ATR
Date: 1/28/02 4:00pm
Subject: Microsoft Settlement
Appropriate injunctive relief in an antitrust case should: (1)
end the unlawful conduct; (2) ``avoid a recurrence of the
violation'' and others like it; and (3) undo its
anticompetitive consequences. See Nat'l Soc'y of Prof'l Eng'rs v.
United States, 435 U.S. 679, 697 (1978); United States v. E.I. du
Pont de Nemours & Co., 366 U.S. 316, 326 (1961); Int'l Salt Co.
v. United States, 332 U.S. 392, 401 (1947); United States v.
Microsoft Corp., 253 F.3d 34, 103, 107 (DC Cir. 2001) The proposed
settlment fails utterly to achieve these goals. Rather, it is
another opportunity for Microsoft to litigate the definitions of the
settlement, rather than participate fairly in the market. A
settlement which leaves Microsoft free to hide features and
functions of its operating system behind license restrictions and
nondisclosure agreements, and then to use these functions to
advantage its own applications development process and products is
inadequate. The source code of Microsoft's operating system must be
published and made available at nondiscriminatory rates to all users
in order to prevent future misuse of this substantial advantage by
Microsoft. The source code to Microsoft's Office products must be
auctioned to vendors wishing to compete with Microsoft, whether on
the Windows platform or elsewhere in order to redress the violations
that use of these hidden functions by Microsoft has created.
Microsoft must create an independent, not-for-profit entity,
transfer title to its Internet Explorer code to that entity, and pay
royalties for each copy of IE to that entity, which should then use
the proceeds to fund development of software products which function
across multiple platforms in order to open up the application
development arena to non-Microsoft products.
Lawrence A. Husick
LIPTON, WEINBERGER & HUSICK
Intellectual Property and Technology Law
[email protected]
http://www.LawHusick.com
P.O. Box 587
Southeastern, PA 19399-;0587
610/296-;8259 Voice 610/296-;5816 Fax
AOL/Netscape IM: LawHusick
``It is, in fact, nothing short of a miracle that the
modern methods of instruction have not yet entirely strangled the
holy curiosity of inquiry.''
--;Albert Einstein (1879-;1955)--;Autobiographical
Notes
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(Official-Looking Notice V1.5fc3)
MTC-00028487
From: Frank Zepf
To: Microsoft ATR
Date: 1/28/02 4:01pm
Subject: Microsoft settlement
52 Pennsylvania Avenue
Massapequa, NY 11758
January 27, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft: The antitrust suit against Microsoft has gone
on for long enough. I believe that this suit is just trying to gore
the fat cat just because it is fat. If Time Warner packages Netscape
with AOL, then what is the harm with Microsoft packaging Explorer
with Windows? This suit's contradicting demands are having a
detrimental consequence on the nation's financial situation.
The settlement that was reached between Microsoft and the
Justice Department will be beneficial in reviving consumer
confidence. Microsoft has agreed to license its Windows operating
system to 20 of the largest computer makers on identical terms and
conditions. The settlement instructs Microsoft to also make all
future versions of its Windows to be compatible with non-Microsoft
software.
The settlement may seem to challenge the free-market, but it is
vital to settle the case to help provide assistance in revitalizing
the economy.
Sincerely,
Frank Zepf
Frank V. Zepf
52 Pennsylvania Ave.
Massapequa, NY 11758-;4838
Phone 516-;798 0353
MTC-00028488
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:01pm
Subject: Microsoft Settlement
Your Honor,
After reading and listening to the mass of information being
presented to the general consumer regarding a potential miscarriage
of justice, it would appear to me that I may have a rather unpopular
opinion. I'd like explain my thoughts, but before I do...I need to
clarify that I do NOT work for, recieve monys from, nor do I get any
special benefits from either party in doing so.
[[Page 28287]]
We've seen what Apple computer tried to do in the past, by
making everything they make propriatory. The average working person
can't afford the equipment, let alone the software that works ONLY
on their system. Tandy corporation (Radio Shack) tried to do the
same thing, and nearly sunk them financially. ....because of
Microsoft. Seems to me that if a competitor can't come up with a
competitive system, ad a competivitve cost...they cry monopoly. If
any legal decision favors these flag carrying towncriers of
``healthy competition'.....the ONLY ones that will benefit from
it, will be them!
I don't know if I'm adequately articulating my position, but I
just feel if 10,000 people can easily afford to buy a computer, and
use software that's readily available, it's better for those 10,000
people than if say only 1,500 could afford to pay the EXTREMELY high
prices of a system made by Apple or Sun technologies. It's true the
profit to Apple and/or Sun is considerably higher from these 1,500
than the 10,000 working class like myself, but in my
opinion...through all the smoke and mirrors...that's what this is
REALLY all about. $$$$$$ Yes...monopoly CAN be a bad thing, but the
only thing Microsoft is guilty of is providing an easy to use
product at a low cost. Something the others just can't seem to do.
Go with your instincts, and stick with ``Of the People, By
the People.....and FOR the people''. It's an old system...but
it still works.
Thanks for your time,
Steve Shockley
PO BOX 237
West Creek NJ 08092
PS: It would interest me greatly to know if you ever recieve
this letter.
MTC-00028489
From: Donald E. Barlow
To: Microsoft ATR
Date: 1/28/02 4:01pm
Subject: Microsoft Settlement
Forwarded by Donald E. Barlow/PSG/Prudential on
01/28/2002 04:00 PM
``Microsoft's Freedom To Innovate Network''
Monday January 28, 2002 03:55 PM
To:
``donald--;[email protected]''
cc:
Subject: Attorney General John Ashcroft Letter
Attached is the letter we have drafted for you based on your
comments. Please review it and make changes to anything that does
not represent what you think. If you received this letter by fax,
you can photocopy it onto your business letterhead; if the letter
was emailed, just print it out on your letterhead. Then sign and fax
it to the Attorney General. We believe that it is essential to let
our Attorney General know how important this issue is to their
constituents. The public comment period for this issue ends on
January 28th. Please send in your letter as soon as is convenient.
When you send out the letter, please do one of the following:
* Fax a signed copy of your letter to us at
1-;800-;641-;2255;
* Email us at [email protected] to
confirm that you took action.
If you have any questions, please give us a call at
1-;800-;965-;4376. Thank you for your help in this
matter.
The Attorney General's fax and email are noted below.
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
In the Subject line of the e-mail, type Microsoft Settlement.
For more information, please visit these websites:
www.microsoft.com/freedomtoinnovate/
www.usdoj.gov/atr/cases/ms-settle.htm
(See attached file:
USAGBarlow--;Donald--;1044--;0124.doc)
The confidentiality of Internet e-mail cannot be guaranteed.
Information you send us over Internet e-mail could be viewed by
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Therefore, you should not include your account numbers, credit card
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PS--;DO--;NOT--;[email protected]
. Prudential Securities Incorporated
One Seaport Plaza New York, NY 10292
610 Old York Road Suite 400
Jenkintown, PA 19046
January 28,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am sending you this brief message to simply say I favor a
swift settlement of the Microsoft anti-trust case. This case has
gone on long enough. After four years of litigation, appellate
hearings and constant clamor the parties have a fair and workable
settlement proposal, endorsed by the court, your department,
Microsoft and the majority of state complainants. The proposal
should be ratified and the case closed.
The settlement requires Microsoft to radically alter its
business practices and its philosophy. Microsoft will now be
required to configure its Windows platforms in a manner that readily
accept non-Windows software. The company will be required to license
its Windows systems to major computer Manufacturers on uniform
terms. Microsoft has agreed not to use retaliatory practices against
manufacturers whose products compete against its product. It has
promised generally to abjure any predatory or anti-competitive
market practices. It has agreed, as I said above, to adopt a whole
new market philosophy that encourages not just competition, but its
competitors. Surely such concessions are sufficient consideration
for an end to this lawsuit.
Please support this agreement and help bring this case to a
close.
Sincerely,
Donald Barlow
cc: Senator Rick Santorum
MTC-00028490
From: Alan Q. Thompson
To: Microsoft ATR
Date: 1/28/02 4:02pm
Subject: Microsoft Settlement
My name is Alan K. Thompson. I live in Riverdale, MD, am a US
citizen, and am 37 years old. I feel that the proposed DOJ
settlement with Microsoft is a travesty of justice. The Sherman
anti-trust act was created to prevent the sort of illegal extension
and protection of monopoly for which Microsoft has been found
guilty. Microsoft has demonstrated in the past that it will use
every arguably legal means to avoid restrictions on its actions, and
the proposed settlement will allow it too much room. A much more
structurally enforced remedy, such as that proposed by Judge Jackson
in the original conviction or proposed by the ``dissenting
states'' in early December 2001, is necessary to restore
competition to this vital segment of the economy.
Thank you.
Alan K. Thompson
4711 Sheridan Street Suite 316351
Riverdale Park, MD 20737
MTC-00028491
From: WILLIAM YOCUM
To: Microsoft ATR
Date: 1/28/02 4:02pm
Subject: MICROSOFT SETTLEMENT
WHAT DESIRE WOULD ANY COMPANY HAVE TO DEVELOP PRODUCTS, IF THEY
WERE NOT PROTECTED BY PATENTS??? NONE. THIS IS WHAT THE GOVERMENT IS
TRYING TO TAKE FROM MICROSOFT. GET OFF THEIR BACKS.
MTC-00028492
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:03pm
Subject: Microsoft Settlement Please see attached> Sincerely Earl
R. Ramsey
3705 Arctic Boulevard #1451
Anchorage, AK 99503-;5774
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
[[Page 28288]]
Dear Mr. Ashcroft,
As a retiree who has been following this Microsoft antitrust
case, I must admit I was disappointed that this case was even
brought to court. There are so many other companies with a high
market share like Cisco and Oracle. No one pursued those companies.
Microsoft has been great for the economy, for the shareholders, and
for technology. What are the ramifications for this country, if
litigation were to continue another four years? Would Microsoft be
able to survive? They are already vulnerable, now that they've
agreed to disclose portions of their source codes in their operating
system to the competition.
Microsoft has been more than cooperative in resolving this
matter and agreed to terms well beyond what is expected in any
antitrust case. That ought to be enough.
Let's stop the litigation so the government can focus on more
pertinent issues. Not only is it good for the company, but for the
economy as well. Thanks for your consideration in this matter.
Sincerely,
Earl Ramsey
MTC-00028493
From: EON
To: Microsoft ATR
Date: 1/28/02 4:03pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
United States Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
I am very concerned that the proposed Microsoft settlement is
not in the public interest. My fear as a computer user is that the
all important freedom of choice which distinguishes our democracy
will be further eroded. I appreciate your attention and hope you
will include the following in your considerations.
My objections include the following points: 1) The settlement
leaves the Microsoft monopoly intact. It is vague and unenforceable.
It leaves Microsoft with numerous opportunities to exempt itself
from crucial provisions.
2) The proposed settlement ignores the all-important
applications barrier to entry which must be reduced or eliminated.
Any settlement or order needs to provide ways for consumers to run
any of the 70,000 existing Windows applications on any other
operating system.
3) Consumers need a la carte competition and choice so they, not
Microsoft, decide what products are on their computers. The
settlement must provide ways for any combination of non-Microsoft
operating systems, applications, and software components to run
properly with Microsoft products.
4) The remedies proposed by the Plaintiff Litigating States are
in the public interest and absolutely necessary, but they are not
sufficient without the remedies mentioned above.
5. The court must hold public proceedings under the Tunney Act,
and these proceedings must give citizens and consumer groups an
equal opportunity to participate, along with Microsoft's competitors
and customers.
Respectfully,
Mary Beth Brangan
117 Terrace Avenue
Bolinas, CA 94924
415-;868-;1901
MTC-00028494
From: Dave McGinley
To: Microsoft ATR
Date: 1/28/02 4:04pm
Subject: Microsoft Settlement
Respectfully submitted:
I oppose any settlement with Microsoft. I consider Microsoft's
tactics to be monopolistic, unfair to competition, and predatory.
Consider,
I was an Apple computer user from the late ``70s. Apple
computer is no longer a viable option do primarily to Microsoft. The
original MS Office came out on the Macintosh. When Apple begin to
compete with Microsoft (late 80's), the Office programs suddenly
were no longer supported on the Apple Platform and then when again
supported MS Word was interpeted causing painfully slow execution
(early 90's). Finally, when Apple capitulated to MS, a new fully
functional release was made late 90's. I was a Netscape Navigator
user. After running in to so many e-sites that would not support
Netscape I was forced to change to Internet Explorer. I was a Eudora
e-mail user. Again I was forced to change to Outlook Express for
compatibility.
Lastly, when using an Apple Postscript printer, mysteriously, MS
Office products would encounter errors printing. Research by my
programmer showed MS had ``added'' a Postscript command of
their own, thus preventing and Apple Standard Postscript command
from executing without errors. The bottom line, if MS wants the
market they have the financial and technical capability to drive any
competitor from the market. Watch what happens with XBox vs
Playstation and Ninetendo.
HELP.
Dave McGinley
Pericle Communications Company
1910 Vindicator Drive, Suite 100
Colorado Springs, CO 80919
[email protected]
719-;548-;5014 Vx 719-;548-;1211 Fx
MTC-00028495
From: Thomas Saeda
To: Microsoft ATR
Date: 1/28/02 4:04pm
Subject: Microsoft settlement
2308 Delina Drive
Las Vegas, NV 89134
January 27, 2002
Attorney General John Ashcroft
U.S. Justice Department
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am in support of the Microsoft antitrust settlement. It is
clearly a compromise for both parties involved.
This is, out of the possible options, one of the more reasonable
choices. Restrictions have been set upon Microsoft by the government
under the terms of this settlement. These include contractual
restrictions on the promotion of Windows technology, relationship
with software developers and design obligations.
Please support this settlement. It is important that the
technology industry concentrates on business now. The terms will
mean a new wave of innovation, promoted by increased competition. I
would appreciate it if the folks in Washington spent the
taxpayers'' money in more efficient ways.
Sincerely,
Thomas Saeda
CC: Senator Harry Reid
CC:[email protected]@
inetgw
MTC-00028496
From: bruce guenard
To: Microsoft ATR
Date: 1/28/02 4:04pm
Subject: microsoft settlement
Dear Judge,
I am( just) a personal user of computers and software since
1982. I have not read all the legal docs, but have followed the rise
of the personal compuger industry for about two decades. Microsoft
has produced good products and bad products. The culture of
Microsoft,(like the culture of Enron) is unhealthy: Before the death
of Lotus 123, the Microsoft mantra was``DOS isn't done
``til Lotus won't run.'' The ``winner take all, damn
the ethics'' attitude of MS might be tolerable if there were
real competition in the operating system(OS) market. But there is no
competition. No admission of guilt, no repentance.
``Innovation'' to Microsft is finding new ways to squeeze
dollars out if the public. Microsoft will *always* use its OS and
browser monopoly to maintain and extend it's illegal monopolies.
If It's a monopoly, it must be regulated. But when has Microsft
ever followed a judges'' order or an anti-trust law it doesn't
like? Better, separate the OS/Browser business from the rest of
Microsoft. THEN use a couple billion of MS illegal profits to fund
at least two open source OS alternatives, like Lindows. (using all
MS internal tech data) IF there is real competition in the OS
market, the public can choose to use or not to use MS products on
their merits, not because the OS/Browser demands it.*
We don't want the Chinese Communists creating a Linux future for
the Intel/AMD* PC do we?
Bruce Guenard
san jose ca
* There are no good analogies to the power the OS has over the
consumer. What if GM were the only car maker in earth and it sold a
car, but licensed the key? The key controlled the gas and brake and
would only work properly if the car contained GM manufactured
products. The car crashes a lot, but really crashes if not using GM
tires, gas, oil, batteries etc. And the key quits working after 5
years. Break a key, out of luck. Just buy a new car and license the
key
Car costs $19,999.00. Key licences for $1,990.00 for driving in
the city, $2,990.00 to go to the suburbs or out of state. (relative
pricing of home vs prof versions.) If your spouse or kids want a
key, they must buy a license, too.
[[Page 28289]]
** With AMD battling Intel in the CPU market, hardware prices
drop, with real choice. With the Microsoft OS Monopoly, forced
upgrade prices rise. Let there be the end of software monopolies!!
(pardon my spelling)
MTC-00028497
From: mike k
To: Microsoft ATR
Date: 1/28/02 4:05pm
Subject: Microsoft Settlement
Dear Sirs,
I believe that Microsoft has proven that they can and will find
a way to sidestep the intent of the judgement against them. They
will likely muddy the waters in such a way that the details of the
settlement will become largely irrelevant. I believe that the
current judgement is not enforceable against such a slippery
company.
thank you,
Mike Kirita
MTC-00028498
From: Des Owens
To: Microsoft ATR
Date: 1/28/02 4:05pm
Subject: Microsoft Settlement
I find the DOJ proposed settlement with Microsoft to be a
disgrace! Microsoft after snookering the original preparer of PC DOS
was handed a monopoly by IBM. They have exploited that monopoly in a
number of illegal ways. After being found guilty, they are now being
rewarded by the DOJ with such weak ``punishment'' and
unenforceable behavior restrictions, that Microsoft can now declare
victory and continue on their merry way. Considering the
relationship between Microsoft and the Bush administration, the
money and the Ballmer visit to VP Cheney, one might have expected
the DOJ to recuse itself.
This is an ``honorable'' administration--;value is
given for value received!
Yours truly,
Desmond H. Owens
1839 Kirkmont Drive
San Jose, CA 95124
MTC-00028499
From: Benjamin Curtis
To: Microsoft ATR
Date: 1/28/02 4:05pm
Subject: Microsoft Settlement
Please consider this email a vote for not allowing the proposed
settlement to stand. Microsoft has previously ignored and/or
violated previous decrees, and have continued to exhibit predatory
business practices to both establish and maintain their monopoly in
the technology sector. The current proposed settlement does not go
far enough to ensure that competition will be restored to the
marketplace, and is not in the consumer's interest.
Microsoft has used various means to eliminate any and all
threats of competition, including hiring away critical employees of
competing companies (Borland), eliminating a profitable market for a
software segment (Netscape), and integration of new products with
current market-dominating products (Microsoft Word vs. Word
Perfect). An oversight committee trying to enforce disputable
sections of the settlement will simply be no match against both the
entrenched competition-killing culture of Microsoft and the cadre of
attorneys used to support that culture's goals. Instead, more
drastic measures, such as those proposed by the nine dissenting
states, should be put in place to help restore the competition that
Microsoft has so effectively eliminated.
There are certain details of the proposed settlement that would
seriously weaken the settlement if it were to be implemented as it
currently drafted. For example, very little consideration is given
to competition that may come from non-profit-oriented organizations
such as the developers of the SAMBA project. This project's main
goal is to provide software to allow users of other operating
systems to provide file-sharing services in a network including
Microsoft Windows clients. SAMBA's developers have had to
continually adapt to Microsoft's changing of APIs and protocols to
achieve this goal. The provisions in the current settlement proposal
for releasing of API information simply are not stringent enough to
be effective, as they don't address in enough either sharing APIs
with non-profit groups or the timeliness of those transfers of
information. SAMBA has been the only effective competition to
Microsoft when it comes to file-sharing in dominantly Microsoft
Windows environments, and this settlement does little to encourage
that competition. Granted, this is only one case of a weakness in
the proposal, and the settlement is not intended to benefit any one
specific entity, but this is an example of how there are significant
weaknesses in the settlement's ability to help restore competition
and to be in the public interest.
In summary, this proposed settlement is not in the public
interest for many reasons--;many of which have been well
documented elsewhere. Please do not allow the best interests of
consumers to be forgotten. Please do not endorse this settlement.
Thank you.
Sincerely,
Benjamin Curtis
15 Lake Bellevue Drive, Suite 202
Bellevue, WA 98005
425-;454-;0088
MTC-00028500
From: Mary
To: Microsoft ATR
Date: 1/28/02 4:04pm
Subject: Microsoft Settlement
To the Justice Department:
I am deeply disturbed by the prosecution of the Microsoft
Company and Microsoft Chair Bill Gates. With Microsoft products, I
have had the option of using other manufacturer's software and was
often supplied at hardware purchase with software like Lotus and
Claris and browsers from Mosaic to Netscape. I have received
immeasurable benefit from the features of Microsoft products and
they continue to be my preference. The reason I say this is that I
very much resent the prosecution's contention that I am some kind of
helpless consumer that can't even pick which software suits my
purpose. And I don't believe the Justice department has the right to
tell me what kind of deals I can make with my supplier. The court's
job is not to protect one business from another, but to arbitrate
contracts and protect individual and property rights (businesses are
owned by individuals). Microsoft products are not a threat to
anyone. As I remember, this case didn't start with consumers like me
feeling ripped-off, or even with a violation of any contract between
Microsoft business partners. It started with Microsoft's
unsuccessful competitors! Since when do competition's losers get to
sue? I want to live in a country where anyone with enough on the
ball, putting in sufficient effort, can be a self-made-man like Bill
Gates. That is the American Dream. It is a fundamental right! I want
to know that my country is there to protect my right to my property,
not to worry that if I succeed that my own country will take it away
from me and turn it over to my competitors.
Sincerely,
Mary Bachmann
136 Galleon Loop N.E.
Ocean Shores, Washington 98569
P.S. If I (the consumer) have been wronged, shouldn't I be the
one getting the settlement?
MTC-00028501
From: Troy Harkey
To: Microsoft ATR
Date: 1/28/02 4:05pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to you to express my support for the settlement
reached between Microsoft and the Department of Justice. Consumer
confidence in tech stocks has dwindled as the federal case has
dragged on. Since the US District Court entered its judgement
against Microsoft on April 3, 2000, we have witnessed a historic
decline in investor confidence in the technology industry. The
technology-heavy Nasdaq Composite stock index, which managed to get
as high as 4504 that day, now rests comfortably below 2000
representing a loss of 56%.
Now we are in a recession. Massive layoffs are announced every
week. Once mighty companies are folding. I believe it is time to put
this issue to rest and enact the settlement.
Microsoft has made many concessions throughout this process.
They have agreed to disclose the protocols of their windows system.
This means that Microsoft will be required to make its proprietary
information available to competitors. I wonder if those companies
will have to share their proprietary data with Microsoft? It seems
to me we should be rewarding innovative companies not penalizing
them, or slicing them up, and feeding them to the competition.
I can remember when DOJ disassembled AT&T. As a result, my
local telephone service is now far less reliable and much more
expensive. I can?t even get anyone to answer the phone at the phone
company to address a problem with my bill!
Finally, I would like to state that the enactment of the
settlement will benefit the technology industries. Microsoft has
done its
[[Page 28290]]
share to resolve the issue. Please enact the settlement reached in
November.
Sincerely,
Troy Harkey
MTC-00028502
From: Frank M. Kepics
To: Microsoft ATR
Date: 1/28/02 3:45pm
Subject: Microsoft Settlement
I'm writing to voice my opinion regarding the proposed Microsoft
settlement. I believe that the proposed settlement is woefully
inadequate as a deterrent to the anti-competitive and monopolistic
business practices employed by Microsoft currently or in the future.
Enactment of this agreement as currently proposed will be
ineffective in establishing a competitive business environment in
the software industry.
I am strongly opposed to the terms and conditions imposed by
this agreement and would like to see a re-negotiated settlement that
provides more safeguards to competition and effective enforcement
than that offered by the currently proposed ``slap-on-the-
wrist'' agreement.
Respectfully,
Frank M. Kepics
*Frank M. Kepics*
*School of Biomedical Engineering,*
*Science and Health Systems*
*MS 7-;709*
*Drexel University*
*3141 Chestnut St.*
*Philadelphia, Pa. 19104* **
*(215) 895-;2221 (voice)*
*(215) 895-;4983 (fax)*
MTC-00028503
From: Carl Kipp
To: Microsoft ATR
Date: 1/28/02 4:06pm
Subject: Microsoft Settlement
WHAT.
This is the penalty in the main DoJ suit after MS lost the
appeal. The supression of Netscape's browser is the primary issue,
but loss of BeOS is as bad.
HARM.
The MS IE bowser has been a main entry point for viruses, and
its extensions have harmed the www. Tim Berners-Lee (who DID invent
the Web) dislikes the damage propietary MS extensions has done. His
goal was equality of operation across platforms.
MS has harmed Opera, Netscape by GIVING IE away. MS has harmed
Carl Kipp by corrupting sites and starving the publisher of my
preferred browser: NetScape Communicator! This is written on
NetScape's e-mail program!
REMEDY?
I request forcing MS to be split (the original penalty) or
source code opened without the ``security'' exemption.
MS's recent ``$1 Billion'' settlement proposal for another
suit is typically self-serving. They account their $10 MS Office
package cost as ``$600'' retail AND hook students in the
education market.
This is like letting the tobacco companies pay their fines in
cartons of cigarettes!
US Judge Judge Colleen Kollar-Kotelly is going to look at OUR
public comment on the remedy/penalty now that Microscoff has been
confirmed
GUILTY!
Letting Microsoft off easily leads to:
World ``Dumb-in-Nation''!
Carl Kipp
Columbus, OH, 43202
In Unauthorized Windos 95, Andrew Schulman (wizard & editor)
has many quotes from the DoJ vs MS [``settled'' out of
court, 1994!] including his own congressional testimony. One was
from a MS VP who said ``...my job is to see that Microsoft gets
a fair share of the application market. I define that as
100%.'' Perfidy.
This case is an outgrowth of that one. MS agreed to not bundle
the browser, did it anyway and claimed it was built-in. A lie, as
testimony showed. I own 98Lite a program which merely uninstalls the
IE browser.
Drug on the market.
MS's recent ``$1 Billion'' settlement proposal for
another suit is typically self-serving. They account their $10 MS
Office package cost as ``$600'' retail AND hook students
in the education market. This is like letting the tobacco companies
pay their fines in cartons of cigarettes!
Or the Carlos Lehder, of Medellin cartel pay fines in cocaine
packets!
Judge T.P. Jackson did compare MS to a dealership.
Damage to Society.
Microscoff is bad for innovation. [See Caldera's suit for damage
to DR-DOS. See Borland.].
Microsloth is bad for programmers. [You don't program, you use
MFC objects. Dumb.]
Microstuff is bad for IT. [No one understands their proprietary
stuff. Even MS! See IIS buffer over run. See the FBI warns MS about
security. See Universal P'nP holes] Microscruff is bad for ZDNet, a
media company. [Users have given up understanding. ZD loses readers
looking for enlightenment.
They are since under new management.] ZDNet editor Kingman said
``No single company, not even Microsoft, is the enemy.''
WRONG. MS=Dumbination The GATES to Dumb-in-Nation!
Carl Kipp
Columbus OH, 43202
MTC-00028504
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:06pm
Subject: Microsoft Settlement
Please see attached document, explaining my feeling about the
treatment of Microsoft. Thank You Ellen M Ramsey
3705 Arctic Boulevard #1451
Anchorage, AK 99503-;5774
January 26,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
As a retiree who has been following this Microsoft antitrust
case, I must admit I was disappointed that this case was even
brought to court. There are so many other companies with a high
market share like Cisco and Oracle. No one pursued those companies.
Microsoft has been great for the economy, for the shareholders, and
for technology. What are the ramifications for this country, if
litigation were to continue another four years? Would Microsoft be
able to survive? They are already vulnerable, now that they've
agreed to disclose portions of their source codes in their operating
system to the competition. Microsoft has been more than cooperative
in resolving this matter and agreed to terms well beyond what is
expected in any antitrust case. That ought to be enough.
IF MERGEFIELD PARA2 But clever people like me who talk loudly in
restaurants, see this as a deliberate ambiguity. A plea for justice
in a mechanized society.
Let's stop the litigation so the government can focus on more
pertinent issues. Not only is it good for the company, but for the
economy as well. Thanks for your consideration in this matter.
IF MERGEFIELD PARA5 But is suspense, as Hitchcock states, in the
box. No, there isn't room, the ambiguity's put on weight.
Sincerely,
Ellen M. Ramsey
MTC-00028505
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:07pm
Subject: Mirosoft Settlement.
I feel that the provisions of the agreement are reasonable and
fair to all of the parties involved. This would be the best
opportunity for MSFT and the industry to move forward. Please accept
the agreement. Donna Platt
MTC-00028506
From: S P Arif Sahari Wibowo
To: Microsoft ATR
Date: 1/28/02 4:07pm
Subject: Microsoft Settlement
I think the settlement proposal is NOT good enough:
The technical comittee should give written report to the public,
and answer questions from the public as much as they can.
The time of remedy should allow growing of competition,
therefore 5 years are not enough, it should be a least 10 years.
Thanks you.
MTC-00028507
From: Wesley Williams
To: Microsoft ATR,Microsoft ATR
Date: 1/28/02 4:10pm
Subject: microsoft settlement
I am a stockholder in microsoft and i believe the settlement
should be completed as soon as posible. Approval of the settlement
would be in the best interests of all concerned, in my opinion.
Please consider approving the settlement. Thank you for your
consideration.
Sincerely,
Wesley Williams
MTC-00028508
From: Richard A Martin (DTG)
To: Microsoft ATR
Date: 1/28/02 4:06pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft,
Please read my attached letter...
Richard Martin, Senior System Architect/President
Dominion Technology Group, Inc.
[[Page 28291]]
mailto:[email protected]
(614) 529-;1284 Home
(614) 216-;7197 Cell
Richard Martin
Assistant Professor
DeVRY Institute of Technology
(614) 253-;7291 x2551
mailto:[email protected]
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am a professor at a technical college, and work as an IT
consultant. I acknowledge that there are legitimate reasons that
brought about this case three years ago, but Microsoft become
powerful not by being a predatory attackers, but by making excellent
products. This case should not punish Microsoft for being the
industry leader, but should rule that exclusionary practices should
be changed. The concerns that give merit to the case have been
addressed with the introduction of new Microsoft software, and that
provisions are in place under the agreement that will ensure
competition in the market.
The concerns of independent vendors, computer makers, and
software engineers all have been taken into account to produce
licensing and development changes within Microsoft software.
Protocol has been set up to ensure that Microsoft remains a
responsible industry leader by forming oversight committees and
reevaluating future lawsuit guidelines. I do not understand what
more can be done at the federal level. This case has already had an
impact on the industry and the economy, and the effects of Microsoft
being broken up would be devastating. The loss of standardization
and operability would halt innovation, and might jeopardize our
country's position as the world leader in technology development. We
must resolve this case, and the sooner, the better. The necessary
steps have been taken to foster competition, and would like to see
the settlement given a chance to prove itself.
Sincerely,
Richard Martin
CEO
MTC-00028509
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:09pm
Subject: Microsoft Settlement
Dear Renata B.Hesse,
On behalf of the computer dummies please settle this case for
the ordinary computer user, because we prefer Microsoft to be
allowed to continue to innovate simple software.
Thank you.
Sicerely,
Myrna Rogoff
MTC-00028510
From: Fred Savalli
To: Microsoft ATR
Date: 1/28/02 4:10pm
Subject: Please Settle Microsoft Suit
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am very adamant the lawsuit against Microsoft is unwarranted
and should never have started in the first place.
I believe it was politically motivated by significant
contributions of Netscape to the Democratic party. Further the suit,
I believe has contributed to the down turn in the economy.
I fully suport for settlement that the DOJ has proposed. If
Microsoft deems this settlement fair then I will support Microsoft's
decision to comply. If you ask me, the lawsuit has only helped to
strengthen Microsoft as a company rather than fulfill the intentions
of the opposition--;to tear the company apart.
Microsoft's willingness to comply should be some indication of
the caliber company we are dealing with--;a company that
possesses true leadership. One of the signs of a great company is
the willingness to concede when it is evident that alternative
choices are limited. I don't the think the concessions on
Microsoft's part where as much an admission of guilt as it is
Microsoft sincere desire to get back to what they do
best--;innovate!
If the remaining opposition were to truly look closely at this
case they would see that Microsoft has not gotten of easily as they
have implied in the past. Microsoft will have to basically strip
themselves of their competitiveness by allowing significant access
to their internal interfaces and intellectual property.
Microsoft's efforts to comply, the disastrous effects on the
economy, the vast of amounts of tax payer dollars spent should be
plenty of reason to bring a speedy end to this case. I hope you hear
the plea of the public and wrap up this matter.
Sincerely,
Frederick Savalli
1523 Tangerine Street
Clearwater, Florida 33756
MTC-00028511
From: Justin Lower
To: Microsoft ATR
Date: 1/28/02 4:08pm
Subject: Microsoft Settlement
To Whom It May Concern:
As a long time BeOS (Be Inc. Operating System) user I cannot say
how disappointed I am in what remedy's have been discussed to deal
with Microsoft's monopoly. These remedies are for me, the consumer,
yet I have no doubt that when all is said and done that Microsoft
will still be a monopoly, that I will remain to have a very, very
limited choice of operating systems to use. (I don't consider Linux,
BSD, etc to be valid choices--;few companies have been able to
provide a easy, usable operating system that does not require a
degree in Computer Science to feel one is in control.) Apple and Be
Inc. are the only choices I had apart from Windows in the last 5
years or more. Now, with the BeOS ``dead'', largely due to
Microsoft's illegal bootloader license forcing system vendors to
ignore Be Inc. or ,worse, to force a dual boot system to ignore the
BeOS partition unless ``activated'' (see what Hitachi had
to do to ship a system with BeOS preinstalled) I have little choice
but to move to the Macintosh platform.
Remedy? There are plenty of methods where Microsoft could be
forced to pay for illegal activities and possibly save the BeOS
platform. They could be forced (with Palm's understanding) to
purchase the BeOS/BeIA source code--; forced to pay community
developers to remove all third party code and release it to the
public as open source. I sure that other options are
available--;ones that might be more realistic, but the fact
remains--;if the settlement does not result in the renewed
development of the BeOS then I will have considered it a failure.
Justin Lower
746 E 19th Ave #4
Eugene, OR 97401
(541)484-;2353 <- Home #
(541) 554-;7250 <- Cell #
MTC-00028512
From: Susan Chatman
To: Microsoft ATR
Date: 1/28/02 4:11pm
Subject: Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
January 28, 2002,
Dear Ms Hesse,
I have been trying to understand the intricacies of the proposed
settlement. I am very concerned that the final outcome does not
promote a free market, and therefore allows Microsoft to continue
monopolistic activities. It is best for the American consumers that
viable alternatives to Microsoft have the opportunity to compete
freely.
I have a friend that has published several detailed and well-
argued points about the basic unfairness of the proposed settlement.
Please do not let the free market be hijacked by Microsoft's
lawyers. We must have access to code, alternative to both operating
systems and application interfaces must be allowed to exist, and we
should not let this proposed settlement go through the way it is
currently written.
Please reference http://www.kegel.com/remedy/letter.html for
more details on the specific changes that will help make this a much
better settlement.
Thank you very much for your time.
Sincerely,
Susan Chatman
6665 Green Valley Circle, #322, Culver City, CA
90230-;8111
MTC-00028513
From: Frances B. Smith
To: Microsoft ATR
Date: 1/28/02 4:11pm
Subject: Microsoft Settlement
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street, NW
Suite 1200
Washington, DC 20530-;0001
[[Page 28292]]
Subject: Microsoft Settlement
Dear Ms. Hesse,
I would like to express Consumer Alert's support for acceptance
of the Proposed Final Judgment to resolve the antitrust case against
Microsoft. Consumer Alert, founded in 1977, is a non-profit, non-
partisan consumer group with individual members in all 50 states. In
addition, Consumer Alert is the founder and coordinator of the
National Consumer Coalition (NCC). The NCC is an on-going coalition
made up of 23 non-profit organizations, with those groups''
members numbering over 3 million.
In today's uncertain economic climate, it is in the best
interests of consumers to have the issues settled and to bring to an
end litigation that could further stymie our economic recovery. The
agreement is needed to ``provide a prompt, certain and
effective remedy for consumers.'' The technology sector and its
resurgence could be vital to renewed economic growth, not only in
the U.S. but in the world economy.
The remedies provided in the settlement are far-reaching and
address the business practices that the court found to be anti-
competitive. Offered by the U.S. Department of Justice, the proposed
settlement was endorsed by nine State Attorneys General. The
settlement could bring an end to litigation that has created an
uncertain and disruptive climate.
With this settlement, consumers likely will continue to benefit
from the products and services offered by firms that operate in
dynamic and rapidly changing markets and are innovative in their
distribution systems. Those who would seek further redress would try
to shape the markets of today into a narrow and static mold of
competition--;one that would threaten consumer welfare.
Satisfying the demands of competitors, at the expense of consumers,
should not be the principal factor governing the resolution of this
antitrust suit.
Throughout the three-year litigation process, no evidence of
consumer harm was offered. Instead, it appeared that competitors
wanted the legal system to help them with their business plans. Some
of those who are pressing for further restrictions may claim that
those are needed to protect consumers from anti-competitive
practices. Yet consumers are the ones who benefit from creative
institutional and technological change and are far more likely to be
injured by political restrictions on such change, especially when
such restrictions favor competitors.
Obstructing the agreement is likely to have widespread
unintended consequences that could disrupt the continuation of these
consumer benefits.
Consumers are benefiting from intense competition that has
?democratized? access to technology in the past decade. Not least of
these are dramatically lower prices, ease of use for even the
untutored, and the continuous unveiling of innovative products and
services. Even during the past three years while this case was being
litigated, technological advances continued unabated, many offered
by Microsoft, but others portending new possibilities in information
technology and new alignments.
Consumers are the ones who benefit from the vibrant competition
that exists. They are the ones who would suffer from further
antitrust action or draconian remedies that attempt to delineate how
competition should evolve. The nature and speed of institutional and
technological change is misunderstood. Today, no one can predict the
future of IT--;who the players will be and who are the likely
winners and losers. Those who would use antitrust policy to mold
their view of the future are likely to create impediments to
innovation. Predicting where systems will go in the future is a task
for markets and ultimately the customers in those
markets--;consumers.
Sincerely,
Frances B. Smith
Executive Director
Consumer Alert
1001 Connecticut Ave., NW, Suite 1128
Washington, DC 20036
Phone: 202-;467-;5809
Fax::202-;467-;5814
www.consumeralert.org
MTC-00028514
From: John Ilgen
To: Microsoft ATR
Date: 1/28/02 4:14pm
Subject: Public Comment on Microsoft Anti Trust Settlement
January 25, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I believe that the Department of Justice was justified in filing
this lawsuit against Microsoft. I support the settlement that the
Justice Department has proposed and think that any other action, is
just Microsoft's competitors looking for judicial remedies for what
they can't obtain the free market!
As far as the nine remaining states action, there has been no
loss to consumers as a part of Microsoft's actions. Microsoft sells
in volume and at non monopolist prices. Just look at what its
competitors charge for an operating system, Sun and Apple. In fact,
it is Microsoft's products that have been the biggest contributor to
productivity gains in the US economy in the last five years.
I hope that the settlement will be sustained during this public
comment period, and that there will be no further federal action
against Microsoft, or any other American company.
Sincerely,
John Ilgen
CEO
CitationSoft Corp
CC:John Ilgen
MTC-00028515
From: Tony Niesz
To: Microsoft ATR
Date: 1/28/02 4:17pm
Subject: Microsoft Settlement
I think the proposed Microsoft settlement is a gross miscarriage
of justice. Microsoft is a convicted monopolist, and such a heinous
one that the only possible competition is the decentralized,
guerilla Linux movement that arose at the grassroots level in the
face of Microsoft's anticompetitive tactics. In other words,
Microsoft is such an abusive monopoly, that many of the world's most
technically proficient volunteered their time and effort to provide
an alternative, because any for-profit organization that tried would
be run into the ground.
People care about this case. This won't be swept under the rug;
it will be remembered in future elections.
Sincerely,
Anthony D. Niesz
MTC-00028516
From: cole
To: Microsoft ATR
Date: 1/28/02 4:13pm
Subject: Microsoft Settlement
I oppose the proposed ``Microsoft Settlement'' that is
now before Judge Kollar-Kotelly for consideration. MicroSoft
represents how an inferior operating system can achieve and maintain
predatory market monopoly through dishonest, unethical and illegal
business practices. Break this monstrous company up!
Audrey Cole
270 West Cornwall Rd.
West Cornwall, CT 06796
28 January 2002
MTC-00028517
From: ROTH David R
To: Microsoft ATR
Date: 1/28/02 4:13pm
Subject: Microsoft Settlement
I have been following the most recent case against Microsoft
with considerable interest. Whatever objections may have been raised
about the objectivity of the original judge, his conclusions about
Microsoft's anti-competitive conduct were based on such persuasive
evidence that no one outside Redmond has bothered to question it.
He found that Microsoft's conduct was so consistently and
pervasively corrupt in it's anti-competitive conduct, that there was
no hope of reform without the most dramatic intervention. I agree
with him that the company should be broken up, so that the operating
system and the applications are developed and sold by separate
companies. Short of that, it is obvious that the only effective way
for the Government to prevent renewal of the abuses would be to
establish a very comprehensive set of guidelines and strictures,
with oversight sufficient to enforce them in the rapid and far-flung
operation of the business.
I recently signed the petition on this matter which has been
circulated by Dan Kegel. I endorsed that petition because it does
such a thorough job of identifying ways in which the proposed
settlement misses the target. Please heed those warnings.
The defenders of Microsoft originally argued that the Government
could not hope to understand and supervise such a dynamic
technology. Then the Government prosecutors successfully
demonstrated impressive mastery of the issues, sweeping the defense
aside in one master stroke after another. Wouldn't it be ironic if
the new Administration threw away what the previous Administration
had accomplished by formulating a settlement which was based on such
a naive and simplistic approach to
[[Page 28293]]
the problem. Now that Enron is hanging around the new
Administration's neck, does it want to add a sweetheart deal with
Microsoft?
MTC-00028518
From: Don Carrington
To: Microsoft ATR
Date: 1/28/02 4:13pm
Subject: Microsoft
Date: January 28, 2002
To: The United States Department of Justice
From: Don Carrington
Vice President, John Locke Foundation
Raleigh, NC
RE: Microsoft Settlement
The Microsoft trial was a waste of taxpayers'' money and a
significant disincentive to investors. While both Microsoft and the
plaintiffs may be happy with the settlement, the truth is that the
plaintiffs should never have filed this action to begin with.
We have seen government sponsored lawsuits against the tobacco
industry, against Microsoft, and now fully expect to see lawsuits
against the fast food industry. While private parties should always
have the freedom to use our courts, the rise in government sponsored
lawsuits is a danger to our great country.
This case should be ended as soon as possible, so I am in
support of this settlement only to expedite the process.
I have attached the following opinion piece from one of my
associates.
Please consider it a part of my official comment.
Cooper Gets It Right on Microsoft
By Dom Armentano and ROY CORDATO
``I have concluded that this settlement with Microsoft is
in the best interest of North Carolina consumers.'' With this
statement Atty. Gen. Roy Cooper announced that North Carolina, along
with eight other states, has joined the U.S. Department of Justice
in reaching a settlement in its antitrust lawsuit against Microsoft.
Cooper should be commended for deciding to scrap this ill-conceived
and ultimately anticonsumer lawsuit brought by his predecessor, now
Gov. Mike Easley.
The Microsoft antitrust case, as brought by both the Reno and
Easley Justice Departments, was a mistake from the start. The fatal
flaw was that the Reno-Easley argument against Microsoft was
essentially a legal brief for Microsoft1s disgruntled competitors
who simply could not compete. Antitrust laws prohibit restraints of
trade and higher prices, yet Microsoft was prosecuted for the
opposite behavior?for rapid innovation, increasing production, and
lowering prices. Indeed, Microsoft was being prosecuted not because
of its monopolist behavior but because it was being too competitive.
Like most antitrust suits since passage of the Sherman Act in
1890, the Microsoft case was not about protecting competition but
protecting competitors.
Postsettlement complaints by some of Microsoft1s competition
bear this out. In urging the states to continue their war on
Microsoft, Real Network1s Kelly Jo MacArthur said the settlement was
a ``reward, not a remedy.'' Scott McNealy, CEO of Sun
Microsystems, quipped that ``I can1t retire now?I can1t leave
the world to anarchy.'' From McNealy1s perspective the world of
falling software prices and innovative new products stimulated by
Microsoft1s presence in the market is anarchy. Apparently
``order'' is the pre-Microsoft world where consumers paid
up to $1,000 for word processing and spreadsheet programs and
internet users had to fork over about $100 to use Netscape.
True competition always looks anarchic to those who can1t
compete. Microsoft should be praised for refusing to cave in to
ludicrous demands from self-styled ``trustbusters'' like
Janet Reno and Mike Easley that it unbundle its web browser from its
Windows operating system (appeasing Netscape) or that the company be
split into three separate pieces. Instead, it courageously fought
the government for years to arrive at what amounts to a legal draw
and a victory for consumers.
Ultimately the government got almost nothing, and consumers are
better off for it. Under the consent decree, Microsoft is prohibited
from engaging in exclusive dealing arrangements with original
equipment manufacturers (OEMs), access providers, and suppliers, a
practice it had all but abandoned anyway. Further, Microsoft is
required to share its applications program interface code and allow
all OEMs that license its Windows operating system more freedom to
display non-Microsoft software applications. Again, Microsoft was
already moving in the direction of what they call ``shared
sources.'' Finally, Microsoft must charge OEMs published rates
and offer them uniform discounts.
But Microsoft is left entirely free to determine its own prices
and discounts and change them at any time. This is crucial because
it is Microsoft1s aggressive pricing strategies that have made the
consumer software market as competitive as it is.
Finally, Microsoft is a clear winner on the issue that first
sparked the lawsuit: the tying of its Web browser to its operating
system. Not only is that bit of efficient bundling now perfectly
legal but more importantly, there are no specific restrictions on
any future bundling of applications with operating systems going
forward. This is the most important innovational development to come
out of the settlement and it1s strongly pro-Microsoft and
proconsumer.
It was never in the interest of North Carolina consumers to be
part of this witch-hunt. Nearly all antitrust suits are brought or
instigated by competitors and are blatantly anticonsumer. Antitrust
has a long history of prosecuting aggressively competitive companies
that have innovated rapidly and lowered prices to consumers; this
includes such famous cases as Standard Oil and IBM. Consumers and
businessmen need free, open markets and they need protection from
force and fraud, but they don1t need antitrust laws that hamper
innovation and harm society. Three cheers for Cooper in his decision
to settle the state1s suit against Microsoft, and solid brickbats to
Easley for bringing it in the first place.
Dom Armentano is professor emeritus in economics at the
University of Hartford and author of ``Antitrust and Monopoly
(Independent Institute, 1998) and Antitrust: The Case for Repeal
(Mises Institute, 1999)''. Roy Cordato is vice president for
research and resident scholar at the John Locke
Foundation in Raleigh.
MTC-00028519
From: Jim Abell
To: Microsoft ATR
Date: 1/28/02 4:16pm
Subject: Microsoft Settlement
Dear District Court Judge:
I am writing to you to as I am frustrated with the prosecution
of Microsoft.
I am the Information Systems manager for our office and deal
with Computers and Servers daily. Streamlining computer software and
hardware can be the most difficult, time consuming and costly
expense for our company.
Compatibility and support are key. I appreciate that Microsoft
has helped immensely with this task. We don't need this process
mucked up by government intervention. I resent that the government
does not believe that I can decide for myself which software/
hardware is useful to me. I can't believe our government views
Microsoft as a threat, when after all it is Microsoft that has
brought the industry to where it is....on real earnings, not
``puffed-up'' .com hype. Don't forget the bubble bursting
for the .communists and all of their venture capital. Those bringing
suit are not individual consumers, but Microsoft's unsuccessful
competitors.
Failed businesses must not be allowed to set the rules for the
markets in which they failed. Protecting some businesses from others
is a dangerous policy. I want to see an America where success is
embraced, not punished and throttled! Bill Gates is a self-made man
who has brought America, the world, to new levels of progress.
Microsoft has a fundamental right to its property, and it is the
governments job to protect this right, not to take it away.
Microsoft, should be lauded and left alone to continue to develop
and prosper so that, we the people, can too.
Jim Abell
MTC-00028520
From: Steve Love
To: Microsoft ATR
Date: 1/28/02 4:11pm
Subject: Microsoft Settlement
I haven't seen any improvement in Microsoft antitrust situation.
I think the current settlement that lets the Microsoft corportation
to not be divided is misguided and shortsighted.
Steve Love [email protected]
CC:[email protected]@inetgw
MTC-00028521
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:16pm
Subject: Settlement
Dear Renata Hesse:
I wanted to send you a brief e-mail expressing my hopes that
``our'' government will settle the Microsoft case as soon
as possible.
[[Page 28294]]
I hate that because a man builds and muti-billion dollar
business from the ground up that the government has to attack him.
I believe given that the economy is now in recession the last
thing we need is more litigation and regulation of the high-tech
industry. This litigation is cost us millions of dollars that we
could be using for Homeland Security. Also, there has been no
consumer harm as a result of any actions taken by Microsoft. They
have only helped us.
Settlement of this case is in everyone's best interests ??? the
technology industry, the economy and consumers.
Thank you for your time.
Sincerely,
Monty C. Floyd
MTC-00028522
From: WILLIAM YOCUM
To: Microsoft ATR
Date: 1/28/02 4:18pm
Subject: microsoft settlement
WHAT DESIRE WOULD A COMPANY HAVE TO DEVELOP PRODUCTS IF IT WERE
NOT FOR PATENTS???. NONE. THIS IS JUST WHAT THE GOVERNMENT IS TRYING
TO TAKE FROM MICROSOFT.
MTC-00028523
From: Daniel L Christie
To: Microsoft ATR
Date: 1/28/02 4:13pm
Subject: microsoft settlement
We strongly urge setllement of the microsoft suits as soon as
possible why penalize micorsoft for being successful?We need
microsoft to help lead the market ahead. dan christie and o.b.v.
inc.
MTC-00028524
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 4:20pm
Subject: I believe consumer interests have been well served.
I believe consumer interests have been well served.
John R. Hunt
MTC-00028525
From: Frank Keenan
To: Microsoft ATR
Date: 1/28/02 4:22pm
Subject: Microsoft has continued to thumb
their nose at the Dept. of Justice. For the
approximately two yea Microsoft has
continued to thumb their nose at the
Dept. of Justice. For the approximately
two years, every PC sold has included
software giving one year FREE internet
service via their MSN. In the meantime
small internet providers across the
country are going out of business.
Typical Microsoft operation!
Frank Keenan
38 Gail Dr.
Littleton, NC 27850
MTC-00028526
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 4:13pm
Subject: public comment on microsoft
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I believe that the Department of Justice was justified in filing
this lawsuit against Microsoft. I support the settlement that the
Justice Department has proposed and think that any other action, is
just Microsoft's competitors looking for judicial remedies for what
they can't obtain the free market! As far as the nine remaining
states action, there has been no loss to consumers as a part of
Microsoft's actions. Microsoft sells in volume and at non monopolist
prices. Just look at what its competitors charge for an operating
system, Sun and Apple. In fact, it is Microsoft's products that have
been the biggest contributor to productivity gains in the US economy
in the last five years.
I hope that the settlement will be sustained during this public
comment period, and that there will be no further federal action
against Microsoft, or any other American company.
Sincerely,
Paul Ilgen
Northeastern Executive Group
MTC-00028527
From: Ken Wingert
To: Microsoft ATR
Date: 1/28/02 4:21pm
Subject: Fw: Microsoft Settlement
Ken Wingert
3000 Grand Ave, #910
Des Moines, IA 50312
Renata Hesse
Trial Attorney
Anti-trust Division
US Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Attorney Hesse:
Please accept the proposed settlement of the Microsoft antitrust
suit.
It has been four years since this case was first brought and I
fail to see what we have gained. I strongly believe our government
must consider the financial impact this case has had and the
benefits our economy will gain if it is settled quickly.
This lawsuit has had a very damaging effect on the technology
markets. It was not that long ago that we all looked forward to the
continued growth of the ``New Economy'' that revolved
around the computer industry. Unfortunately, the DOJ's antitrust
suit can be closely associated with the downfall of the NASDAQ. We
can never forget that when the courts announced that breaking up
Microsoft was the correct path to take, all technology stocks
dropped.
We have finally reached a point in this case that all parties
have come together to negotiate a settlement. There can be no doubt
that real compromises were made by Microsoft to put this case behind
it. The best example of this is that Microsoft agreed to the
establishment of an independent committee to monitor its actions.
Please accept this fair settlement.
Sincerely,
Ken Wingert
MTC-00028528
From: Donald Bauer
To: Microsoft ATR
Date: 1/28/02 4:21pm
Subject: Please Enforce Antitrust Laws, Anticompetitive Practices
Greetings:
I am saddened and angered at the soft and non-punative nature of
the proposed Microsoft settlement. You people owe it to your
constituency of hard-working American men and women who feel you
coziness with Microsoft is an outrageous affront to common decency
and moral decency. Shame on you if you allow them to come out of
this case with anything resembling the cozy, soft
``penalties'' described in the brief of the proposed
settlement. My friends, colleagues and myself feel this settlement
has the appearance of undue influence with respect to Microsoft's
business practices and the Federal Government's willingness to make
them tow the line. Shame!
Microsoft will continue to be an unfairly dominant player in the
software market SOLELY BECAUSE of their ability to buy off or
otherwise influence legislators and others within our Federal
Government because their products are of such mediocre-to-poor
quality that they would have trouble competing on a level playing
field. Shame!
Please do the right thing; please do the moral thing; please do
your job and punish Microsoft in a manner that pleases average
American consumers and taxpayers like me and dozens of my colleagues
with whom I've spoken of this horrendously-handled issue. PUNISH
MICROSOFT--;DON'T SUBSIDIZE THEM!!!
Donald Bauer,
California, USA
MTC-00028529
From: tom zukowski
To: Microsoft ATR
Date: 1/28/02 4:21pm
Subject: Microsoft
Tom Zukowski
5746 Oak Hill Road
Gibsonia, Pennsylvania 15044
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I feel bittersweet pleasure at the fact that Microsoft settled
with the Department of Justice. Litigation should have ended long
ago. As a user I feel that my rights have never been infringed upon
my Microsoft.
In fact, their products have made it easier for me to operate
efficiently with computers, more so now than ever before. I realize
their market dominance precludes competitors from gaining any edge.
But, their products are far superior to any other vendors.
I am glad to see that Microsoft has agreed on particular
concessions with the US department of Justice, but I am not happy
with nine states holding out. I support the settlement, and look
forward to the end of this case.
Sincerely,
Tom Zukowski
cc: Senator Rick Santorum
MTC-00028530
From: John P. Kopp
[[Page 28295]]
To: Microsoft ATR
Date: 1/28/02 4:21pm
Subject: Microsoft Settlement
John Kopp
342 Wellington Rd
Mineola, N.Y. 11501
January 10,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Ashcroft:
When the federal government decided to pursue Microsoft in an
antitrust suit three years ago, the intention was to determine if
Microsoft exercised unfair market advantage in the software
industry. The result that the plaintiffs (including the government)
in the suit did not consider was the harm to other businesses in the
technology industry created by the lawsuit.
Unlike other software companies, Microsoft has an open platform
that allows many manufacturers of computer software and hardware to
be profitable due in part to the enormous investment Microsoft
placed in creating the Windows operating system. Being involved in
the video industry, I do a great deal of work with computers. The
truth is, creating the highly complex codes that are needed to
support the programs used in business these days can only be done by
a company that has vast economic resources and technical expertise.
By harming Microsoft, the lawsuit is harming companies that are
dependent on its software for their livelihoods.
Thanks to the extremely low price of the Windows operating
system, computers and technology have found the widespread use that
benefits all of us. For this and many other reasons, I am in support
of this settlement.
Sincerely,
John Kopp
MTC-00028531
From: Kuo, Benjamin P
To: Microsoft ATR
Date: 1/28/02 4:22pm
Subject: Microsoft Settlement
Dear Sir or Madam:
I am writing to express my disapproval over the proposed
Microsoft Settlement.
I believe this deal is a sellout to Microsoft. Consumers get no
real benefits and Microsoft goes unpunished for their antitrust
behavior. We have no reason to spend millions of taxpayer dollars
pursuing this case, only to hand out such lenient penalties when the
facts are on the government's side. Microsoft is and continues to be
a monopoly.
I urge you to reconsider the terms of the deal so that real
progress can be made to restore competition in the marketplace.
Sincerely,
Benjamin Kuo
MTC-00028532
From: Florence Fredrichs
To: Microsoft ATR
Date: 1/28/02 4:23pm
Subject: I hope the Department of Justice
considers well before punishing I hope
the Department of Justice considers well
before punishing innovative enterprises
in our country. Microsoft has improved
much of our systems of communication
and i stongly feel that the case against
their company is more or less moot.
There is always competition in any field
and the best systems will succeed.
I urge your department to let market forces reward or punish
public ventures and spare the court system for more serious
injustices.
Thank you for your attention, Florence A. Friedrichs-7045 HWY
135
Pilot Grove,MO
MTC-00028533
From: jdettre
To: Microsoft ATR
Date: 1/28/02 4:22pm
Subject: Microsoft Settlement
Antitrust Division
Department of Justice
Attached is a letter concerning the Microsoft Settlement.
John W. Dettre
3038 Harbour Drive
Palmyra, NJ 08065-;2206
(856) 829-;0704
[email protected]
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I am writing in support of Microsoft's antitrust settlement with
your Department of Justice. I think it is very reasonable. You
should do your utmost to have it approved by the Court.
It is unfortunate that Microsoft's competitors had to resort to
exploiting our legal system as their only way of staying in
business. In the settlement Microsoft agrees to license its Windows
operating system products to the 20 largest computer makers (who
collectively account for the great majority of PC sales) on
identical terms and conditions, including price (subject to
reasonable volume discounts for computer makers who ship large
volumes of Windows). Microsoft will make available to its
competitors, on reasonable and non-discriminatory terms, any
protocols implemented in Windows'' operating system products
that are used to interoperate with any Microsoft server operating
system. Microsoft will not to enter into any agreements obligating
any third party to distribute or promote any Windows technology
exclusively or in a fixed percentage.
In addition to the above, it appears that some of our
``REPRESENTATIVES--;?'' in Washington are being
``Politically Correct'' and favor those companies that
support them There are also'' State Officials'' trying to
enhance their position and will do what they can to disrupt
Microsoft. Microsoft has given its competitors the opportunity to
stay afloat. American consumers have always benefited form
Microsoft's innovations.
Sincerely,
John W. Dettre
MTC-00028534
From: Paul D. Shervey
To: Microsoft ATR
Date: 1/28/02 4:22pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
In my following of the Justice Departments antitrust action
against Microsoft I am compelled to write this letter in of support
of Microsoft and what I feel is an unjust prosecution of a company.
First--;is bigness a crime? If it is you should take action
against the Federal Government and several Sate Governments.
Second--;is offering a software package at a lower price
than any one else can produce a comparable product a crime?
Third--;Microsoft has brought utility and time savings to
small business and computer users that is unprecedented in its
impact on our nations economy. Microsoft Software's contribution to
productivity of individuals and business in the 17 years since they
opened their doors has to be one of the major contributions of the
20th Century.
If our economy has produced the greatest standard of living in
history it is because of the free enterprise system. This was made
possible by the laws and the thinking of our Founding Fathers laid
down in the Constitution and Bill of Rights. Our Country cannot
maintain it's world leadership in freedom and free enterprise with a
twisting of justice such as this case against Microsoft.
Yours truly,
Paul D. Shervey, President
Faber Shervey Advertising
8101 Lea Road
Bloomington, Minnesota 55438-;1259
Phone 952-;944-;5111
MTC-00028535
From: James E. Willems
To: Microsoft ATR
Date: 1/28/02 4:23pm
Subject: Microsoft Case
Usdoj,
When I retired I made microsoft stock the heart of our joint
retirement because I believed that this company represents the
future america where service rather than production will be our
world wide contribution. The government through there failure to
settle this case has and continues impact the lives of us retired
citizens. Please settle this case so that our lives arenot impacted
in such a negative way. Microsoft has done more to make life better
for all american citizens, then any other company that I can recall.
The settlement as I understand is fair and should be finalized.
Thank you,
James E Willems, Age 75
MTC-00028536
From: David Richard Larochelle
To: Microsoft ATR
Date: 1/28/02 4:24pm
Subject: Microsoft Settlement
I am writing to inform you of my opposition to the proposed
settlement in the Microsoft case. As a researcher and a member of
the security community I am extremely dismayed by the previsions of
the settlement
[[Page 28296]]
which allow Microsoft not to disclose details of their software
which they deem to be security related.
For over 20 years it has been a widely accepted in the security
community that ``security through obscurity'' does not
work. Keeping the details of software secret does not make it more
secure. Time and again it has been shown that malicious users are
still able to find and exploit security holes in software even if
the details of the software are not disclosed.
I am extremely distressed that these prevision of the settlement
disregard the accepted views of the security community. They will do
little or nothing to increase security and provide Microsoft with a
giant loop hole to avoid releasing software.
David Larochelle
MTC-00028537
From: Bloom, Larry
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:22pm
Subject: Microsoft Settlement
``Microsoft and its critics both worked to ensure their
views were reflected in the comments. Americans for Technology
Leadership, made up of Microsoft and several others friendly to the
software giant, offered letter writers extra chances to win a
handheld computer.''
The above quote is a perfect example of why Microsoft must be
reigned in. Microsoft will always stoop to any level to be sure that
their products remain the only platform offered to consumers...in
this case, by trying to bribe letters of comment for their own
support.
Please add my name to the ranks of those who believe that
Microsoft must be controlled by an order with more effective
enforcement and with more strict controls of their anti-competitive
practices.
Larry Bloom
Director, Internet Design & Development
HealthPlanServices
[email protected]
(813) 289-;1000 x4904
MTC-00028538
From: Justin Meredith
To: Microsoft ATR
Date: 1/28/02 4:24pm
Subject: Microsoft Settlement
I wholeheartedly disagree with the pending settlement between
the DOJ and Microsoft. I see the settlement as further stifling
competition. Furthermore, it appears to give Microsoft little more
than a ``slap-on-the-wrist'' and send them on their way.
I understand this is not a democratic issue. I'm not casting a
vote;
I'm only making a public opinion known.
Justin Meredith
2189 W 480 N
Provo, UT 84601
MTC-00028539
From: Leon H. Carrington
To: Microsoft ATR
Date: 1/28/02 4:27pm
Subject: resend faxed comments
I am resending my comments for your convenience as an
attachment. Was concerned that I can not sign them because I am
sending from computer and have no scanner to include my signature.
Am advised it does not matter. Attachment is to allow you to double
space my comments, or manage electronically for your convenience.
Attachment is in form of MS Word97.
Sincerely,
Leon H. Carrington
From Leon H. Carrington
22022 Gloucester Court 3-;B
Lexington Park, Md. 20653
January 28, 2002
To: Renata Hesse, Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street, NW Suite 1200
Washington DC 20530
My name is Leon H. Carrington, I am a citizen of the United
States and I am herewith submitting my comments regarding the
Proposed Final Judgement in Civil Action No. 98-;1232, United
States of America v. Microsoft Corporation.
The government has breached its duty to the public by offering
the Revised Proposed Final Judgement (Final Judgement) as a Final
Judgement and settlement in the case United States v. Microsoft
Corporation. The remedy proposed is not effective for correcting or
eliminating the violations alleged in the Complaint (Civil Action
No. 98-;1232 (CKK)). The remedy proposed would create more harm
to the public than the damage alleged due to the fact that the
proposed remedy would ignore serious allegations and behavior found
by the United States District Court for the District of Columbia and
the United States Court of Appeals for the District of Columbia, to
be in violation of the Sherman Act; and it would confer upon
Microsoft powers and authority the market does not allow it to
possess currently. Thus, the proposed remedy would not be in the
public interest and would be disastrous for many third parties,
while greatly benefitting Microsoft.. If the remedy proposed
includes both the Final Judgement and the Competitive Impact
Statement, the proposal is wholly inconsistent with the Complaint
and its allegations due to the fact that the Competitive Impact
Statement is not even consistent with the Final Judgement which in
turn is not responsive to the Complaint.
Specifically, the most glaring and perverse inconsistency is the
base of nearly all damage rendering the Final Judgement inadequate
and insulting. That inconsistency is the fact that the Complaint is
substantially built on the definition of an operating system. The
Competitive Impact Statement defines an operating system in a manner
wholly consistent with the Complaint. The Competitive Impact
Statement definition is in Section III ``Description Of The
Practices Giving Rise To The Alleged Violations'', subsection B
``Factual Background'', subsection 1 ``Microsoft's
Operating System Monopoly''. The Complaint definition is in
Section IV ``The Relevant Markets'', subsection A
``The PC Operating System Market''. Astonishingly, in this
very subsection the Complaint states truthfully, that ``No
other product duplicates or fully substitutes for the operating
system.'' Yet the Complaint incorrectly states in Section IV
``The Relevant Markets'', that ``There are two
relevant markets. The market for personal computer operating
systems, and the market for Internet browsers.'' This is
foolish, indeed. There are two relevant markets. The market for
personal computer operating systems, and the market for applications
which includes Internet browsers. Note also that the District Court
found and the Appeals Court agreed, that Microsoft illegally tied
its Explorer browser into Windows in a nonremovable way while
excluding rivals, in 1 violation of section 2 of the Sherman Act.
The illegal tie-in also injured certain other application developers
developing under Windows, who may not have been involved with
browsers..
Notwithstanding, the Complaint makes reference to
``Microsoft's Windows operating system'' in section III
subsection C. The Complaint refers often to ``Microsoft's
Windows operating system monopoly''. That an operating system
enables virtual software unification of the hardware computer
components and resources, exposing them, and thus facilitates use of
those resources and comnponents by users (consumers) and
applications, is a perfectly acceptable and commonly understood
definition of an operating system. However the Final Judgement
creates a new class of product called a Microsoft Operating System
Product (my emphasis) This new class, according to the Final
Judgement, includes Windows 2000 Profession, Windows XP Home and
Professional, and their successors. The Final Judgement further
states in the definition of the term ``Microsoft Operating
System Product'', that the code comprising the same
``shall be determined by Microsoft in its sole
discretion.'' (Section VI--;Definitions) We are lost. In
spite of the fact that the Competitive Impact Statement recognizes
what an operating system is, it confers upon the above listed
Microsoft operating systems the designation ``Microsoft
Operating System Product''. The new class and the reliance on
Middleware by the Final Judgement and the Competitive Impact
Statement, permits Microsoft to evade due penalties for established
violations and further abuse their operating system monopoly by
expanding their ``tie-in'' policy and rendering harmed
ISV's among others, to the status of market irrelevance. This is a
position Microsoft does not currrently enjoy. Allowing Microsoft to
define what an operating system is ( through their monopoly control
and now U.S. Justice Department assistance) eliminates the threat of
Middleware and applications which may compete with Microsoft
applications. Indeed, applications not yet conceived can be
preempted until Microsoft ``discovers'' them and adds them
to their monopoly.
For such cause, many people recognize that breaking up Microsoft
is the best first step in correction of alleged and established
abuse. Recognizing and enforcing the legitimate (in this case)
separation of operating system and applications is the best way to
eliminate the basis by which Microsoft's abuse of its monopoly
operating system caused damage and continues to do so. Separating
the operating system would encourage its owner to make public all
features provided by the underlying hardware manufacturers. It would
further encourage competion between hardware
[[Page 28297]]
component manufacturers which manufacturers are as much victimized
by Microsoft's abuse of its monopoly operating system as consumers
and ISVs by virtue of the fact that hardware components''
interfaces must suit the Microsoft vision or be excluded. This why
so many computer software game manufacturers continued to develop
for DOS well into the late 1990%: the Windows interface denied them
full access to the functionality that enabled them to distinguish
themselves and satisfy their customers. No other vertical software
market had a customer base that would allow it or the underlying
hardware verticle market to ``rebel''. We are missing many
new innovations.
Evading the operating system definition eliminates or surely
deteriorates the possibility of illegal tie-ins. All potential
beneficiaries of just and reasonable corrections that would have
been established by faithfully addressing the allegations of the
also semi-adequate Complaint, are instead further damaged or
untreated (left damaged) by the Final Judgement. In the Complaint
Section I subsection 5 it is stated that``Microsoft's conduct
includes agreements tying other Microsoft software products to
Microsoft's Windows operating system;...'' The effects of these
tie-ins are well known but not part of the allegations of the
Complaint. A Microsoft application with hidden interfaces (tie- ins)
to the operating system has a chilling effect on the development of
competitive products and prevents those few who may discover this
interface from remaining competitive because of course, the hidden
interface may be changed upon upgrade of Microsoft's application or
operating system, 2 and the former interface removed, thus
``breaking'' the competitors application and causing
consumers to spend more money unnecessarily. This situation also
allows Microsoft to occasionally appear to be competing on the
merits of their offering when such is not the case. Promoting
middleware as is done in the Complaint, the Final Judgement, and the
Competitive Impact Statement, does nothing to alleviate this
problem. As stated in the Complaint and noted above, ``No other
product duplicates or fully substitutes for the operating
system.'' Indeed, middleware is just another application,
however useful. Denying ISVs and consumers the benefits afforded
them by a legitimately marketed bona-fide operating system as
opposed to an ``Operating System Product'' can not be in
the public interest, and is not responsive to the Complaint,
including prior court judgements.
When the ``Nimda'' computer virus appeared last year,
I was amazed at how it performed its activities. I was more
astonished when it occurred to me that I was reading about
functionality only a person familiar with Microsoft applications
programming would understand. What astonished me was the fact that
this and many other common viruses could not occur if Microsoft
applications were not tied in to the operating system. Operating
system vulnerabilities are policed, as it were, by the entire
computing community. Application vulnerabilities are not so well
noted, because applications other than middleware do not generally
offer much exposure to the programming consumer, and competition
keeps them distributed, not concentrated through the entire PC
universe. This is not the case with Microsoft applications. Commonly
used Microsoft applications are part of the ``programmers
toolkit'' for Windows developers. If they were not, the
anticompetitive position they occupy would be more blatant as only
Microsoft could interoperate with them, using the exposed underlying
functionality. On the other hand, having these products so fully
integrated into the operating system and each other while exposed
and enjoying the proliferation obtained from Microsoft's illegal use
of its monopoly operating system, facilitates more and more clever
exploits by hackers. The most common viruses affecting consumers
have used the victims own Microsoft applications. It is not so easy
to wreak havoc in other operating system environments where there
are no externally programmable, ubiquitous applications which
applications are fully integrated into the operating system via
hidden APIs or interfaces. Strangely enough, in the Linux community,
where essentially nothing is hidden, applications of this power
could exist and remain secure because the open source community
polices its environment jointly and severally. Interesting...
someone can break Microsoft products but only Microsoft can fix
them. Who pays? Thus we have another nasty by-product of the
``tie-in'' problem. It would be eliminated or greatly
reduced with a return to application development competition based
on an operating system exposed on a non- discriminatory basis.
It would thus be disastrous for ISVs and consumers alike if
Microsoft had authority to regulate security issues for operating
system and applications alike. That power is also effectively
granted by the Final Judgement where security APIs and documentation
are to regulated directly or indirectly by Microsoft, the antithesis
of security in consumer and commercial computing.
That the Final Judgement creates a new class called Microsoft
Operating System Product, is reprehensible, clearly evading the
issues addressed by the complaint. That ISVs who know how to use
computing facilities as well as and better than Microsoft should be
relegated to the use of middleware for protection from abuse and for
development is not contemplated by the Complaint or Court findings;
is unjustly discriminatory, and not in the public interest; denying
the public the expected benefits of many new applications which may
or may not use, or be middleware; yet must have the access to the
same APIs and documentation as any other entity in the computing
arena. Indeed, many of the best among us study hardware
documentation for software development, 3 and vice versa. Shall the
United States Justice Department and Microsoft alter this historic
landscape of a market in the interest of anyone other than
Microsoft?
The Competitive Impact Statement seeks to limit the competition
that competes against Microsoft and others in selected markets, by
requiring that ISVs must be of a certain size in the market and have
had that position over a particular period of time in order to
obtain API disclosure relief under Section III.D of the Final
Judgement; further enabling Microsoft to evade Complaint allegations
and even Sherman Act violations it has been found guilty of. This is
the case because again, some small mind has not yet learned that
computing facilities are continually reused by bright agile minds.
Interfaces used for middleware in one mind are perfect and necessary
for another application in the mind of another party. This
reuseability is the inherent nature of computer software and even
the smallest computer hardware components. The various underlying
markets must not be constrained by this taking on behalf of
Microsoft. The limited vision of Bill Gates'' nightmares and
appetites are not the proper perspective to use to correct the
abuses of Microsoft's monopoly operating system.
The Competitive Impact Statement states in defining a Non-
Microsoft Middleware Product, that such a product must have
``at least one million copies distributed in the U.S. within
the previous year'' (my emphasis) .It further states that this
requirement ``is intended to avoid Microsoft's affirmative
obligations--;including the API disclosure required by Section
III.D .... being triggered by minor or even nonexistent products
that have not established a competitive potential in the market and
that might even be unknown to Microsoft development
personnel.'' (my emphasis) This is preposterous! This
constitutes unjust and unlawful restraint of trade and unjust
discrimination. The Final Judgement does not restrict ISVs to a size
or type insofar as their right to obtain the benefit of relief under
Section III.D is concerned. If such were the case, the U.S. and
Microsoft have decided who has the fight to compete where in the
computing market which as stated above, consists of many integrated
and simultaneously distinct and competing markets. This carving of
the competing development community, to the benefit of Microsoft, is
ironically, the exact opposite of what should be carved. Neither the
U.S. nor Microsoft has the fight to determine what merely new,
useful, and innovative products may be created using any
functionality of a legitimate operating system. Is this why the
evasion technique deployed is to call an operating system an
operating system product instead of an operating system?
How dare this decree suggest that Microsoft development
personnel should be aware of what all or any others are doing in
development. Microsoft development personnel can not provide
consumers a finished product after any number of beta tests, nor can
they secure the products they make. The Revised Proposed Final
Judgement and related Competitive Impact Statement are a stench in
the nostrils of intelligent, informed consumers. Unless a settlement
can resolve the issues raised herein, Microsoft should be broken
into at least two separate pieces: operating systems and
applications.
Respectfully Submitted,
Leon H. Carrington,
STB Practitioner
(301) 862-;1604
[[Page 28298]]
MTC-00028541
From: Ann smith
To: Microsoft ATR
Date: 1/28/02 4:27pm
Subject: microsoft settlement
states sueing microsoft as well as aol using netscape to get
money from microsoft thru the courts is wrong. microsoft is being
bullied by the goverment and stockholders have lost money because of
this court action. it also does not let microsoft give all the
attention it needs to fight the hackers and make the internet safe
for all users including aol.
The reason we are so interested in Microsoft Programs is that
children all over the world are benefiting by Microsoft
products,games and all sorts of programs as an educational tool. I'm
so pleased when I see my 4year old granddaughter open the computer
and do what she wants to do. She spends hours doing games and
playing her videos, instead of watching T.V all the time.
We have eight babies we encourage to learn all they can by
buying programs for them at Birthdays and just for fun.
We the elderly have fun also and we invest money into the future
of Microsoft and other companies for the future.
MTC-00028542
From: Ron
To: Microsoft ATR
Date: 1/28/02 4:27pm
Subject: Microsoft settlement- further evidence
I have further indication that Microsoft continues to exercise
monopolistic behavior such that the only solution is to break it
into separate companies.
I recently purchased a subscription to MSDN (a service of
Microsoft that includes their software on CD or DVD).
I went to install Win/XP. They had not supplied me with a
product code for XP, and such a code is required in order to be able
to install the product I had paid for.
It turns out that in order to get a product code, I must
register an Email address with Microsoft[1]. Further, I must use
Microsoft Passport[2] in order to get a product code. The product
I'm installing has no relation to Email or Passport.
[1] I should not need an Email address to install something that
is not an Email application. Last time Microsoft got my Email
address, it took me nearly a year plus a letter to the gripe line at
Infoworld to get them to stop spamming me.
[2] Microsoft Passport requires that:
1. You trust them to hold the required information about you.
2. You accept cookies, which has privacy implications
3. You use an approved browser. Microsoft rejected the browser I
tried to use. --;
Ronald Tansky
MTC-00028543
From: Karl J. Smith
To: Microsoft
ATR,[email protected]@inetgw
Date: 1/28/02 4:29pm
Subject: Microsoft Settlement
The following is my comment about the proposed Microsoft
Settlement under the Tunney Act:
First, let me state that I agree completely with Dan Kegel's
comments abot the issues at http://www.kegel.com/remedy/
remedy2.html. He has done a great job summarizing the many problems
with the proposed settlement. In particular, however, I feel that
the public will be harmed most by the fact that the proposed
settlement doesn't account for any potential Open-Source
competition. It allows Microsoft to decide which entities it's
required to share documentation with, and has too many exceptions
for Microsoft to use as reasons for not documenting their protocols
and API's. Given that Microsoft has a documented history of refusing
to cooperate, this portion of the settlement is not very helpful at
all in restoring competition, and interoperability of protocols and
data is absolutely required for any real competition to exist.
The settlement is not in the public interest, for the many many
reasons listed above.
Sincerely,
Karl J. Smith
12525 SW Foothill Dr.
Portland, OR 97225
[email protected]
MTC-00028544
From: Dean (038) Danielle Fulcer
To: Microsoft ATR
Date: 1/28/02 4:27pm
Subject: Microsoft Settlement
I am in favor of this settlement. Microsoft has already changed
many of its business practices that were shown to be in violation of
the antitrust laws. These antitrust laws were meant from the
beggining to protect consumers, not simply allow competitors who
refuse to innovate and meet customer needs stay in business.
Microsoft has taken incredible risks by investing in technology
R&D when many other businesses would rather just keep the status
quo.
It's time to move on. Accept this settlement. Protect innovation
while monitoring Microsoft for compliance. Do not stifle Microsoft's
sucees. THAT would hurt consumers, not Microsoft coming out with
major new versions of their software that itegrate key features
every couple of years. Could you imagine buying a computer from a
manufacturer that was not allowed to integrate a CD-RW drive, or a
DVD, or for that matter a laptop without a monitor? This is
analagous to what Microsoft has done, integrate key user needs into
a single product. Please do not force me as a cosumer to shop for
each of my operating system needs individually. That would hurt me
in terms of time and money.
Sincerely,
Dean Fulcer
428 SW 347th ST
Federal Way, WA 98023
MTC-00028545
From: Beverly Offutt
To: Microsoft ATR
Date: 1/28/02 4:28pm
Subject: USAGOffutt--;Beverly--;1007--;0122
5873 Warnke Road
Michigan City, IN 46360
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my approval of the settlement reached
between the Justice Department and Microsoft.
As I understand the settlement, Microsoft has agreed to modify
its Windows operating systems to allow for the use of non-Microsoft
programs and services within Windows. The amount of additional
consumer choice brought about by this concession could be very
significant.
In addition, Microsoft has agreed to eliminate many of its more
restrictive covenants from its agreements with licensees and
distributors. I believe that this agreement will also provide
additional consumer choice after a period of time.
I know that you will agree that you have more pressing problems
on your agenda right now. Please take advantage of this opportunity,
settle the case, and move on. Thank you for your attention.
Sincerely,
Beverly Offutt
MTC-00028546
From: JJ Gifford
To: Microsoft ATR
Date: 1/28/02 4:29pm
Subject: Microsoft Settlement
To Whom It May Concern:
Attached are my comments re. United States et al. v. Microsoft,
pursuant to the Tunney Act.
I have attached two copies of the same document, one in
Microsoft Word format; the other in Rich-Text Format. Either
document should be readable on any modern PC using up-to-date
software.
Thanks in advance,
JJ Gifford
212 226 3462
Jonathan Gifford
117 Sullivan St., 5A
New York, NY 10012
[email protected]
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
[email protected]
re. Deficiencies in Microsoft settlement.
Pursuant to the Tunney Act, I am filing these comments on the
proposed resolution of United States, et al. v. Microsoft.
My Perspective, Experience, and Interest
I believe this case is tremendously important. As personal
computers and the Internet have become increasingly important to our
everyday lives, so too has the landscape of the technology markets
become increasingly important. Not only will the outcome of this
case impact the fortunes of a host of technology companies, but it
will also affect how I and millions of others communicate with our
friends and family, what choices we have for online services such as
digital photography, and of course how much we and businesses spend
on technology infrastructure.
Once the government decided not to seek a structural remedy, it
necessarily embarked
[[Page 28299]]
on a course of regulation. Regulation only works when the conduct
prohibitions truly restrain anti-competitive behavior, and create a
genuine opportunity for innovators to enter the market and compete
in it based on their merits. Unfortunately, the Proposed Final
Judgement (PFJ) presented by the Department of Justice and several
states fails on all counts.
Its results will be only a mild, temporary modification to
Microsoft's well-documented behavior, with no lasting or significant
effect on competition. Microsoft will retain its monopoly and every
incentive to maintain it through any means not specifically
prohibited by the PFJ. Consumers will continue to be deprived of the
innovations and other benefits of a truly competitive market, in
part because innovators will be deprived of the opportunity and
incentive to challenge Microsoft's monopoly as it expands and
evolves. Most importantly, America's technology industry will
stagnate, as ever fewer competitors see any value in entering
markets dominated by Microsoft.
While I believe that many if not most Americans will be affected
by the disposition of this case, I have a particular interest in it
as a long-time technology consumer, entrepreneur, and enthusiast.
Since 1980, I have used personal computers nearly every day, first
as a hobby, then for school, and later for my career in the
technology industry. In the early 1990s, I managed a small but
pioneering desktop publishing department for a large advertising
agency. Later, I joined a groundbreaking multimedia company that
produced CD-ROMs for both Macintosh and Windows-based computers.
Most recently, I was a partner in a successful Internet
development firm, which designs and produces web sites and other
interactive media for corporate clients. Having sold my share of
that business, I currently consult for other companies in the
technology industry.
Definitions Are Critical: the Devil Is in the Details
1. Most provisions of the PFJ depend on the definition of
``Microsoft Middleware.'' Accordingly, we should expect
this term to be well-defined, with clear boundaries and
unquestionable meaning. Unfortunately, the reality is that it is
vaguely defined, in language that grants Microsoft itself much
control over what software it, and therefore the PFJ, governs.
1.1.
Definition: According to the PFJ (PFJ VI.J), ``Microsoft
Middleware'' is any software which:
.* is distributed separately from the operating system,
.* controls the user interface of the Microsoft Middleware,
.* provides substantially similar functionality as a Microsoft
Middleware Product, and
. is trademarked.
1.2.
Definition gives Microsoft control. So Microsoft, which has long
stated its goal of incorporating browsing and other middleware
functions into its operating system products, can exclude code from
the Microsoft Middleware definition simply by not distributing it
separately from the operating system, or even just by not
trademarking it. Microsoft therefore will have enormous latitude in
determining which new operating system features will be governed by
the PFJ.
Clarity Is Essential to Compliance and Public Confidence.
The PFJ consists largely of vague prohibitions hobbled by
numerous qualifiers and exemptions.
For instance:
Limited replacement of Microsoft Middleware.
2.1. The PFJ requires Microsoft to enable users and OEMs to
specify that Non-Microsoft Middleware be used in place of Microsoft
Middleware (PFJ, III.H.2). This is a welcome change because it had
previously been difficult to replace Microsoft's Internet Explorer
(IE) without facing ``considerable uncertainty and
confusion'' when IE would nonetheless unexpectedly be invoked
under certain circumstances (Findings, paragraph 171).
2.1.1. Exemption for Microsoft servers. Unfortunately, Microsoft
is exempt from this requirement when the Middleware Product would be
invoked ``solely for use in interoperating with a server
maintained by Microsoft'' (PFJ III.H). This may exempt
Microsoft's current move into network services (''.NET'')
from the judgement, inasmuch as such services communicate with
Microsoft-owned servers. Microsoft considers .NET to be the next
phase of the Internet, at last offering `real''
applications and services. The first .NET service, Microsoft
Passport, aims at becoming a cornerstone of Internet shopping and
authentication transactions, and stores its data exclusively on
Microsoft-owned servers.
2.1.2. Exemption for proprietary technologies. Another exemption
allows Microsoft to launch its own middleware when the Non-Microsoft
Middleware ``fails to implement a reasonable technical
requirement'' (PFJ III H 3). Microsoft will be able to
capitalize on this loophole simply by emphasizing proprietary
technologies not supported by Non- Microsoft Middleware. To the
extent that Microsoft can implement features using proprietary
technologies, it will better be able to exclude Non-Microsoft
Middleware. A truly pro-competitive PFJ would encourage Microsoft to
use open industry standards.
OEM Distribution Channel Opened, But For Whom?
2.2. The PFJ requires Microsoft to allow OEMs to customize the
user's desktop by installing icons for Non-Microsoft
Middleware and other products (PFJ, III.C.1). This is important to
the PFJ because Microsoft has in the past excluded Netscape and
other competitors from the valuable OEM distribution channel, often
by contractually limiting an OEM's ability to customize the desktop.
In addition, Microsoft has used its control over the valuable
desktop real-estate as an incentive to get IAPs such as AOL to
support Microsoft Middleware instead of competing products.
2.2.1. OEMs lack incentive. Unfortunately, because Microsoft's
Internet Explorer is now the market leader, there is today little
consumer demand for alternatives to Microsoft Middleware. This makes
it unlikely that an OEM would see much gain, if any, in installing
Non-Microsoft Middleware. Such distribution may benefit the
middleware developers, but would not greatly benefit the OEM.
2.2.2. Customizations will be short-lived. This prohibition
remains in effect only for a 14-day window starting after the end
user first turns on his or her PC. Thereafter, Microsoft is free to
re-arrange the desktop as it sees fit, including automatic removal
of any non-Microsoft icons, e.g. by operating system features such
as the ``Clean Desktop Wizard'' built-in to Windows XP
(PFJ, III.H.3). So, any Non-Microsoft Middleware developers who do
manage to secure OEM distribution could well see their products
wiped off the desktop after a short two weeks.
2.2.3. Likely results. These limitations beg the question: will
any OEMs risk irritating Microsoft for such minor benefits? If they
do, will the results truly be increased competition in the
middleware market?
General Rule on Sharing APIs.
2.3. The PFJ requires Microsoft to share APIs used by Microsoft
Middleware with ISVs, et al. (PFJ III.D). In its Findings of Fact,
the District Court found that Microsoft had repeatedly withheld such
information from ISVs, or used its disclosure as an incentive for
`friendlier'' behavior, in an effort to preserve the
applications barrier to entry (Findings, paragraph 84, 90, 91).
Because ISVs depend on such information to develop software for a
given platform, withholding APIs can limit or destroy an ISV's
ability to create competitive products. Therefore full API
disclosure should be considered a basic condition for any kind of
effective competition.
2.3.1. Only APIs necessary to mimic Microsoft's products will be
disclosed. Unfortunately, the PFJ requires Microsoft to share only
those operating system APIs used by Microsoft Middleware. This is a
limited set of APIs, of use only to those ISVs who want to develop
middleware products similar to Microsoft's. It does little to help
ISVs offer features or innovations not already offered by
Microsoft's products. Since ISVs typically must provide innovations
to gain market share against an entrenched market leader, this
requirement is unlikely to promote competition in the middleware
market.
2.3.2. Many APIs may be withheld on dubious
`security'' grounds. The PFJ allows Microsoft to exclude
any APIs the disclosure of which ``would compromise the
security of a particular installation or group of installations of
anti-piracy, anti-virus, software licensing, digital rights
management, encryption or authentication systems'' (PFJ III.I.
1 ).
. This is a surprising exemption because few security
professionals believe API disclosure could weaken any well-designed
security system. Indeed, the complete source code (a level of
disclosure far greater than simple APIs) is publicly available for
several operating systems and security-related products that are
widely considered to be more secure than Windows (e.g. the Linux
operating system).
. Yet the inclusion of this exemption implies that there in fact
are such APIs
[[Page 28300]]
whose disclosure could compromise security, and thereby opens the
door for Microsoft to make claims about which ones they are. There
is no basis for the Competitive Impact Statement's
(``CIS'') optimism that security-related exemptions will
be limited to ``keys and tokens'' (CIS, IV.B.5) of
particular installations. Nothing in the PFJ's language so limits
the exemptable APIs, and such entities aren't generally visible at
the API level, anyhow.
. With Microsoft's current push into network services (under the
.NET moniker), we can expect privacy and security features to be
suffused throughout the code, increasing the number of APIs
Microsoft will try to exempt from disclosure. Indeed, Microsoft has
just this month announced that privacy and security will henceforth
be its main priorities. 1
1 Associated Press, ``Microsoft Announces Strategy
Shift'', D. Ian Hopper and Ted Bridis, January 17, 2002.
Inadequate Enforcement
3. The task of detecting whether Microsoft has violated these
and other provisions falls to a three- person ``Technical
Compliance'' committee (the ``TC''). This committee
will have access to the source code and tools used to create
Microsoft's products, as well as access to the relevant Microsoft
staff (PFJ IV.B.8). In theory, the TC's oversight will prevent
Microsoft from using technical strategies to camouflage non-
compliance, for instance by wrongly claiming that some important API
should not be disclosed for security reasons. While such oversight
may in fact be helpful, the TC is an inadequate, inefficient and
non-transparent attempt to ensure enforcement of a Judgement that
otherwise relies on voluntary compliance and enforces few penalties
for transgressions.
3.1. Severe employment restrictions threaten the TC's
performance. The PFJ includes employment restrictions which will
dramatically narrow the pool of TC candidates--;first, to those
experts not currently working for Microsoft or a competitor, and
then to those remaining candidates willing to forego any such
employment for two years after serving on the TC. In so doing, it
excludes nearly all of those experts in operating systems design and
programming whom the TC most needs, since it will be very difficult
to find any such experts not currently working for, and with no
intention of working for, Microsoft or a competitor. As a
professional in this field, I cannot imagine why a highly competent
independent minded computer scientist would wish to serve on the TC
under these circumstances.
3.2- The TC will be buried under a mountain of technical data.
Even if well staffed, the committee will have all enormously
difficult task from a technical standpoint. Inasmuch as deciphering
computer source code can be difficult even for the code's author,
much less a new reader, and inasmuch as Windows XP alone consists of
some 45 million lines of code 2, this committee will have an
enormously difficult task. Even with a large support staff, it is
hard to imagine this committee effectively analyzing Microsoft's
source code and fully investigating allegations of non-compliance.
3.3. The TC cannot ensure timely remedies. Further, because the
committee is prohibited from public comment (PFJ, IV.B.10), it will
be unable to confirm any ISV's suspicions about Microsoft's
compliance, nor could it force a timely remedy. Its only recourse
will instead be to notify Microsoft and the Plaintiffs and to
suggest a possible remedy. Therefore, an ISV suspecting Microsoft of
non-compliance will not receive an immediate remedy, but must
instead rely on a bureaucracy whose natural tendency will be not to
pursue minor infractions. While such infractions may indeed be minor
in the scope of the overall judgement, they would assuredly be of
great importance to the ISV.
3.4. The TC's findings may not be presented to the Court or the
public. Under the PFJ, the TC may not testify in any matter relating
to the Final Judgement, nor may its work product and recommendations
be submitted to the Court (PFJ, IV.D.4.d). Similarly, the TC is
prohibited from public comment (PFJ, IV.B.10). Thus, even if the
TC's exclusive access to source code should produce evidence of
deception and non-compliance by Microsoft, this evidence will not be
presented to the Court. 2 BusinessWeek, ``Windows XP: a
Firewall for All'', Alex Salkever, June 12, 2001.
. In theory, the TC will report to the Plaintiffs, who may in
turn report such non- compliance to the Court, and produce evidence
of it via other means. This may well happen in the case of massive
or severe non-compliance. However, what happens to the small ISV who
suspects Microsoft of non-compliance, e.g. by not disclosing some
necessary API? Such an injured party may report its concerns to the
TC, and then hope that the TC is able to verify its claims, and
further is able to convince the Plaintiffs to go to court on their
behalf. During this bureaucratic pursuit, the ISV's business may
suffer irreparable harm, or even vanish altogether (as has very
nearly happened to Netscape). Were such ISVs to have access to
Microsoft's source code, perhaps in a secure facility, they could
investigate such concerns themselves, directly and immediately.
Indeed, API disclosure would not be an issue in the first place.
. The point here is that the nature of the TC is as the first
step in a bureaucracy whose natural instinct will be to pursue only
the most serious transgressions. In the context of a rapidly
changing technology industry, this is a serious weakness in the PFJ.
3.5. PFJ places enormous weight on third TC member. The PFJ
proposes that the Plaintiffs appoint one member of the TC, Microsoft
appoint a second, and then these two members themselves choose a
third (PFJ IV.B.3). This structure places enormous responsibility on
the third member, who can be expected to decide any disagreement
between Microsoft's representative and the Plaintiffs'',
especially in the context of the Voluntary Dispute Resolution
process in IV.D. It is unclear whether the TC reports to the
Plaintiffs only as a single unit, or whether a dissenter's view also
gets submitted to the Plaintiffs. A better structure would at the
very least make it crystal clear that any single member of the TC
may report, to the Plaintiffs.
Also, creating such a fulcrum position in the TC makes this
third seat much less attractive and harder to fill, and injects an
element of politics into the TC that will distract from its
technical mission and smooth functioning. Because the TC is not a
decisional body, but simply a means to keep a watchful eye on
Microsoft's compliance, it is unclear why Microsoft should have
representation here at all. All of the TC's members should be
appointed by the Plaintiffs, perhaps with the DOJ appointing one
member, the States appointing a second member, and the Plaintiffs
collectively appointing the third.
3.6. Catch-22. Given the enormity of the TC's tasks, the limits
on its powers and enforcement abilities, and the severe employment
restrictions surrounding service in the TC (IV.B.2), it is clear
that any candidate for the TC willing to accept the job is almost
certainly too inexperienced to be legitimately qualified for it. In
Today's Market, More is Needed.
4. In perhaps its broadest weakness, the PFJ fails to recognize
that the circumstances of the original case were unique, and that
circumstances today are very different. The Internet's rapid public
acceptance around 1994-;1995 took many established computer-
industry firms by surprise, and radically changed the personal
computer market. The basic reasons users wanted to own personal
computers changed dramatically within less than two years. Two
companies in particular, Netscape and Sun Microsystems, were able to
aggressively exploit the new technologies and to take advantage of
Microsoft's slow response to the burgeoning consumer demand. As a
result, they were able to present a serious threat to the
applications barrier to entry that has long protected Microsoft's
monopoly in Intel-compatible operating systems.
4.1. No longer any consumer demand for non-Microsoft Middleware.
But that window of opportunity is long closed. The Internet is an
established part of the personal computer market. Microsoft's
Internet Explorer is the dominant browser. There no longer is any
great consumer demand for alternative browsers. Netscape no longer
exists as an independent company, and development of the Netscape
browser occurs at a fraction of its former pace. Even the CIS
acknowledges that Microsoft has ``perhaps extinguished
altogether the process by which these two middleware technologies
[Java and the Netscape browser] could have facilitated the
introduction of competition into the market for Intel-compatible
personal computer operating systems'' (CIS, III.B.3).
4.2. Cannot resuscitate existing middleware competitors. Nothing
in the PFJ can or will restore these competitors to their former
strength. There is no way to rekindle the massive consumer demand,
then left unserviced by Microsoft, that gave these companies their
initial momentum.
4.3. Hoping for another thousand-year flood. Still, the CIS
claims the PFJ will ``restore the competitive threat that
middleware products posed prior to Microsoft's unlawful
undertakings'' (CIS, II). Given that Microsoft now dominates
the browser market and retains its operating
[[Page 28301]]
systems monopoly, and given that the PFJ allows Microsoft to support
its browser market share by tying the browser to the operating
system, this claim seems to rest on the optimistic hope that some
new disruptive technology will appear, will be ignored by Microsoft,
and will create massive consumer demand for some non-Microsoft
Middleware. Without such an event, the PFJ merely establishes rules
for a game that has no players.
Unconditional Surrender
5. Finally, in a bizarre and extreme limitation, the PFJ will
expire in only five years--;regardless of whether or not
Microsoft retains its operating systems monopoly (PFJ, V.A). The DOJ
must believe that not only is the PFJ an effective remedy, but that
it will be so effective that Microsoft will be reduced to a shadow
of its former self and must be unshackled in just five years (seven,
if the Plaintiffs seek and receive the maximum extension permitted
by the PFJ). Unfortunately, this clause is so careless that it will
release Microsoft no matter the circumstances--;that is, even if
Microsoft retains or even strengthens its monopoly power. The
message that the PFJ sends is ``we'll try this for five years,
and then we're giving up.'' Any judgement should remain in
effect until the Court finds that Microsoft no longer holds a
monopoly in Intel-compatible operating systems. It makes little
sense to release Microsoft until competition has re-entered the
market and Microsoft may no longer commit the illegal acts described
by the Court's Findings of Fact.
Alternatives
This PFJ illustrates the difficulty in devising effective
conduct remedies for complex software cases such as this, especially
where the defendant retains its monopoly power and the incentive to
expand and maintain it by any method not prohibited by the PFJ.
Vague technical definitions and even apparently narrow exemptions
can be exploited by the monopolist to maintain its ill-gotten gains.
It would be vastly preferable to create the proper structural
conditions for competition by decoupling parts of the monopolist
enterprise. Without a structural remedy, it is imperative that the
definitions and prohibitions in the Final Judgement be as clear and
comprehensive as possible, so as to fully restrict the anti-
competitive behavior that has been denying consumers choice,
innovation and fair market pricing. There are a number of specific
changes that ought to be made to the PFJ:
. Any judgement should remain in effect until Microsoft no
longer holds a monopoly in Intel- compatible operating systems.
Starting in 5 years, the Court should annually review
Microsoft's position in the Intel-compatible operating systems
market. Should it find that Microsoft no longer exercises monopoly
power in that market, and therefore cannot commit the illegal acts
described in the Court's Findings of Fact, it could release
Microsoft from the terms of the judgement.
.* The TC should be appointed entirely by the Plaintiffs,
perhaps with the DOJ appointing one member, the States appointing a
second member, and the Plaintiffs collectively appointing the third.
.* Definitions such as that of ``Microsoft
Middleware'' should be tightened considerably, and the PFJ
reworked to minimize its reliance on such narrow categories.
. Microsoft should be required to make the full source-code for
its Intel-compatible operating systems available for viewing by ISVs
et al.. This will allow ISVs to better develop competitive products,
and will allow the ISVs themselves to monitor Microsoft's compliance
with the judgement's other technical requirements, instead of
relying on an inefficient, overworked TC.
.* If the Court decides against requiring source-code sharing,
it should at a minimum require the disclosure of all operating
system APIs used by any Microsoft products (i.e. not just those APIs
used by Microsoft Middleware). A blanket disclosure requirement such
as this will close those existing loopholes whereby Microsoft might
withhold critical information from ISVs whose products threaten its
operating system monopoly.
.* Exemptions permitting various proscribed behaviors under
certain circumstances should, as a whole, be stricken.
.* Finally, the judgment should include real consequences for
non-compliance, such as further conduct prohibitions, financial
penalties, or further disclosure requirements. The PFJ currently
provides only a possible Court-imposed two-year extension of its
rather toothless provisions.
Conclusion I hope that the PFJ is modified by the DOJ or the
Court, and that what seems to be a great opportunity for antitrust
law to make a difference for tomorrow's entrepreneurs and consumers
is not lost in a fog of complexity. The technology may be complex
and changing, but the underlying competitive issues are fundamental.
I take both comfort and concern from the fact that I am clearly not
alone in expressing these concerns. As the Financial Times
editorialized:
...It would be wrong for the states, or the judge, to reject
this settlement merely because it is not sufficiently punitive. The
test is whether the proposal provides enough protection for the
public and for Microsoft's competitors. As it stands, it does not
meet this test. Though a continued trial would be expensive and
distracting, it would be better than an unsatisfactory settlement.
This proposal should be rejected..
(Financial Times, ``Micro-too-soft'', November 5,
2001)
I believe that the PFJ, if accepted by the Court in its current
form, will lead to clear and irreparable harm to consumers and to
the United States'' technology industry. So pervasive has
technology become that the technology industry is an obviously
critical component of the American economy.
Even BusinessWeek, itself no anti-capitalist Microsoft critic,
recognized the broad implications of the resolution of this case:
... [T]he Justice Dept.'s weak censure of Microsoft for its
serious monopolistic practices could cost the U.S. mightily in the
years ahead. The great strengths of the American economy are its
openness, its competitiveness, and its innovativeness. Monopoly is
the enemy of all three.
(BusinessWeek, ``Slapping Microsoft's Wrist'',
November 19, 200!) Based on my experience, I do not find the PFJ to
be in the ``public interest'', which is the standard that
the DOJ and the Court are subject to under the Tunney Act.
Respectfully submitted,
Jonathan Gifford
January 28, 2002
MTC-00028547
From: Lorenzo Thurman
To: Microsoft ATR
Date: 1/28/02 4:27pm
Subject: Microsoft anit-trust settlement
I feel the settlement does not punish Microsoft for their wrong
doings. Note that I did not say ``punish enough'', because
I do not feel they are being punished at all. The agreement calls
for oversight, not puninishment, and a large donation to schools.
Neither of these will force Microsoft into changing its behaviour
nor will they help create a more competitve environment. I, as a
software developer, feel that any business I start would be
threatened if I develop technology like Java that threatens their
Monopoly.
I've heard some of Secretary Ashcroft's comments about the
settlement and at least part of his reasoning is that it would be
good for the economy. In the short term, this may be true, but the
downturn in the economy and the war on terrorism will pass, and we
will be left with a very non-competitive environment with one
company dominating both the operating system and the applications
area. This potentially has global ramifications. As you may be
aware, some European countries and China are looking elsewhere for
their technology. They are concerned about their own security and
having only one company to provide the bulk of their productivity,
security etc. This will only serve to create markets outside of the
US. The Justice Department's current settlement may solve short term
problems, but will only serve to isolate the American software
vendors, unless you act now to reduce and/or restrict the Microsoft
monopoly.
Thank you
MTC-00028548
From: Gordon Fox
To: Microsoft ATR
Date: 1/28/02 4:28pm
Subject: Microsoft Settlement
As an individual and user of the Microsoft Operating System and
bundled software I have appreciated the ease of having it all in one
package. I believe that most individual consumers would agree. The
government broke up Ma Bell and now there are many larger
businesses. All it did was to make prices rise. A business should be
allowed to produce their product without governmental restraint
unless it in some way will do physical harm to a person.
To those of us who are retired and hold stock in these companies
such as Microsoft, the ongoing dispute over who is right has only
served to hurt the stockholders. Let's get this suit over with once
and for all and let
[[Page 28302]]
Microsoft get back to doing what they do best ? innovate!
Thank you for your time,
Gordon Fox
MTC-00028549
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:29pm
Subject: Microsoft Settlement
The U.S. government, via the USAF, trained me to use and repair
computers over 30 years ago. One of the first things I learned was
that there are two kinds of software: operating system software and
application software.
The operating system software, such as Windows, controls how the
computer functions, whether it be one with an Intel Pentium or
another manufacturer's CPU chip. Application software consists of
programs that use the computer to perform tasks, such as word
processing, money management, or browsing the internet. By Microsoft
controlling the operating system market for PCs, they have unfairly
competed in the marketplace for years.
By allowing Microsoft to continue to modify its operating system
and add application software to it, you are allowing Microsoft to
retain their monopoly and unfair advantage.
Microsoft will continue to stifle competition by using its
unfair advantage. Consider that Netscape, who developed the network
browser, has had to practically give its software away. In 2-;3
years, why will anyone want to buy RealPlayer software when
Microsoft will have imbedded their media player software in the
operating system?
The only way to settle this issue fairly for all concerned is to
split Microsoft into two companies. By requiring Microsoft to form a
company that produces only operating systems, you will not only make
the marketplace more fair for all application software companies,
you will force Microsoft to make the best operating system they can.
And, yes, the world needs a better operating system, not just
the operating system Microsoft allows consumers to buy. I want an
operating system that will efficiently use the software I want to
install, not an operating system that is loaded with applications I
might not want. By requiring Microsoft to form a company that
produces only application software, you will place Microsoft into a
position where the quality of their software determines whether they
succeed, not because they can use their operating system to an
unfair advantage. Splitting Microsoft into two companies would give
application software companies a fair chance to succeed. Real and
fair competition will return and innovation will drive the market.
In the last 20 years, Microsoft has earned billions of dollars
in profits, often at the expense of other companies. Consider
Netscape who has had to give away their product. Consider Novell who
had the best networking software available, but fell because
Microsoft put networking software in their NT operating system.
There are dozens, if not hundreds, more.
The settlement that has been negotiated is laughable. It does
not change anything. Microsoft will continue with their current way
of doing business. And innovation and competition will continue to
be stifled.
Respectfully,
Larry Lininger
3130 Hancock Place
Fremont, California
MTC-00028550
From: Brian Showalter
To: Microsoft ATR
Date: 1/28/02 4:30pm
Subject: Microsoft Settlement
As a United States citizen and experienced computer professional
who has at times been compelled to work with Microsoft products,I
would like to express my opposition to the settlement that has been
proposed for the USDOJ's antitrust lawsuit against Microsoft. I feel
that the terms of the settlement as currently specified are weighted
far too heavily in favor of Microsoft, and that they will do nothing
to prevent Microsoft from continuing abuse its monopoly position to
stifle competition and lock customers into its products. The terms
also significantly underestimate the lengths to which Microsoft has
shown it swilling to go to root out loopholes in any agreements it
enters into and exploit them in such a way that any intended
restrictions on its behavior are effectively neutralized. I also
feel that the terms will do literally nothing to ease the market
barrier to entry for new products, particularly open-source products
such as the Linux operating system, which may happen directly
compete with Microsoft's offerings.
There are a number of problems with the settlement which other
shave outlined and on which I will not go into further
details.However, I am dismayed by the extent to which the proposed
settlement focuses almost completely on attempting to restrict
Microsoft's behavior on the Windows desktop and middleware
platforms, to the virtual exclusion of server platforms and other
operating system products that are offered or soon to be offered
Microsoft. In particular, the name ``Windows'' is
mentioned 56times in the document, yet no mention is made of the
embedded operating system market or of Microsoft's explicitly stated
intention to replace the Windows desktop and server platform with
the .NET initiative. Furthermore, the definitions of
``operating system,'' ``personal computer,''
``Microsoft Platform Software,'' and``Windows
Operating System Product'' refer entirely to desktop operating
systems intended for use by a single user at a time.
This loophole would have the effect of rendering Section III.A
moot in its entirety should Microsoft attempt to retaliate against
an OEM that is attempting to market a competing Server Platform on
its products. Additionally, the proposed settlement does nothing to
preclude Microsoft from dropping the Windows Brand name altogether
and continuing their customer lock-in,competition-stifling and
monopoly-extending behavior on a similar but differently named
platform.
Dan Kegel has done an excellent analysis which may be found
online at (http://www.kegel.com/remedy/remedy2.html). Mr.Kegel's
site also contains links to several other very compelling analyses.
Due to the flaws which I and others have pointed out,the settlement
as it is currently written does not serve the public interest and
should not be accepted without considerable revisions to ensure that
the market is not tilted unfairly inMicrosoft's favor.
Thank you for your time and for considering my point of view.
Sincerely,
Brian Showalter, Programmer/Analyst
14713 W. 149th Court
Olathe, KS 66062
MTC-00028551
From: Dave Janne
To: Microsoft ATR
Date: 1/28/02 4:31pm
Subject: Microsoft case
Gentlemen- I'll make this short. It's time to settle this case.
I think the settlement is more than fair, and any more delay in this
is ongoing to hurt the economy more than it already has.
Thank you
L. David Janne- Pres.
Steuben Electronics Inc.
CC:[email protected]@
inetgw
MTC-00028552
From: Larry Boler
To: Microsoft ATR
Date: 1/28/02 4:31pm
Subject: Microsoft Settlement
Enough is enough. Let's end the legal assaults on Microsoft.
Microsoft has done more for the consumer than anybody else in
the industry.
Without Microsoft's excellent leadership and ongoing product
improvements we would not be where we are today. Are we about to go
back in time?
Let the Free Enterprise System function the way it should and
give Microsoft a chance to once again put 100% of it's efforts to
making better products for the benefit of consumers.
Larry Boler
MTC-00028553
From: John Jackson
To: Microsoft ATR
Date: 1/28/02 4:30pm
Subject: Microsoft Settlement
13223 46th Place W
Mukilteo, WA 98275
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you today to express my opinion in regards to the
settlement that was reached in November between Microsoft and the
government. I support this settlement and believe it is a fair and
sufficient agreement to end the three-year antitrust dispute.
This settlement contains provisions that will foster
competition. Microsoft has agreed to share more information with
other companies and is willing to follow procedures to make it
easier for companies to compete. Under this agreement, Microsoft
must design future versions of Windows to make it easier to install
non-Microsoft
[[Page 28303]]
software. Microsoft has also agreed to license its Windows operating
system products to the 20 largest computer makers on identical terms
and conditions, including price. Microsoft will be monitored for
compliance by a technical committee established by order of the
settlement.
This settlement will serve in the best public interest.
Microsoft has contributed so much to our society that stifling this
company will only serve to negatively impact the public. Please
support this settlement. Thank you for your time.
Sincerely,
John Jackson
MTC-00028554
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:28pm
Subject: Microsoft Settlement
Attached please find comments by Palm, Inc. to the Revised
Proposed Final Judgment in United States v. Microsoft Corporation,
No. 98-;1232, State of New York, et al. v. Microsoft
Corporation, No. 98-;1233, submitted pursuant to the Tunney
Act, 15 U.S.C. 16.
The attached is a .pdf file. We are also delivering hardcopies
for your convenience.
Please contact Craig Waldman at (212) 878 8458 with any
questions or comments.
<>
For further information about Clifford Chance please see our
website at http://www.cliffordchance.com or refer to any Clifford
Chance office.
MTC-00028556
From: Henry Keultjes
To: Microsoft ATR
Date: 1/28/02 4:32pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Re.: Microsoft Settlement
Dear Ms. Hesse:
In response to the request for comments in USDOJ vs Microsoft in
accordance with the Tunney Act I ask that such settlement be
rejected. Having read the Revised Proposed Final Judgment between
USDOJ and Microsoft, and having read the alternate proposed
settlement by the nine states and DC, and having understood that the
purpose of the Tunney Act to solicit feedback from US citizens
affected by the outcome of a final judgment is to make sure that any
such final judgment is in the best interest of the consumer, let me
start by asking three questions:
1. Now that Microsoft has been at the center of antitrust
controversy forever, starting when Novell sued Microsoft culminating
in a consent decree in 1994, is it not in the best interest of the
consumer and our country as a whole to find a solution that will
keep Microsoft out of the courts, at least for a while?
2. Can the USDOJ vs Microsoft settlement proposal be in the best
interest of the consumer if the agreement cannot be clearly
understood even by the fairly educated person with a fairly good
understanding of law that I am?
3. Can the USDOJ vs Microsoft settlement proposal be in the best
interest of the consumer if the agreement ignores that, because
Microsoft's marginal cost is effectively zero, remedies, that might
have been effective for a predatory competitor that *does* have real
marginal costs, are totally ineffective here?
What I, as the president of a company and as a consumer seek is
simply an environment in which I can buy at a fair price what has
become as ubiquitous a product as typewriters once were. In this
case, however, this ubiquitous product is without the traditional
competitive market place price pressures that go with ubiquitous
products. Therefore prices for those Microsoft products that have
replaced our typewriters are about four times higher then a
competitive market would allow.
The solution, the remedy, that USDOJ and Microsoft offer to
solve the issue of Microsoft having been found guilty of anti-trust
violations gives me very little comfort, if any, that such a
competitively priced market will develop as a result of that
agreement. As a matter of fact, if the agreement is allowed to
become final, Microsoft will be emboldened to eliminate some of the
loopholes that have allowed sophisticated buyers to avoid the so-
called Microsoft tax, the fact that the consumer pays for Microsoft
products when s(he) buys a PC, whether s(he) needs those Microsoft
products or not.
On the other hand, the alternative settlement agreement proposed
by the nine states and DC appears to offer a solution that *does*
create a competitive environment where it now counts most, the
desktop.
Rather than addressing the various aspects of the USDOJ vs
Microsoft proposal further, I will just address one issue, the
clause in the alternate proposal that Microsoft establish three
competitors for its MS-Office product through an auctioning process.
The real sticky problem in trying to find a good solution to
*this* anti-trust case lies in the fact that, although an individual
or a company may want to switch to a competitor's OS, the huge
investment in training and learning MS-Office products, such as MS-
Word and and MS-Excel, effectively discourages or even prevents such
a switch.
If one draws an analogy between the oft cited Standard Oil anti-
trust case, Microsoft has managed to bring about a situation where
90% (including Apple's 5%) of the desktop software can only run on
MS-Windows gasoline. Forcing Microsoft to sell off gas stations
under those circumstances is obviously not a remedy. However, by
forcing Microsoft to auction off three copies of MS-Office, complete
with formulas and technical assistance for ten years, competitors
can develop desktops that people already know and like but which
desktops run on the gasoline of those competitors.
Forcing Microsoft to just share the formula for the gas is an
inadequate remedy, not only because, in the eyes of its competitors
and a significant segment of the hightech industry, the quality of
Microsoft gas is not very good, but also because of the time delay
to build a refinery capable of producing that special gasoline.
The solution that the nine states and DC are proposing is
therefore an analogy to a Standard Oil case that is even more
threatening to the consumer because, in this case, Microsoft also
owns the factory that makes the special cars that more than 90% of
the people are using now and which cars only run on Microsoft's own
special gasoline. Forcing Microsoft to become the non-exclusive
manufacturer of those proprietary MS-Office cars is therefore a
brilliant remedy on the part of the nine states and DC as well as a
meaningful punishment for Microsoft because it is neither a cash
punishment not a punishment that will hobble the company.
Competition for the dollars that consumers will spend to buy MS-
Office is not only a desirable end to this anti-trust case, by
having an MS-Office version that effective runs on OSes like Linux
and Unix, this solution will also lead to a more lasting end to this
energy sapping Microsoft antitrust hassle. By punishing Microsoft
fairly for its proven illegal behavior, the government in effect
discourages other illegal behavior, such as cracking, by large
groups of people who feel justified to take the law into their own
hands if their government fails to afford its consumers protection
from a monopolist under the law.
Unless our government punishes Microsoft fairly for its illegal
behavior, our government in effect creates an atmosphere in which
lawlessness can blossom.
Restated in simple terms, it is my belief that it is in the best
interest of the consumers and our country that the court reject the
proposed USDOJ vs Microsoft final judgment and instead adopt the
remedies in the proposed final judgment of the nine states and DC as
the final judgment.
Sincerely,
Henry B. Keultjes
President
Microdyne Company
POB 1056
Mansfield OH 44901-;1056
Voice 419-;525-;1111
HBK/s 27 January 2002
MTC-00028557
From: Bruce Morgan
To: Microsoft ATR
Date: 1/28/02 4:33pm
Subject: Microsoft Settlement
I fully support the proposed settlement between Microsoft and
the DOJ. Despite months of testimony and years of legal wrangling,
no one has ever given any significant evidence of any consumer harm
as a result of Microsoft's actions and behaviors.
Microsoft's Windows operating system including the Internet
Explorer browser is far and away the most user friendly, functional,
and highest value operating system available. By building the
browser functionality into the operating system (both as a user-
level feature like IE and as the MSHTML components for ISVs to use),
Microsoft has provided a level of functionality far beyond anything
any other vendor has delivered.
I think settling this case is the best way for the software
industry to move forward,
[[Page 28304]]
competing in the market instead of in the courts.
Sincerely,
Bruce Morgan
Bellevue, WA
MTC-00028559
From: Fred Rone
To: Microsoft ATR
Date: 1/28/02 4:32pm
Subject: Microsoft Settlement
Dear DOJ:
Please impose penalties on Microsoft that will encourage new
competition in operating systems. The current de facto monopoly
results in the price gouging that is apparent in Microsoft's
extremely high profit margins.
Sincerely yours,
Fred Rone
[email protected]
MTC-00028560
From: Bob Ray
To: Microsoft ATR
Date: 1/28/02 4:33pm
Subject: Microsoft Settlement
I can't believe that the government's response to Microsoft's
criminal behavior is a mere slap on the wrist. Not only will
Microsoft continue to engage in anti-competitive and probably
illegal behavior but other large companies will be encouraged to do
so as well.
Bob Ray
MTC-00028561
From: Chris Waterson
To: Microsoft ATR
Date: 1/28/02 4:35pm
Subject: Microsoft Settlement
One rememdy that I would find particularly satisfactory would be
for Microsoft to have to ship a copy of Netscape's product with
every copy of their operating system. :-)
Chris Waterson
437 Hoffman Ave.
San Francisco, CA 94114
415-;642-;3522
CC:[email protected]@inetgw
MTC-00028562
From: Robert Randall
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject'' Microsoft Settlement
Attached, in WordPerfect format are a cover letter and comments
regarding whether the Microsoft settlement is in the public
interest. Let me know if you have difficulty opening the attached
WordPerfect files.
Robert L. Randall
RainForest ReGeneration
1727 Massachusetts Ave NW
Washington, DC 20036
Tel: (202) 205-;3366
Fax: (202) 483-;5175
RAINFOREST REGENERATION
THE RAINFOREST REGENERATION INSTITUTE
?27 MASSACHUSETTS AVENUE NW WASHINGTON, DC 20036
26 January 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse:
Accompanying are public comments regarding the proposed
Microsoft settlement submitted for consideration pursuant to the
Tunney Act proceedings before the District Court for the District of
Columbia.
I am not a lawyer, computer professional, or Microsoft
competitor. I use personal computers to perform business
``office'' functions and am concerned by how unwieldy and
unreliable Windows has become as new ``features'' I do not
want or use are incorporated. I also use Linux and find it better
than Windows for my needs. However, few of the specialized
applications programs I need for my work (in addition to general
purpose ``office'' applications) are available for that
platform without custom programming or adaptation so using Windows
is a practical necessity. Microsoft products are priced considerably
higher than their functional equivalents by other publishers, a
phenomenon I attribute to Microsoft's monopoly pricing power that
the instant Tunney Act proceedings are intended to curb in the
public interest while not losing the benefits of vigorous innovation
in computer and communications technology.
You have my permission to publish these comments and to make
whatever use of them in the Tunney Act proceedings you see fit. I
hope these comments will be helpful to the Court.
Respectfully submitted,
Is the Microsoft Settlement in the Public Interest?
The settlement negotiated between Microsoft and the Justice
Department and several of the plaintiff States appears to rest on
the dubious proposition that the public interest is synonymous with
the summation of private interests. Secondly, while the settlement
arguably addresses the ``middleware'' problem that was the
focus of much attention in the trial, it is weak, if not completely
ineffectual, with respect to the equally important prevention of
Microsoft's apparent extension of its operating system monopoly to
the most widely used business applications software programs. These
observations are amplified below.
While the Sherman Act provides for a private right of action
seeking trebling of private damages suffered from monopolization,
its strong feature was declaring monopoly and monopolization to be
detrimental to the general public interest beyond the summation of
losses to identifiable private parties who might sue. These days, in
a case such as this, the loss to the general public interest might
be seen as a stifling and channeling of innovation into forms
approved by the monopolist, a hard-to-predict and quantify loss to
an undefined and disparate ``public.'' This is the
putative loss the Sherman Act is intended to mitigate through the
Tunney Act proceedings. The Justice Department observed in its
Competitive Impact Statement that the Court does not have the
authority to write a different settlement that it might prefer and
that what might emerge from further proceedings, and when, in the
event the Court rejects the settlement as not in the public interest
is indeterminate. It is also the case that several plaintiff States
have not agreed to the instant settlement, though they could yet do
so, suggesting that any final resolution with respect to their
continuing action would need to be integrated, or made compatible,
with this negotiated settlement in the event this settlement is
accepted by the Court, if the public interest is not to be
undermined by a patchwork of remedies applied to one monopolist by
various parties. Moreover, it must also be observed that if this
settlement is approved for all the practical reasons noted by the
Justice Department, it is also nearly a foregone conclusion that
another, more far-reaching governmental antitrust action against
Microsoft is practically precluded during the five years duration of
this consent decree, even if the consent decree were manifestly not
working adequately. In the fast moving field of computers, software,
communications, entertainment, and their conjunction--;of
possibly great value to at least some members of the
public--;five years is a long time. Lastly, it must be noted
that Microsoft is likely to be the landmark case in applying
antitrust law and principles to fast moving, high-technology
businesses so it is important to get a sound foundation in place for
future reference and consideration.
The Court found at trial, and the Court of Appeals affirmed,
that Microsoft has a monopoly in its Windows operating system for
Intel-compatible personal computers (without any finding that its
Windows monopoly is either per se unlawful or unlawfully obtained)
and that Microsoft had reinforced and extended its monopoly by a
variety of business practices that the instant remedy is intended to
rectify. Indeed, the trial Court asserted at some length that
computer operating systems may be a natural monopoly in that: (a)
the customer generally is buying the computer for the functionality
provided by their chosen application programs, (b) OEMS have an
over-riding need to sell a machine that works with their hardware
and the unknown customer's application programs, (c) software
publishers find it easier and more economical to write for only one
operating system rather than for several platforms, and (d) most
customers want the operating system that works with the most readily
available standard software so as to be protected with respect to
future needs not fully foreseeable now.
The Court's Findings of Fact noted that while most consumers
might have no objection to a ``free'' internet browser
bolted into their Windows operating system, many business customers
might prefer not to make it easy for their employees to browse the
Internet if their duties do not require it. More generally, there
may be a broader divergence of what features, capabilities, and
level of ``pre-integration'' is wanted and valued by
household consumers and by business (office) customers for personal
computers, and possibly by other significant identifiable market
segments for personal computers. Whether or not the new features may
be in some sense ``free'' of extra charge, they manifestly
take up more memory, disk space, and other computer resources, none
of which are free, and may be more prone to ``bugs'',
security holes, and incompatibilities
[[Page 28305]]
unrelated to the features a particular user actually wants, needs,
values, and in purchasing a personal computer system.
Much of the trial was taken up with ``middleware'', in
particular internet browsers and the Java programming language, as
both were seen as actually--;or at least
potentially--;offering a new standard set of applications
programming interfaces (``hooks'') for other, unrelated
application programs of possibly less market penetration potential,
while the ``middleware'' itself is more susceptible of
being made compatible with non-Windows operating systems (or even
native code interfaces) on the machine hardware side. Others can
comment more perceptively on how effectively the settlement
addresses that problem through its proposed Technical Committee.
Though not as thoroughly addressed at trial, Microsoft appears to
have extended its Windows monopoly into the large business
applications software market (e.g., word processing, spread-sheets,
small databases) through the same kinds of business practices as
were found unlawful with respect to ``middleware.'' That
is, when word processing, spreadsheets, and databases were observed
to be applications that were inducing businesses (including
government, non-profit, etc., ``office'' environments) to
buy computers to put on nearly every employee's desk, Microsoft
first tried to program such applications themselves, then if
unsuccessful, buy up a third-rate contender in the field, threaten
the first-rate contender that if they didn't sell out Microsoft
would not make new API ``hook'' information available to
them on a competitively timely basis, and apparently design special,
undisclosed ``hooks'' into Windows that would make
Microsoft's own applications software run better, faster, and/or
more reliably than competitors'' products, such compatibility
providing great marketing advantage (and commanding higher market
prices) over rival applications program publishers whose products
might be functional superior to Microsoft's offerings in
consumers'' perceptions. Microsoft thereby eventually
established a monopoly for these widely used, and lucrative,
``business'' application programs. Whether the Technical
Committee approach proposed works for ``middleware'',
where there are likely to be only a few, very sophisticated
``middleware'' developers, it is likely to be much less
successful in providing relief to general software and applications
developers and publishers, who are less likely to have the depth of
programming expertise of a middleware developer, or to be able to
make a good case for requesting new API ``hooks'' of
Microsoft's Windows that might be helpful to their new application,
yet that might have the potential to become the new ``next big
thing.'' (That adaptability for new or special needs is one of
the great virtues of open-source operating systems like Linux as one
can add new API hooks as needed and push them into the operating
system when the application program loads. Microsoft, of course, is
unalterably opposed to open-source software as an expropriation of
their intellectual property. While that may be their legitimately
chosen business strategy, it leaves them open to antitrust charges
if they exercise monopoly power in pursuing such a strategy.)
In summary, the Court should carefully consider whether the
negotiated settlement decree will fully and reasonably protect the
public from stifling and channeling of innovation in personal
computers, aside from its direct effects on competitive private
parties. In particular, the Court should inquire carefully into
whether the Technical Committee approach underlying the proposed
consent decree, particularly with respect to general applications
developers/publishers as distinguished from ``middleware''
developers is sufficient to protect the public interest in this fast
moving field.
Respectfully submitted,
Robert L. Randall
The RainForest ReGeneration Institute
1727 Massachusetts Avenue NW
Washington, DC 20036
Telephone: (202) 205-;3366
From: [email protected] @inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
Renata B. Hesse:
I beleive the Proposed Settlement with Microsoft is fair.It is
time for the Government to move forward, lets get the economy back
on its feet. This should be a good stimulus to the stock market and
us individual investors.
The DOJ should spend more time going after the Enron's who have
been robbing the small investors of their pensions.
John J. Strain
16 Corte Almaden
San Rafael, CA> 94903
415-;492-;3310
CC: [email protected]@inetgw
MTC-00028564
From: Katz, Diane S.
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:39pm
Subject: Microsoft
28 January 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
Pursuant to the Tunney Act, please accept these comments in
support of the proposed settlement in the case of U.S. v. Microsoft.
The Mackinac Center for Public Policy is an independent, non-profit
research and educational institute dedicated to consumer choice and
economic growth. Having closely followed the Microsoft case, we have
concluded that consumers have largely benefited from the company's
innovative products and services. In particular, the bundling of
software applications has greatly enhanced consumer capability and
convenience. In the absence of evidence of harm to consumers, it is
in the public interest to end this protracted litigation. A
settlement of the matter would allow Microsoft to focus its
attention once again on producing useful products while also halting
the enormous waste of taxpayers'' dollars on punishing private-
sector success.
There is no question that Microsoft has proved to be an
aggressive competitor. But there is no evidence of either a shortage
of software products or rising prices. Indeed, the software market
has grown tremendously in recent years while product prices have
fallen dramatically. It thus appears that this case was largely
provoked by rivals intent on gaining a competitive advantage through
government force. The unjustified nature of the antitrust complaint
does not warrant further punishment.
Thank you for the opportunity for comment.
Diane Katz
Director of Science Environment and Technology Policy
Mackinac Center for Public Policy
140 West Main Street
P.O. Box 568
Midland, MI 48640
MTC-00028565
From: Mark Cooper
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject'' Microsoft Settlement
Please accept the attached comments on behalf of a variety of
consumer groups.
Dr. Mark N. Cooper
Director of Research
Consumer Federation of America (www.consumerfed.org)
mailto: [email protected]
tel: 301/384-;2204
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff, VS. MICROSOFT CORPORATION,
Defendant
STATES OF NEW YORK ex rel. Attorney General ELIOT SPITZER, et
al., Plaintiff, VS. MICROSOFT CORPORATION, Defendant
Civil Action No. 98-;1232 (CKK)
Civil Action No. 98-;1233 (CKK)
Tunney Act Comments of
Consumer Federation of AmericaCalPIRG
Connecticut Citizen Action Group
ConnPIRG
Consumer Federation of California
Consumers Union
Florida Consumer Action Network
Florida PIRG
Iowa PIRG
Massachusetts Consumers'' Coalition
MassPIRG
Media Access Project
U.S. PIRG
Submitted January 25, 2002
A FINAL JUDGMENT MUST CORRECT THE VIOLATION OF THE LAW
THE MICROSOFT-DOJ PROPOSED FINAL JUDGMENT IS NOT IN THE PUBLIC
INTEREST
We find the Microsoft-Department of Justice final judgment
proposal to be fundamentally flawed. It is as an entirely inadequate
remedy to the sustained, egregious, illegal conduct engaged in by
Microsoft to thwart competition in the software industry and protect
and enhance its own monopolies. Because it fails to protect
consumers, it fails to serve the public interest. It should be
rejected by the District Court.
[[Page 28306]]
FEDERAL LAW REQUIRES PUBLIC COMMENT. THE COURT SHOULD REVIEW ALL
COMMENTS
Federal antitrust law (Tunney Act, 15 U.S.C. 16)
requires the Department of Justice to ``receive and
consider'' comments related to the proposed Microsoft-DOJ
resolution currently under review by Judge Colleen Kollar-Kotelly of
the U.S. District Court for the District of Columbia. Judge Kollar-
Kotelly has ordered the Justice Department to provide to her by
February 27 its response to comments received. The Tunney Act
requires Judge Kollar-Kotelly, in turn, to determine whether the
Microsoft-DOJ proposal is in the ``public interest'' To
make that determination, she may --;to our mind must--;
consider the competitive impact of the proposal, including:
* termination of alleged violations and prevention of future
monopolization,
* provisions for enforcement and modification,
* duration or relief sought,
* anticipated effects of alternative remedies actually
considered, and
* any other considerations bearing upon the adequacy of such
judgment.
Under the Tunney Act, Judge Kollar-Kotelly is also given the
option of reviewing the original comments provided to the Department
of Justice, rather than just the DOJ's response to them. We believe
that Judge Kollar-Kotelly should endeavor to read all comments
submitted in this highly contentious and landmark case. We believe
that the Department of Justice is institutionally disposed to give
inadequate consideration to comments such as these critical to a
resolution that it, along with Microsoft, has proposed.
Our comments demonstrate that determining whether the DO J-
Microsoft proposal is in the public interest should be a fairly
straight forward exercise. The proposal fails to terminate the
antitrust violations of which Microsoft has been found guilty (at
trial and on appeal). Its enforcement provisions are weak at best.
It restricts Microsoft behavior for a much-too-short period of time.
Myriad other problems, discussed below as well as in detailed
analysis attached to these comments prepared by the Consumer
Federation of America and Consumers, encumber and eviscerate an
otherwise vague and loophole-fiddled settlement proposal. Finally, a
strong, workable alternative remedy, advanced by the state attorneys
general who continue to aggressively pursue the case, already has
been submitted to the Court for review. Unlike the Microsoft-DOJ
proposal, that alternative would protect consumers and the public
interest. With such numerous and obvious shortcomings, the District
Court should reject the Microsoft-DOJ proposal in short order.
THE PUBLIC INTEREST TEST REQUIRES THAT FINAL JUDGMENT PROTECTS
CONSUMERS
We insist on such an outcome on behalf of our constituencies,
who are America's average consumers. Our groups have worked on basic
consumer pocketbook issues across the nation for decades, and our
membership numbers in the tens of millions. We believe that the
public interest in this case is properly understood to include the
harms that average consumers have experienced due to Microsoft's
illegally anti-competitive activities. Individual consumers
ultimately paid the price of Microsoft's past abuses of monopoly
power, directly and indirectly, and they will pay for a continuation
of the Microsoft monopoly. Any remedy endorsed by the Court needs to
benefit consumers by restoring competition in those segments of the
software industry that Microsoft has monopolized or is in danger of
monopolizing. We acknowledge that, considering Microsoft's long-
standing unfair business practices and deeply entrenched monopoly,
such a task will not be easy. It is because of these same factors,
however, that it is necessary.
THE SOFTWARE INDUSTRY IS RIPE FOR COMPETITION AND DOES NOT LEND
ITSELF NATURALLY TO MONOPOLY
We begin by rejecting claims that the software industry is prone
to natural monopoly.
Were that the case, Microsoft would not have had to engage in
its systematically anti- competitive practices to maintain and
extend its monopolies. The trial record and reams of trade press
accounts bear testimony to the unnatural acts embraced by Microsoft
to create and protect its monopoly power over the years. These
include leveraging the Windows operating system, slowing or stopping
its own deployment cycle, denying access to application interfaces,
threatening to deny access to its operating system, threatening to
stop developing software for competing platforms, bloating the
operating system with unnecessary functionality, hiding prices in
whole computer configurations, compelling computer manufacturers
(original equipment manufacturers, or OEMs) to use its browser,
reaching pacts with other companies to deny the use of alternative
browsers, and on and on. Though the Department of Justice at least
appears to agree in principle that monopoly in the software industry
is neither natural nor desirable, in practice its
proposal--;prepared jointly with Microsoft allows for the
continuation, if not exacerbation, of Microsoft market power.
In our view, the software industry is ripe for competition.
Competition would yield an explosion of innovation and consumer
convenience. Consumers care about applications, not about operating
systems. Furthermore, most consumers are inclined to invest time and
money in functional applications that they reasonably feel will
endure, be supported, and work compatibility with other programs and
their hardware. Independent vendors are interested, therefore, in
creating products that match consumer expectations.
With the entrenched Microsoft monopoly, independent developers
confront an applications barrier--;Microsoft has such a
significant lock on the computer platform and on applications used,
that many developers are dissuaded from producing new products.
Should the Microsoft monopoly be broken down, developers would look
to create compatible, consumer- friendly products. In fact, that is
what Netscape and Sun attempted to do with Navigator and
Java--;create software, known as ``middleware''
because they insert themselves between the operating system and
applications running on top of the middleware. Because Netscape/Java
was compatible across systems, it threatened Microsoft. Microsoft's
reaction was to launch an illegal campaign to crush Netscape and
undermine Java.
Because Microsoft illegally undertook to prevent competition,
consumers were left with products that did not honestly earn their
place in the marketplace. Microsoft products have not been
disciplined for price and quality by competitors because of the
company's anti-competitive practices. Remove the monopoly, and an
avalanche of competition --;aiming towards operable standards,
innovative products, and better pricing--; will be unleashed.
Such developments would provide undeniable benefit to consumers. The
software market will support, and therefore the public interest
demands, actual competition within and between markets.
THE CHALLENGE BEFORE THE COURT
MICROSOFT'S DEEP-ROOTED ANTI-COMPETITIVE BUSINESS MODEL
Detailing Microsoft's anti-competitive business model is a
nearly interminable task, though it was accomplished well by the
District Court in its Findings of Fact, virtually all of which were
upheld on appeal. The analysis attached by Consumer Federation of
America and Consumers Union describe at length the depths to which
Microsoft would sink to prop up its operating system monopoly, and
to conquer other markets, such as for the browser and business
productivity suites. The list of corporate victims is long, and
includes not just Netscape and Sun, but also IBM, Intel, and Apple.
Figure 1, below, summarizes in simple terms the barriers to
competition that Microsoft has repeatedly erected. We reiterate that
the Department of Justice and the Court should not lose sight of the
fact that such practices ultimately negatively impact individual
consumers, in the forms of higher prices, reduced choice, and
inferior products and service.
CONSUMERS ARE HARMED BY MICROSOFT'S ABUSE OF MARKET POWER
Microsoft's widespread, unlawful practices, which the Microsoft-
DOJ proposal fails to correct, harm consumers both qualitatively and
monetarily. The harms are sufficiently great to require that the
Court avoid a ``quick fix.'' It is much more important to
devote a reasonable amount of time to get the final judgment right
and protect consumers.
Microsoft's anticompetitive practices deny consumers choice.
Microsoft strictly forces computer manufacturers to buy one bundle
with all of its programs preloaded and biases the screen location,
start sequences and default options. As a result, it becomes
substantially difficult to choose non-Microsoft products. Products
tailored to meet individual consumer needs (consumer friendly
configurations, small bundles) are una vailable and eventually
competing products disappear from the market. Further, by
foreclosing the primary channels of
[[Page 28307]]
distribution with exclusive contracts and other deals, Microsoft
forces consumers of non-Microsoft products to acquire them in time-
consuming and inconvenient ways.
FIGURE 1: HOW MICROSOFT STOPS COMPETITION AND HARMS CONSUMERS
CONSUMER
DENY CUSTOMER CHOICE Force bundles so OEMs won't install
competing software Control the boot screen and desktop Restrict
icons and add/remove buttons
CLOSE DOWN DISTRIBUTION<5>Exclusionary deals with Internet
Access Providers. Prevent computer manufacturers from preinstalling
non-Microsoft products Commingling code to make it hard to
preinstall non-Microsoft products
UNDERMINE FUNCTIONALITY DEVELOPMENT AND PRODUCT SUPPORT Restrict
functionality Prevent developers from focusing on non-Microsoft
products Deceive developers into supporting proprietary products
Undermine compatibility Prevent support for competing products
SOFTWARE DEVELOPER
In addition, Microsoft's practices impair quality and
innovation. Because of Microsoft's leveraging of the operating
system, superior products are delayed or driven from the
marketplace. The District Court noted at least six instances in
which Microsoft sought to delay the development of competing
products. It noted as well several instances in which it delayed the
delivery of its own products to accomplish an anti-competitive
purpose. Resources are denied to and investment is chilled in
competing products, slowing advances in technology and rendering
some libraries of content obsolete. In addition, in several
instances the Court found that Microsoft had undermined the ability
of software applications or middleware to function properly with the
Windows operating system. Thus, Microsoft has been quite willing to
undermine the quality of its own and of competing products to
preserve its market dominance.
In addition to qualitative harm, consumers have suffered
monetary harm. The historical behavior of prices makes it possible
to draw a direct line between competition and lower prices.
Eliminating competition, as Microsoft has, results in higher prices.
The fact that the excess price results from a failure to pass cost
reductions through to consumers does not change the fact that
consumers are overcharged. Nor does the fact that consumers do not
pay for the software directly. In fact, there was a substantial
increase in the price of Microsoft products in the 1990s that
consumers paid in the price of the PCs they purchased. Of course,
consumers do pay directly in the case of upgrades and for
applications.
The centerpiece of Microsoft's pricing strategy has been to
increase operating system prices while other components of the
delivered PC bundle have fallen. Evidence at trial gave explicit
estimates of the price of operating systems. The average
preinstalled price is given as $19 in 1990 and over $49 in 1996.
During that time span the average Microsoft revenue for preinstalled
software rose from $25 to $62. Microsoft recognizes that it has been
the beneficiary of volume growth created by the falling price of the
PC, which masks its increasing prices. Thus, one of the key elements
in Microsoft's business model is to bury its products in bundles.
This hides the price from the public and allows Microsoft to hide
behind the declining price of the total package.
The Consumer Federation of America has estimated that in the
five years between the start of the anticompetitive attack on the
browser in 1995 and the District Court finding of liability,
Microsoft overcharged consumers by about $20 billion. The economic
analysis of other experts suggests overcharges of as much as $30
billion.
In addition to direct monetary costs, indirect monetary costs of
the Microsoft monopoly also present themselves. Though difficult to
calculate, they are no less significant, and demand to be
considered. Consumers, individual and corporate, have undoubtedly
lost hundreds of millions of dollars due to such issues as training,
rapid upgrade cycles, software crashes, bloated bundles, debugging,
service, and hardware upgrades.
WINDOWS XP/.NET, LEFT UNCHECKED, ENHANCES AND EXPANDS THE
MICROSOFT MONOPOLY
Microsoft's brazen disrespect for the antitrust laws is nowhere
more readily apparent than in the design of its newest bundle of
products (``Windows XP,'' and the ``.NET''
initiative, hereafter referred to as ``Windows XP/.NET'). The
product is so blatantly at odds with the Court's ruling Microsoft
must have designed it on the mistaken assumption that Microsoft
would prevail in its appeal.
The extreme reliance of ``Windows XP/.NET'' on a huge
bundle of entire applications and the continued reliance on
contractual and technological bundling fly in the face of the
Court's cautionary words. Windows XP and the .NET initiative are a
bundle of services bolted together by technological links (code
embedded in the operating system), contractual requirements, and
marketing leverage.
The software, applications, and services that Microsoft has
bundled cover all of the functionalities that are converging on the
Internet, including communications, commerce, applications, and
service. Today these Internet activities are vigorously competitive,
just as the browser was before Microsoft launched its victorious
attack against Netscape. In other words, the anticompetitive and
illegal business practices Microsoft used to win the browser war are
being extended to virtually every other application that consumers
use. The bundle is built on commingled code, proprietary languages,
and exclusive functionalities that are promoted by restrictive
licenses, refusal to support competing applications, embedded links,
and deceptive messages. A strong remedy, unlike the weak one
proposed by Microsoft and the Justice Department, is needed before
Microsoft becomes the monopolist of virtually all computer and
Internet applications.
THE PROPOSED FINAL JUDGMENT FAILS TO PROTECT INDEPENDENT
SOFTWARE DEVELOPERS, COMPUTER MANUFACTURERS, AND CONSUMERS
The history of the case and our analysis of the software
industry show that in order for new software to have a fair chance
to compete, the remedy must:
� create an environment in which independent software
vendors and alternative platform developers are free to develop
products that compete with Windows and with other Microsoft
products,
* free computer manufacturers to install these products without
fear of retaliation, and
* enable consumers to choose among them with equal ease as with
Microsoft products.
The Microsoft-Department of Justice settlement is an abysmal
failure at all three levels. Under the proposed Microsoft-Department
of Justice settlement, Microsoft will be undeterred from continuing
its anticompetitive business practices.
INDEPENDENT SOFTWARE VENDORS GET LITTLE RELIEF UNDER THE
MICROSOFT-DOJ PROPOSAL
Independent software vendors and competing platform developers
will get little relief from Microsoft's continual practice of hiding
and manipulating interfaces. Microsoft has the unreviewable ability
under the proposed settlement to define Windows itself. It therefore
controls whether and how independent software developers will be
able to write programs that run on top of the operating system. The
definitions of software products and functionalities and the
decisions about how to configure applications programming interfaces
(APIs) are left in the hands of Microsoft to an extreme extent. As a
consequence, the company will be encouraged to embed critical
technical specifications deeply into the operating system and
thereby prevent independent software developers from seeing them. To
the extent that Microsoft would actually be required to reveal
anything, it would be so late in the product development cycle that
independent software developers would never be able to catch up to
Microsoft's favored developers.
Furthermore, the Court of Appeals recognized that the Microsoft
monopoly is protected by a large barrier to entry, as many crucial
applications are available only for Windows. The proposed settlement
does nothing to eliminate this ``applications barrier to
entry,'' such as by requiring the porting of Microsoft Office
to other PC platforms. Rather than restore competition, the
Microsoft-DOJ proposal all but legalizes Microsoft's previous
anticompetitive strategy and institutionalizes the Windows monopoly.
COMPUTER MANUFACTURERS HAVE LITTLE ABILITY OR INCENTIVE TO
INSTALL NON-MICROSOFT PRODUCTS UNDER THE PROPOSED FINAL JUDGMENT
The Microsoft-DOJ proposal does not shield computer
manufacturers from Microsoft retaliation. The restriction on
retaliation against computer manufacturers leaves so many loopholes
that any OEM who actually offended Microsoft's wishes would be
committing commercial suicide. Microsoft is given free reign to
favor some, at the expense of others, through incentives and joint
ventures. It is free to withhold access to its other two monopolies
(the browser and
[[Page 28308]]
Microsoft Office) as an inducement to favor the applications that
Microsoft is targeting at new markets, inviting a repeat of the
fiasco in the browser wars. Retaliation in any way, shape, fit,
form, or fashion should be illegal. Any adequate remedy, unlike the
Microsoft- DOJ proposal, must include a prohibition on retaliation
that specifically identifies price and non- price discrimination as
well as applying to all monopoly products.
CONSUMER SOVEREIGNTY IS NOT RESTORED BY THE SETTLEMENT.
Because the proposed settlement requires no removal of
applications, only the hiding of icons, Microsoft preserves the
ability to neuter consumer choice. The boot screen and desktop
remain entirely tilted against competition. Microsoft retains the
ability to be the pervasive default option and is allowed to harass
consumers who switch to non-Microsoft applications. Furthermore, it
still gets to sweep third party applications off the desktop,
forcing consumers to choose them over and over.
GIVEN MICROSOFT'S PAST BEHAVIOR, ENFORCEMENT MUST BE SWIFT WITH
SUBSTANTIAL SANCTIONS FOR NON-COMPLIANCE, BUT THE PFJ PROVIDES NO
SUCH MECHANISMS
After the District Court identifies remedies that can address
these problems, it must enforce them swiftly and aggressively.
Microsoft has shown --;through a decade of investigations,
consent decrees and litigation--; that it will not easily be
deterred from defending and extending its monopoly. Microsoft
behaves as though it believes it has the right to do anything to
eradicate competition. Every one of the illegal acts that led to the
District Court findings of liability, unanimously upheld on appeal,
took place after Microsoft signed its last consent decree.
With three monopolies to use against its potential competitors
(the Windows operating system, the Internet Explorer browser, and
Office in desktop applications), enforcement must be swift and sure,
or competition will never have a chance to take root. The proposed
settlement offers virtually nothing in this regard. The technical
committee set up to (maybe) hear complaints can be easily tied up in
knots by Microsoft because of the vague language that creates it.
Because of the delay in its implementation, the crucial element of
API disclosure will be in place for only four years. If Microsoft
violates the settlement, nothing happens to the company, except that
it must ``endure'' the annoyance of this weak settlement
for an additional two years. Moreover, Virtually every specific
measure of the proposed settlement is either fiddled with
ambiguities or put under the sole discretion of Microsoft. In other
words, Microsoft defines its own sanctions. The Department of
Justice and the Court must not forget that independent software
vendors were the targets of Microsoft's campaign and that the
competitive process in the software market was its victim. When we
review the question of whether the proposed settlement will lift the
yoke of anticompetitive practices from this market, we find that it
will not (see Figure 2). Under the proposed settlement, Microsoft
preserves immense market power and discretion. The settlement cannot
work to restore competition because independent software developers
will not be freed to produce software products in a competitively
neutral environment. As a result, consumers will continue to suffer
at the hands of the Microsoft monopolies. The proposed settlement
does not serve the public interest and must be rejected.
FIGURE 2: SOFTWARE COMPETITION WILL NOT BE RESTORED BECAUSE THE
SETTLEMENT DOES NOT CREATE A LEVEL PLAYING FIELD FOR INDEPENDENT
SOFTWARE VENDORS
DO I HAVE A FAIR CHANCE TO HAVE CONSUMERS USE MY PRODUCT?
Consumers have to choose my software twice to get my icon on the
screen.
Consumers never have to choose Microsoft's; it's still the
default.
Microsoft can sweep my icon off the system every 14 days.
WILL OEMs PUT MY PRODUCT ON THE PC?
Microsoft's code is guaranteed to be in every PC, only its icons
are removed.
My code gets into only those PCs that I convince OEMs to
install.
Microsoft can still give OEMs ``considerations'' to
promote its product.
Microsoft can engage in Joint Ventures and prevent OEMs from
using mine.
Microsoft can leverage its monopoly applications to keep my
products out.
WHAT APIs DO I GET TO SEE?
Only APIs for products Microsoft has already developed.
Only APIs that Microsoft has decided not to move into the
operating system.
Only APIs that Microsoft decides do not compromise its piracy,
virus, licensing, digital rights management, encryption or
authentication systems.
WHEN DO I GET TO SEE THE APIs?
Very late in the process, after Microsoft has had a huge head
start in developing its products.
MTC-00028566
From: Michael Leibowitz
To: Microsoft ATR
Date: 1/28/02 4:32pm
Subject: Microsoft Settlement
I think the proposed settlement stinks. What public good does it
serve?! The enforcement provisions are a farce!
Michael Leibowitz
[[email protected]]
Applications Engineer, Embedded Processors
Cirrus Logic, Inc.
4210 S. Industrial Dr.
Austin, TX 78744
(512)912-;6592
MTC-00028567
From: Michael Shaw
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
Michael Shaw
Systems Administrator
Johnson & Wales University
8 Abbott Park Place
Providence, Rhode Island 02903
P: 401-;598-;4357 F 401-;598-;1511
Michael Shaw
Johnson & Wales University
8 Abbott Park Place
Providence, RI 02903
January 27, 2002
John Ashcroft, Attorney General
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
Based on my background and experience in the technology
industry, I think that the Microsoft antitrust case should be
settled on the terms that are on the table now. Obviously, the terms
could be tinkered with endlessly. Still, after three months of
negotiate with the mediator appointed by the new federal judge on
the case, the parties should have had ample opportunity to make the
agreement as good as they could get it. The terms of the agreement
will make it easier to work with Microsoft, which has been a
stickler for holding to its legal fight from copyright and patent
infringement, to driving a hard bargain in contract negotiations.
For example, Microsoft has been insisting on exclusive marketing
agreements, under which a personal computer, PC, building company
must put Microsoft's Windows operating system on all of its
computers or not receive the legal fight to use Windows at all. The
other terms reflect the same opening up of Microsoft to enable its
partners, rival and competitors an even greater participation in its
overwhelming, and hard earned, success. This settlement will be good
from computing, and good for America.
Thank you for your leadership on this issue.
Sincerely,
Michael Shaw
MTC-00028568
From: Hamid Tabassian
To: Microsoft ATR
Date: 1/28/02 4:40pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
I believe the terms that Microsoft has met or gone beyond the
findings of the Court of Appeals ruling are reasonable and fair to
all parties involved. Furthermore, I believe this settlement
represents the best opportunity for Microsoft and the industry to
move forward.
Thank you.
Hamid Tabassian
128 Sawmill Lakes Blvd
Ponte Vedra, FL 32082
MTC-00028569
From: Brian Greenwood
To: Microsoft ATR
Date: 1/28/02 4:40pm
Subject: Microsoft Settlement
Greetings,
As an executive,engineer and inventor (20+ patents) I would like
to provide the following comments as the final decisions are made
concerning the Microsoft Settlement.
[[Page 28309]]
I have been a user of Microsoft Products since buying my first
personal computer in about 1983. I have also been responsible for
the coordination of information technology within my employer's
organization. In submitting these comments, I am not claiming to
represent the official position of my current employer, but only my
personal views.
The standardization in file formats and software interfaces over
the years has greatly improved the ability of people to communicate
with each other both within organizations and between organizations.
Much of this standardization has come because people selected
Microsoft's Products instead of those of other vendors. Taken as a
whole, Microsoft's solutions have been superior to those offered by
other vendors. The network effect of many users using a common tool
has driven the level of deployment of Microsoft's products.
Do not go beyond the current settlement and impair the ability
of Microsoft's engineers and programmers to create new and improve
their existing software. It should not be the the role of Government
to be in the middle of a company's design efforts.
The current settlement takes sufficient steps to correct the
commercial missteps which were made by the Microsoft team.
Sincerely,
Brian F. Greenwood
6007 Castleton Manor
Cumming, Georgia 30041
email: [email protected]
MTC-00028570
From: Ernest W.
To: Microsoft ATR
Date: 1/28/02 4:40pm
Subject: Microsoft Settlement
US Department Of Justice,
I'm writing to offer support for Microsoft's position in the
current Antitrust scenario against them. I feel that the government
should NOT take adverse action against Microsoft. The marketplace
will do that if the company deserves it. Other parties against
Microsoft in the business realm stand to gain financially against
Microsoft if the software giant gets penalized. They would therefore
offer tons of reasons why Microsoft should be penalized--;of
course.
Please leave business matters of this sort to the marketplace
and consumers instead of lawyers eager for their fees and jealous
business rivals holding daggers behind them.
Thank you.
Ernest Wiatrek
19203 CR 341
Abilene, TX 79601
Ph: 915-;676-;4178
MTC-00028571
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:39pm
Subject: Microsoft Settlement
To: [email protected]
Subject: Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
28 January 2002
Ms. Hesse, As a software engineer with 20 years''
experience developing software for Unix, Windows, Macintosh, and
Linux, I'd like to comment on the Proposed Final Judgment in United
States v. Microsoft. Please find my comments below. A copy of my
comments is also posted on the Web at http://kegel.com/remedy/
remedy2.html.
Sincerely,
Dan Kegel
901 S. Sycamore
Los Angeles, CA 90036
On the Proposed Final Judgment in United States v. Microsoft
Contents
* Introduction
* Understanding the Proposed Final Judgment
How should terms like ``API'',
``Middleware'', and ``Windows OS'' be defined?
How should the Final Judgment erode the Applications Barrier to
Entry?
How should the Final Judgment be enforced?
What information needs to be released to ISVs to encourage
competition, and under what terms?
Which practices towards OEMs should be prohibited?
Which practices towards ISVs should be prohibited?
Which practices towards large users should be prohibited?
Which practices towards end users should be prohibited?
Is the Proposed Final Judgment in the public interest?
*Strengthening the PFJ
Correcting the PFJ's definitions
Release of Information
Prohibition of More Practices Toward OEMs
*Summary
Introduction
As a software engineer with 20 years'' experience
developing software for Unix, Windows, Macintosh, and Linux, I'd
like to comment on the Proposed Final Judgment in United States v.
Microsoft.
According to the Court of Appeals ruling, ``a remedies
decree in an antitrust case must seek to `unfetter a market
from anticompetitive conduct', to terminate the illegal
monopoly, deny to the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future'' (section V.D., p. 99).
Attorney General John Ashcroft seems to agree; he called the
proposed settlement ``strong and historic'', said that it
would end ``Microsoft's unlawful conduct,'' and said
``With the proposed settlement being announced today, the
Department of Justice has fully and completely addressed the anti-
competitive conduct outlined by the Court of Appeals against
Microsoft.''
Yet the Proposed Final Judgment allows many exclusionary
practices to continue, and does not take any direct measures to
reduce the Applications Barrier to Entry faced by new entrants to
the market.
The Court of Appeals affirmed that Microsoft has a monopoly on
Intel-compatible PC operating systems, and that the company's market
position is protected by a substantial barrier to entry (p. 15).
Furthermore, the Court of Appeals affirmed that Microsoft is liable
under Sherman Act .7 2 for illegally maintaining its monopoly by
imposing licensing restrictions on OEMs, IAPs (Internet Access
Providers), ISVs (Independent Software Vendors), and Apple Computer,
by requiring ISVs to switch to Microsoft's JVM (Java Virtual
Machine), by deceiving Java developers, and by forcing Intel to drop
support for cross-platform Java tools.
The fruits of Microsoft's statutory violation include a
strengthened Applications Barrier to Entry and weakened competition
in the Intel-compatible operating system market; thus the Final
Judgment must find a direct way of reducing the Applications Barrier
to Entry, and of increasing such competition.
In the following sections I outline the basic intent of the
proposed final judgment, point out areas where the intent and the
implementation appear to fall short, and propose amendments to the
Proposed Final Judgment (or PFJ) to address these concerns.
Please note that this document is still evolving. Feedback is
welcome; to comment on this document, please join the mailing list
at groups.yahoo.com/group/ms-remedy, or email me directly at dank-
[email protected].
Understanding the Proposed Final Judgment
In crafting the Final Judgment, the judge will face the
following questions:
* How should terms like ``API'',
``Middleware'', and ``Windows OS'' be defined?
* How should the Final Judgment erode the Applications Barrier
to Entry?
* How should the Final Judgment be enforced?
* What information needs to be released to ISVs to encourage
competition, and under what terms?
* Which practices towards OEMs should be prohibited?
* Which practices towards ISVs should be prohibited?
* Which practices towards large users should be prohibited?
* Which practices towards end users should be prohibited?
Here is a very rough summary which paraphrases provisions III.A
through III.J and VI. of the Proposed Final Judgment to give some
idea of how the PFJ proposes to answer those questions:
PFJ Section III: Prohibited Conduct
A. Microsoft will not retaliate against OEMs who support
competitors to Windows, Internet Explorer (IE), Microsoft Java (MJ),
Windows Media Player (WMP), Windows Messenger (WM), or Outlook
Express (OE).
B. Microsoft will publish the wholesale prices it charges the
top 20 OEMs (Original Equipment Manufacturers) for Windows.
C. Microsoft will allow OEMs to customize the Windows menus,
desktop, and boot sequence, and will allow the use of non-Microsoft
bootloaders.
D. Microsoft will publish on MSDN (the Microsoft Developer
Network) the APIs used by IE, MJ, WMP, WM, and OE, so that competing
web browsers, media players, and
[[Page 28310]]
email clients can plug in properly to Windows.
E. Microsoft will license on reasonable terms the network
protocols needed for non-Microsoft applications or operating systems
to connect to Windows servers.
F. Microsoft will not force business partners to refrain from
supporting competitors to Windows, IE, M J, WMP, WM, or OE.
G. (Roughly same as F above.)
H. Microsoft will let users and OEMs remove icons for IE, MJ,
WMP, WM, and OE, and let them designate competing products to be
used instead.
I. Microsoft will license on reasonable terms any intellectual
property rights needed for other companies to take advantage of the
terms of this settlement.
J. This agreement lets Microsoft keep secret anything having to
do with security or copy protection.
PFJ Section VI: Definitions
A. ``API'' (Application Programming Interface) is
defined as only the interfaces between Microsoft Middleware and
Microsoft Windows, excluding Windows APIs used by other application
programs.
K. ``Microsoft Middleware Product'' is defined as
Internet Explorer (IE), Microsoft lava (MJ), Windows Media Player
(WMP), Windows Messenger (WM), and Outlook Express (OE).
U. ``Windows Operating System Product'' is defined as
Windows 2000 Professional, Windows XP Home, and Windows XP
Professional.
The agreement can be summed up in one breath as follows:
Microsoft agrees to compete somewhat less vigorously, and to let
competitors interoperate with Windows in exchange for royalty
payments.
Considering all of the above, one should read the detailed terms
of the Proposed Final Judgment, and ask one final question:
* Is the Proposed Final Judgment in the public interest?
In the sections below, I'll look in more detail at how the PFJ
deals with the above questions. How should terms like
``API'', ``Middleware, and ``Windows OS''
be defined?
The definitions of various terms in Part VI of the PFJ differ
from the definitions in the Findings of Fact and in common usage,
apparently to Microsoft's benefit. Here are some examples:
Definition A: ``API''
The Findings of Fact (? 2) define ``API'' to mean the
interfaces between application programs and the operating system.
However, the PFJ's Definition A defines it to mean only the
interfaces between Microsoft Middleware and Microsoft Windows,
excluding Windows APIs used by other application programs. For
instance, the PFJ's definition of API might omit important APIs such
as the Microsoft Installer APIs which are used by installer programs
to install software on Windows.
Definition J: ``Microsoft Middleware''
The Findings of Fact (? 28) define ``middleware'' to
mean application software that itself presents a set of APIs which
allow users to write new applications without reference to the
underlying operating system. Definition J defines it in a much more
restrictive way, and allows Microsoft to exclude any software from
being covered by the definition in two ways:
1. By changing product version numbers. For example, if the next
version of Internet Explorer were named ``7.0.0'' instead
of ``7'' or ``7.0'', it would not be deemed
Microsoft Middleware by the PFJ.
2. By changing how Microsoft distributes Windows or its
middleware. For example, if Microsoft introduced a version of
Windows which was only available via the Windows Update service,
then nothing in that version of Windows would be considered
Microsoft Middleware, regardless of whether Microsoft added it
initially or in a later update. This is analogous to the loophole in
the 1995 consent decree that allowed Microsoft to bundle its browser
by integrating it into the operating system.
Definition K: ``Microsoft Middleware Product''
Definition K defines ``Microsoft Middleware Product''
to mean essentially Internet Explorer (IE), Microsoft Java (MJ),
Windows Media Player (WMP), Windows Messenger (WM), and Outlook
Express (OE).
The inclusion of Microsoft Java and not Microsoft. NET is
questionable; Microsoft has essentially designated Microsoft. NET
and C# as the successors to Java, so on that basis one would
expect Microsoft. NET to be included in the definition.
The inclusion of Outlook Express and not Outlook is
questionable, as Outlook (different and more powerful than Outlook
Express) is a more important product in business, and fits the
definition of middleware better than Outlook Express.
The exclusion of Microsoft Office is questionable, as many
components of Microsoft Office fit the Finding of Fact's definition
of middleware. For instance, there is an active market in software
written to run on top of Microsoft Outlook and Microsoft Word, and
many applications are developed for Microsoft Access by people who
have no knowledge of Windows APIs.
Definition U: ``Windows Operating System Product''
Microsoft's monopoly is on Intel-compatible operating systems. Yet
the PFJ in definition U defines a ``Windows Operating System
Product'' to mean only Windows 2000 Professional, Windows XP
Home, Windows XP Professional, and their successors. This purposely
excludes the Intel-compatible operating systems Windows XP Tablet PC
Edition and Windows CE; many applications written to the Win32 APIs
can run unchanged on Windows 2000, Windows XP Tablet PC Edition, and
Windows CE, and with minor recompilation, can also be run on Pocket
PC. Microsoft even proclaims at www.microsoft.com/windowsxp/
tabletpc/tabletpcqanda.asp:
``The Tablet PC is the next-generation mobile business PC,
and it will be available from leading computer makers in the second
half of 2002. The Tablet PC runs the Microsoft Windows XP Tablet PC
Edition and features the capabilities of current business laptops,
including attached or detachable keyboards and the ability to run
Windows-based applications.''
and
Pocket PC: Powered by Windows Microsoft is clearly pushing
Windows XP Tablet PC Edition and Pocket PC in places (e.g. portable
computers used by businessmen) currently served by Windows XP Home
Edition, and thus appears to be trying to evade the Final Judgment's
provisions. This is but one example of how Microsoft can evade the
provisions of the Final Judgment by shifting its efforts away from
the Operating Systems listed in Definition U and towards Windows XP
Tablet Edition, Windows CE, Pocket PC, X-Box, or some other
Microsoft Operating System that can run Windows applications.
How should the Final Judgment erode the Applications Barrier to
Entry?
The PFJ tries to erode the Applications Barrier to Entry in two
ways:
1. By forbidding retaliation against OEMs, ISVs, and IHVs who
support or develop alternatives to Windows.
2. By taking various measures to ensure that Windows allows the
use of non-Microsoft middleware. A third option not provided by the
PFJ would be to make sure that Microsoft raises no artificial
barriers against non-Microsoft operating systems which implement the
APIs needed to run application programs written for Windows. The
Findings of Fact (?52) considered the possibility that competing
operating systems could implement the Windows APIs and thereby
directly run software written for Windows as a way of circumventing
the Applications Barrier to Entry. This is in fact the route being
taken by the Linux operating system, which includes middleware
(named WINE) that can run many Windows programs.
By not providing some aid for ISVs engaged in making Windows-
compatible operating systems, the PFJ is missing a key opportunity
to encourage competition in the Intel-compatible operating system
market. Worse yet, the PFJ itself, in sections III.D. and III.E.,
restricts information released by those sections to be used
``for the sole purpose of interoperating with a Windows
Operating System Product''. This prohibits ISVs from using the
information for the purpose of writing operating systems that
interoperate with Windows programs. How should the Final Judgment be
enforced?
The PFJ as currently written appears to lack an effective
enforcement mechanism. It does provide for the creation of a
Technical Committee with investigative powers, but appears to leave
all actual enforcement to the legal system.
What information needs to be released to ISVs to encourage
competition, and under what terms? The PFJ provides for increased
disclosure of technical information to ISVs, but these provisions
are flawed in several ways:
1. The PFJ fails to require advance notice of technical
requirements
Section III.H.3. of the PFJ requires vendors of competing
middleware to meet ``reasonable technical requirements''
seven months before new releases of Windows, yet it does not require
Microsoft to disclose those requirements in advance. This allows
Microsoft to bypass all competing middleware simply by changing the
requirements shortly before the deadline, and not informing ISVs.
2. API documentation is released too late to help ISVs Section
III.D. of the PFJ requires
[[Page 28311]]
Microsoft to release via MSDN or similar means the documentation for
the APIs used by Microsoft Middleware Products to interoperate with
Windows; release would be required at the time of the final beta
test of the covered middleware, and whenever a new version of
Windows is sent to 150,000 beta testers. But this information would
almost certainly not be released in time for competing middleware
vendors to adapt their products to meet the requirements of section
III.H.3, which states that competing middleware can be locked out if
it fails to meet unspecified technical requirements seven months
before the final beta test of a new version of Windows.
3. Many important APIs would remain undocumented
The PFJ's overly narrow definitions of ``Microsoft
Middleware Product'' and ``API'' means that Section
III.D.'s requirement to release information about Windows interfaces
would not cover many important interfaces.
4. Unreasonable Restrictions are Placed on the Use of the
Released Documentation
ISVs writing competing operating systems as outlined in Findings
of Fact (?52) sometimes have difficulty understanding various
undocumented Windows APIs. The information released under section
III.D. of the PFJ would aid those ISVs--;except that the PFJ
disallows this use of the information. Worse yet, to avoid running
afoul of the PFJ, ISVs might need to divide up their engineers into
two groups: those who refer to MSDN and work on Windows-only
applications; and those who cannot refer to MSDN because they work
on applications which also run on non-Microsoft operating systems.
This would constitute retaliation against ISVs who support competing
operating systems.
5. File Formats Remain Undocumented
No part of the PFJ obligates Microsoft to release any
information about file formats, even though undocumented Microsoft
file formats form part of the Applications Barrier to Entry (see
``Findings of Fact'' ?20 and ? 39).
6. Patents covering the Windows APIs remain undisclosed
Section III.I of the PFJ requires Microsoft to offer to license
certain intellectual property rights, but it does nothing to require
Microsoft to clearly announce which of its many software patents
protect the Windows APIs (cf. current practice at the World Wide Web
Consortium, http://www.w3.org/TR/patent-practice). This leaves
Windows-compatible operating systems in an uncertain state: are
they, or are they not infringing on Microsoft software patents? This
can scare away potential users, as illustrated by this report from
Codeweavers, Inc.:
When selecting a method of porting a major application to Linux,
one prospect of mine was comparing Wine [a competing implementation
of some of the Windows APIs] and a toolkit called
`MainWin'. MainWin is made by Mainsoft, and Mainsoft
licenses its software from Microsoft. However, this customer elected
to go with the Mainsoft option instead. I was told that one of the
key decision making factors was that Mainsoft representatives had
stated that Microsoft had certain critical patents that Wine was
violating. My customer could not risk crossing Microsoft, and
declined to use Wine. I didn't even have a chance to determine which
patents were supposedly violated; nor to disprove the validity of
this claim.
The PFJ, by allowing this unclear legal situation to continue,
is inhibiting the market acceptance of competing operating systems.
Which practices towards OEMs should be prohibited?
The PFJ prohibits certain behaviors by Microsoft towards OEMs,
but curiously allows the following exclusionary practices:
Section III.A.2. allows Microsoft to retaliate against any OEM
that ships Personal Computers containing a competing Operating
System but no Microsoft operating system.
Section III.B. requires Microsoft to license Windows on uniform
terms and at published prices to the top 20 OEMs, but says nothing
about smaller OEMs. This leaves Microsoft free to retaliate against
smaller OEMs, including important regional `white box''
OEMs, if they offer competing products.
Section III.B. also allows Microsoft to offer unspecified Market
Development Allowances--;in effect, discounts--;to OEMs. For
instance, Microsoft could offer discounts on Windows to OEMs based
on the number of copies of Microsoft Office or Pocket PC systems
sold by that OEM. In effect, this allows Microsoft to leverage its
monopoly on Intel-compatible operating systems to increase its
market share in other areas, such as office software or ARM-
compatible operating systems.
By allowing these practices, the PFJ is encouraging Microsoft to
extend its monopoly in Intel-compatible operating systems, and to
leverage it into new areas.
Which practices towards ISVs should be prohibited?
Sections III.F. and III.G. of the PFJ prohibit certain
exclusionary licensing practices by Microsoft towards ISVs.
However, Microsoft uses other exclusionary licensing practices,
none of which are mentioned in the PFJ.
Several of Microsoft's products'' licenses prohibit
the products'' use with popular non-Microsoft middleware and
operating systems. Two examples are given below.
1. Microsoft discriminates against ISVs who ship Open Source or
Free Software applications
The Microsoft Windows Media Encoder 7.1 SDK EULA states ... you
shall not distribute the REDISTRIBUTABLE COMPONENT in conjunction
with any Publicly Available Software. ``Publicly Available
Software'' means each of (i) any software that contains, or is
derived in any manner (in whole or in part) from, any software that
is distributed as free software, open source software (e.g. Linux)
or similar licensing or distribution models ... Publicly Available
Software includes, without limitation, software licensed or
distributed under any of the following licenses or distribution
models, or licenses or distribution models similar to any of the
following: GNU's General Public License (GPL) or Lesser/Library GPL
(LGPL); The Artistic License (e.g., PERL); the Mozilla Public
License; the Netscape Public License; the Sun Community Source
License (SCSL); ...
Many Windows APIs, including Media Encoder, are shipped by
Microsoft as add-on SDKs with associated redistributable components.
Applications that wish to use them must include the add-ons, even
though they might later become a standard part of Windows.
Microsoft often provides those SDKs under End User License
Agreements (EULAs) prohibiting their use with Open Source or Free
Software applications. This harms ISVs who choose to distribute
their applications under Open Source or Free Software licenses; they
must hope that the enduser has a sufficiently up-to-date version of
the addon API installed, which is often not the case.
Applications potentially harmed by this kind of EULA include the
competing middleware product Netscape 6 and the competing office
suite StarOffice; these EULAs thus can cause support problems for,
and discourage the use of, competing middleware and office suites.
Additionally, since Open Source or Free Software applications
tend to also run on non-Microsoft operating systems, any resulting
loss of market share by Open Source or Free Software applications
indirectly harms competing operating systems.
2. Microsoft discriminates against ISVs who target Windows-
compatible competing Operating Systems The Microsoft Platform SDK,
together with Microsoft Visual C++, is the primary toolkit used by
ISVs to create Windows-compatible applications. The Microsoft
Platform SDK EULA says:
``Distribution Terms. You may reproduce and distribute ...
the Redistributable Components... provided that (a) you distribute
the Redistributable Components only in conjunction with and as a
part of your Application solely for use with a Microsoft Operating
System Product...'' This makes it illegal to run many programs
built with Visual C++ on Windows-compatible competing operating
systems.
By allowing these exclusionary behaviors, the PFJ is
contributing to the Applications Barrier to Entry faced by competing
operating systems.
Which practices towards large users should be prohibited?
The PFJ places restrictions on how Microsoft licenses its
products to OEMs, but not on how it licenses products to large users
such as corporations, universities, or state and local governments,
collectively referred to as `enterprises'. Yet
enterprise license agreements often resemble the per-processor
licenses which were prohibited by the 1994 consent decree in the
earlier US v. Microsoft antitrust case, in that a fee is charged for
each desktop or portable computer which could run a Microsoft
operating system, regardless of whether any Microsoft software is
actually installed on the affected computer. These agreements are
anticompetitive because they remove any financial incentive for
individuals or departments to run non-Microsoft software.
Which practices towards end users should be prohibited?
Microsoft has used both restrictive licenses and intentional
incompatibilities to discourage users from running Windows
[[Page 28312]]
applications on Windows-compatible competing operating systems. Two
examples are given below.
1. Microsoft uses license terms which prohibit the use of
Windows-compatible competing operating systems MSNBC (a subsidiary
of Microsoft) offers software called NewsAlert. Its EULA states
``MSNBC Interactive grants you the right to install and use
copies of the SOFTWARE PRODUCT on your computers running validly
licensed copies of the operating system for which the SOFTWARE
PRODUCT was designed [e.g., Microsoft Windows(r) 95; Microsoft
Windows NT(r), Microsoft Windows 3.x, Macintosh, etc.] .... ``
Only the Windows version appears to be available for download.
Users who run competing operating systems (such as Linux) which can
run some Windows programs might wish to run the Windows version of
NewsAlert, but the EULA prohibits this. MSNBC has a valid interest
in prohibiting use of pirated copies of operating systems, but much
narrower language could achieve the same protective effect with less
anticompetitive impact. For instance, ``MSNBC Interactive
grants you the fight to install and use copies of the SOFTWARE
PRODUCT on your computers running validly licensed copies of
Microsoft Windows or compatible operating system.''
2. Microsoft created intentional incompatibilities in Windows
3.1 to discourage the use of non-Microsoft operating systems
An episode from the 1996 Caldera v. Microsoft antitrust lawsuit
illustrates how Microsoft has used technical means
anticompetitively.
Microsoft's original operating system was called MS-DOS.
Programs used the DOS API to call up the services of the operating
system. Digital Research offered a competing operating system,
DR-;DOS, that also implemented the DOS API, and could run
programs written for MS-;DOS. Windows 3.1 and earlier were not
operating systems per se, but rather middleware that used the DOS
API to interoperate with the operating system.
Microsoft was concerned with the competitive threat posed by DR-
DOS, and added code to beta copies of Windows 3. I so it would
display spurious and misleading error messages when run on DR-DOS.
Digital Research's successor company, Caldera, brought a private
antitrust suit against Microsoft in 1996. (See the original
complaint, and Caldera's consolidated response to Microsoft's
motions for partial summary judgment.) The judge in the case ruled
that ``Caldera has presented sufficient evidence that the
incompatibilities alleged were part of an anticompetitive scheme by
Microsoft.''
That case was settled out of court in 1999, and no court has
fully explored the alleged conduct. The concern here is that, as
competing operating systems emerge which are able to run Windows
applications, Microsoft might try to sabotage Windows applications,
middleware, and development tools so that they cannot run on non-
Microsoft operating systems, just as they did earlier with Windows
3.1.
The PFJ as currently written does nothing to prohibit these
kinds of restrictive licenses and intentional incompatibilities, and
thus encourages Microsoft to use these techniques to enhance the
Applications Barrier to Entry, and harming those consumers who use
non-Microsoft operating systems and wish to use Microsoft
applications software.
Is the Proposed Final Judgment in the public interest?
The problems identified above with the Proposed Final Judgment
can be summarized as follows:
* The PFJ doesn't take into account Windows-compatible competing
operating systems
o Microsoft increases the Applications Barrier to Entry by using
restrictive license terms and intentional incompatibilities. Yet the
PFJ fails to prohibit this, and even contributes to this part of the
Applications Barrier to Entry.
* The PFJ Contains Misleading and Overly Narrow Definitions and
Provisions
?? The PFJ supposedly makes Microsoft publish its secret APIs,
but it defines ``API'' so narrowly that many important
APIs are not covered.
?? The PFJ supposedly allows users to replace Microsoft
Middleware with competing middleware, but it defines
``Microsoft Middleware'' so narrowly that the next version
of Windows might not be covered at all.
?? The PFJ allows users to replace Microsoft Java with a
competitor's product--;but Microsoft is replacing Java with
.NET. The PFJ should therefore allow users to replace Microsoft. NET
with competing middleware.
?? The PFJ supposedly applies to ``Windows'', but it
defines that term so narrowly that it doesn't cover Windows XP
Tablet PC Edition, Windows CE, Pocket PC, or the X-
Box--;operating systems that all use the Win32 API and are
advertised as being ``Windows Powered''.
?? The PFJ fails to require advance notice of technical
requirements, allowing Microsoft to bypass all competing middleware
simply by changing the requirements shortly before the deadline, and
not informing ISVs.
?? The PFJ requires Microsoft to release API documentation to
ISVs so they can create compatible middleware--;but only after
the deadline for the ISVs to demonstrate that their middleware is
compatible.
?? The PFJ requires Microsoft to release API
documentation--;but prohibits competitors from using this
documentation to help make their operating systems compatible with
Windows.
?? The PFJ does not require Microsoft to release documentation
about the format of Microsoft Office documents.
?? The PFJ does not require Microsoft to list which software
patents protect the Windows APIs. This leaves Windows-compatible
operating systems in an uncertain state: are they, or are they not
infringing on Microsoft software patents? This can scare away
potential users.
* The PFJ Fails to Prohibit Anticompetitive License Terms
currently used by Microsoft
?? Microsoft currently uses restrictive licensing terms to keep
Open Source or Free Software apps from running on Windows.
?? Microsoft currently uses restrictive licensing terms to keep
Windows apps from running on competing operating systems.
?? Microsoft's enterprise license agreements (used by large
companies, state governments, and universities) charge by the number
of computers which could run a Microsoft operating system--;even
for computers running Linux. (Similar licenses to OEMs were once
banned by the 1994 consent decree.)
* The PFJ Fails to Prohibit Intentional Incompatibilities
Historically Used by Microsoft
?? Microsoft has in the past inserted intentional
incompatibilities in its applications to keep them from running on
competing operating systems.
* The PFJ Fails to Prohibit Anticompetitive Practices Towards
OEMs
?? The PFJ allows Microsoft to retaliate against any OEM that
ships Personal Computers containing a competing Operating System but
no Microsoft operating system.
?? The PFJ allows Microsoft to discriminate against small
OEMs--;including regional `white box'' OEMs which are
historically the most willing to install competing operating
systems--;who ship competing software.
?? The PFJ allows Microsoft to offer discounts on Windows (MDAs)
to OEMs based on criteria like sales of Microsoft Office or Pocket
PC systems. This allows Microsoft to leverage its monopoly on Intel-
compatible operating systems to increase its market share in other
areas.
* The PFJ as currently written appears to lack an effective
enforcement mechanism. Considering these problems, one must conclude
that the Proposed Final Judgment as written allows and encourages
significant anticompetitive practices to continue, and would delay
the emergence of competing Windows-compatible operating systems.
Therefore, the Proposed Final Judgment is not in the public
interest, and should not be adopted without addressing these issues.
Strengthening the PFJ
The above discussion shows that the PFJ does not satisfy the
Court of Appeals'' mandate. Some of the plaintiff States have
proposed an alternate settlement which fixes many of the problems
identified above. The States'' proposal is quite different from
the PFJ as a whole, but it contains many elements which are similar
to elements of the PFJ, with small yet crucial changes.
In the sections below, I suggest amendments to the PFJ that
attempt to resolve some of the demonstrated problems (time pressure
has prevented anything like a complete list of amendments). When
discussing amendments, PFJ text is shown indented; removed text in
shown in [bracketed strikeout], and new text in bold italics.
Correcting the PFJ's definitions
Time constraints do not permit a complete list of needed
changes. As an example, Definition U should be amended to read U.
``Windows Operating System Product'' means [the software
code (as opposed to source code) distributed commercially by
Microsoft for use with Personal Computers as Windows 2000
Professional, Windows XP Home, Windows XP Professional, and
[[Page 28313]]
successors to the foregoing, including the Personal Computer
versions of the products currently code named ``Longhorn''
and ``Blackcomb'' and their successors, including
upgrades, bug fixes, service packs, etc. The software code that
comprises a Windows Operating System Product shall be determined by
Microsoft in its sole discretion. ] any software or firmware code
distributed commercially by Microsoft that is capable of executing
any nontrivial subset of the Win32 APIs, including without exclusion
Windows 2000 Professional, Windows XP Home, Windows XP Professional,
Windows XP Tablet PC Edition, Windows CE, PocketPC 2002, and
successors to the foregoing, including the products currently code
named ``Longhorn'' and ``Blackcomb'' and their
successors, including upgrades, bug fixes, service packs, etc.
Release of Information
Because any new competitor in the Intel-compatible operating
system market must be able to run Windows applications to have a
chance in the market, and because Microsoft has traditionally used
undocumented Windows APIs as part of the Applications Barrier to
Entry, the Final Judgment should provide explicitly for a clear
definition of what APIs a competing operating system must provide to
run Windows applications.
The best way to do this is by submitting the API definitions to
a standards body. This was done in 1994 for the Windows 3.1 APIs
(see Sun's 1994 press release about WABI 2.0 and the Public Windows
Initiative).
The result is Standard ECMA-;234: Application Programming
Interface for Windows (APIW), which provides standard definitions
for an essential subset (four hundred and forty-four out of the
roughly one thousand) of the Windows 3.1 APIs; it was rendered
mostly obsolete by the switch to Windows 95. The Final Judgment
should provide for the creation of something like ECMA-;234 for
the various modem versions of Windows.
Because Microsoft currently claims that it has intellectual
property rights that protect the Windows APIs, but has never spelled
out exactly which patents cover which APIs, the Final Judgment
should force this to be spelled out.
To achieve the above goals, the PFJ should be modified as
follows:
First, Sections III.D and III.E should be amended to remove the
restriction on the use of the disclosed information:
... Microsoft shall disclose ... [for the sole purpose of
interoperating with a Windows Operating System Product,] for the
purpose of interoperating with a Windows Operating System Product or
interoperating with application software written for Windows,
Second, a new section IV.E should be created as follows:
E. Establishment of a Windows API Standards Expert Group
1. Within 60 days of entry of this Final Judgment, the parties
shall create and recommend to the Court for its appointment a six
person Windows API Standards Expert Group (``WASEG'') to
manage the creation, publication, and maintenance of a Windows APIs
Standards Definition (``WASD'') and associated Windows
APIs Standard Compliance Test Suite (``WASCTS''), and to
guide the WASD through the process of being adopted by a standards
body such as ECMA or the IEEE.
The WASD shall be a document, suitable for approval by a
standards body such as ECMA or IEEE, which accurately defines the
inputs, outputs, and behavior of each Windows API, and enumerates
any Essential Claims.
The WASCTS shall be software source code which, when compiled
and run, automatically tests an operating system for compliance with
the WASD, and produces a list of APIs which fail to comply with the
WASD. The test suite should run unattended; that is, it should be
capable of running without human interaction or supervision.
2. Three of the WASEG members shall be experts in software
design and programming, and three of the WASEG members shall be
experts in intellectual property law. No WASEG member shall have a
conflict of interest that could prevent him or her from performing
his or her duties under this Final Judgment in a fair and unbiased
manner. No WASEG member shall have entered into any non-disclosure
agreement that is still in force with Microsoft or any competitor to
Microsoft, nor shall she or he enter into such an agreement during
her or his term on the WASEG. Without limitation to the foregoing,
no WASEG member shall have been employed in any capacity by
Microsoft or any competitor to Microsoft within the past year, nor
shall he or she be so employed during his or her term on the WASEG.
3. Within seven days of entry of this Final Judgment, the
Plaintiffs as a group shall select two software experts and two
intellectual property law experts to be members of the WASEG, and
Microsoft shall select one software expert and one intellectual
property law expert to be members of the WASEG; the Plaintiffs shall
then apply to the Court for appointment of the persons selected by
the Plaintiffs and Microsoft pursuant to this section.
4. Each WASEG member shall serve for an initial term of 30
months. At the end of a WASEG member's initial 30-month term, the
party that originally selected him or her may, in its sole
discretion, either request re-appointment by the Court to a second
30-month term or replace the WASEG member in the same manner as
provided for above.
5. If the United States or a majority of the Plaintiffs
determine that a member of the WASEG has failed to act diligently
and consistently with the purposes of this Final Judgment, or if a
member of the WASEG resigns, or for any other reason ceases to serve
in his or her capacity as a member of the WASEG, the person or
persons that originally selected the WASEG member shall select a
replacement member in the same manner as provided for above.
6. Promptly after appointment of the WASEG by the Court, the
United States shall enter into a Windows API Expert Group services
agreement (``WASEG Services Agreement'') with each WASEG
member that grants the rights, powers and authorities necessary to
permit the WASEG to perform its duties under this Final Judgment.
Microsoft shall indemnify each WASEG member and hold him or her
harmless against any losses, claims, damages, liabilities or
expenses arising out of, or in connection with, the performance of
the WASEG's duties, except to the extent that such liabilities,
losses, damages, claims, or expenses result from misfeasance, gross
negligence, willful or wanton acts, or bad faith by the WASEG
member. The WASEG Services Agreements shall include the following:
a. The WASEG members shall serve, without bond or other
security, at the cost and expense of Microsoft on such terms and
conditions as the Plaintiffs approve, including the payment of
reasonable fees and expenses.
b. The WASEG Services Agreement shall provide that each member
of the WASEG shall comply with the limitations provided for in
section IV.E.2. above.
7. Microsoft shall provide the WASEG with funds needed to
procure office space, telephone, other office support facilities,
consultants, or contractors required by the WASEG.
8. The WASEG shall not have direct access to any part of
Microsoft's computer software source code that is not normally
available to all ISVs. The WASEG shall not enter into any non-
disclosure agreements with Microsoft or third parties. No
implementations of any Windows APIs shall be written or published by
the WASEG.
9. The WASEG shall have the following powers and duties:
a. The WASEG may require Microsoft to provide comprehensive
answers to questions about Microsoft intellectual property claims.
b. The WASEG may require Microsoft to provide comprehensive
answers to questions about the inputs, outputs, and functionality of
any Windows
API; in particular, the WASEG may compel Microsoft to provide
complete documentation for Windows APIs, including hitherto
undocumented or poorly-documented Windows APIs.
c. The WASEG may engage, at the cost and expense of Microsoft,
the services of outside consultants and contractors as required to
fulfill the duties of the WASEG.
d. The WASEG shall establish a publicly available web she not
owned or otherwise controlled by Microsoft, and will publish status
reports and other information there at least as often as once per
month. Documentation on the web site shall be made available subject
to the terms of the GNU Free Documentation License; test suite
source code made available on the web site shall be made available
subject to the terms of the GNU General Public License.
e. The WASEG shall compile to the best of their ability a
complete list of Windows APIs, including for each API the DLL name,
entry point name, entry point ordinal number, return value type, and
parameter types, as well as which versions of Windows it is
supported by and an estimate of what percentage of Popular Windows
Applications use it. The WASEG shall publish this list on the WASEG
web site subject to the GNU Free Documentation License, according to
the following schedule: Within 90 days after the WASEG is convened,
the WASEG shall
[[Page 28314]]
publish this information for at least five hundred Windows APIs. On
the 1st of each month thereafter, the WASEG shall publish this
information for another five hundred Windows APIs. This shall
continue until a complete list of Windows APIs is available on the
web site. The WASEG shall update the list periodically to add
previously unlisted Windows APIs. The WASEG shall periodically check
the list for completeness by installing and running a representative
sample of Popular Windows Applications and Microsoft Middleware
while using tools such as Apius from Sarion Systems Research to
watch the Windows APIs actually invoked by the product or its
installer. The WASEG shall also set up a way for third parties to
report Windows APIs which should be listed, and shall update its
list of Windows APIs accordingly as appropriate.
f. The WASEG shall compile a complete list of Essential Claims,
and an evaluation of which Windows APIs each Essential Claim covers.
The WASEG shall publish this information on the WASEG web site
subject to the GNU Free Documentation License, according to the
following schedule:
Within 90 days after the WASEG publishes a portion of the list
of Windows APIs on its web site, Microsoft shall deliver to the
WASEG a list of the Essential Claims that cover the published
Windows APIs. Within 90 days after the WASEG receives the list of
Essential Claims, the WASEG shall publish its evaluation of which
APIs those Essential Claims cover. This shall continue until such
evaluations for all Essential Claims have been published on the
WASEG web site.
g. The WASEG shall compile documentation for the list of Windows
APIs defined above in section IV.E.9.e, including a complete
description of the meanings of the return values and parameters, and
the effects of the API. The documentation should be composed in a
style similar to that used for the Single Unix Specification
documentation ( http://www.UNIX-systems.org/go/unix). Within 180
days after the WASEG is convened, and on the 1st of every month
thereafter until complete, the WASEG will make available the
currently completed portion of this documentation via its web site.
h. When the three documents described above--;the list of
Windows APIs, the list of Essential Claims and which Windows APIs
they cover, and the documentation for the listed Windows
APIs--;is complete, the WASEG shall undertake to submit them to
a standards body such as ECMA or the IEEE as a Draft WASD Document,
and to make such enhancements and revisions as needed to gain the
acceptance of that document as a standard.
i. The WASEG shall create a WASCTS, and publish it on the WASEG
web site subject to the GNU General Public License, according to the
following schedule: Within 180 days after the WASEG is convened, the
WASEG shall publish test cases for at least one hundred Windows
APIs. On the 1st of each month thereafter, the WASEG shall publish
test cases for at least another one hundred Windows APIs. This shall
continue until a complete WASCTS is available on the web site.
j. In the event that a planned update to Windows or any other
Microsoft product is expected to result in the creation of new
Windows APIs or Essential Claims, or WASEG's list of Windows APIs is
updated, the WASEG shall create addenda to the WASD and WASCTS
covering the new Windows APIs or Essential Claims, make them
available via its web site, and undertake to submit them to the same
standards body as above as an addendum to the standard.
Third, in section VI, Definition A should be amended to read
A. ``Application Programming Interfaces (APIs)'' means
the interfaces, including any associated callback interfaces, that [
Microsoft Middleware running on a Windows Operating System Product
uses to call upon that Windows Operating System Product in order to
obtain any services from that Windows Operating System Product. ]
Microsoft Middleware or Popular Windows Applications running or
being installed on a Windows Operating System Product use to call
upon that Windows Operating System Product or Microsoft Middleware
in order to obtain any services from that Windows Operating System
Product or Microsoft Middleware.
and two new definitions should be added:
V. ``Popular Windows Applications'' means the top 10
selling applications as reported by NPD Intelect Market Tracking in
each of the categories
Business, Education, Finance, Games, Personal Productivity, and
Reference, plus all Microsoft Middleware Products.
W. ``Essential Claims'' shall mean all claims in any
patent or patent application, in any jurisdiction in the world, that
Microsoft owns, or under which Microsoft has the right to grant
licenses without obligation of payment or other consideration to an
unrelated third party, that would necessarily be infringed by
implementation of the Windows APIs Standard Definition by a
competing Operating System. A claim is necessarily infringed
hereunder only when it is not possible to avoid infringing it
because there is no non-infringing alternative for implementing the
required portion of the Windows APIs Standard Definition.
The following are expressly excluded from and shall not be
deemed to constitute Essential Claims:
1. any claims other than as set forth above even if contained in
the same patent as Essential Claims; and
2. claims which would be infringed only by portions of an
implementation that are not required by the Windows APIs Standard
Definition, or enabling technologies that may be necessary to make
or use any product or portion thereof that complies with the Windows
APIs Standard Definition but are not themselves expressly set forth
in the Windows APIs Standard Definition (e.g., compiler technology,
object-oriented technology, etc.) or the implementation of
technology developed elsewhere and merely incorporated by reference
in the body of the Windows APIs Standard Definition.
Prohibition of More Practices Toward OEMs
? III. A. 2. of the Proposed Final Judgment should be amended to
read
2. shipping a Personal Computer that (a) includes both a Windows
Operating System Product and a non-Microsoft Operating System, or
(b) will boot with more than one Operating System, or (c) includes a
non-Microsoft Operating System but no Windows Operating System
Product; or...
Summary
This document demonstrates that there are so many problems with
the PFJ that it is not in the public interest. It also illustrates
how one might try to fix some of these problems.
Dan Kegel
28 January 2002
To: [email protected]
Subject: Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
28 January 2002
Ms. Hesse,
As a software engineer with 20 years'' experience
developing software for Unix, Windows, Macintosh, and Linux, I'd
like to comment on the Proposed Final Judgment in United States v.
Microsoft.
Please find my comments below. A copy of my comments is also
posted on the Web at http://kegel.com/remedy/remedy2.html.
Sincerely,
Dan Kegel
901 S. Sycamore
Los Angeles, CA 90036
On the Proposed Final Judgment in United States
v. Microsoft
Contents
* . Introduction
* . Understanding the Proposed Final Judgment
?? How should terms like ``API'',
``Middleware'', and ``Windows OS'' be defined?
?? How should the Final Judgment erode the Applications Barrier
to Entry?
?? How should the Final Judgment be enforced?
?? What information needs to be released to ISVs to encourage
competition, and under what terms?
?? Which practices towards OEMs should be prohibited?
?? Which practices towards ISVs should be prohibited?
?? Which practices towards large users should be prohibited?
?? Which practices towards end users should be prohibited?
?? Is the Proposed Final Judgment in the public interest?
* . Strengthening the PFJ
?? Correcting the PFJ's definitions
?? Release of Information
?? Prohibition of More Practices Toward OEMs
* . Summary--;
Introduction
As a software engineer with 20 years'' experience
developing software for Unix, Windows, Macintosh, and
Linux, I'd like to comment on the Proposed Final Judgment in
United States v. Microsoft.
According to the Court of Appeals ruling, ``a remedies
decree in an antitrust case must
[[Page 28315]]
seek to unfetter a market from anticompetitive conduct'', to
terminate the illegal monopoly, deny to the defendant the fruits of
its statutory violation, and ensure that there remain no practices
likely to result in monopolization in the future'' (section
V.D., p. 99).
Attorney General John Ashcroft seems to agree; he called the
proposed settlement ``strong and historic'', said that it
would end ``Microsoft's unlawful conduct,'' and said
``With the proposed settlement being announced today, the
Department of Justice has fully and completely addressed the anti-
competitive conduct outlined by the Court of Appeals against
Microsoft.''
Yet the Proposed Final Judgment allows many exclusionary
practices to continue, and does not take any direct measures to
reduce the Applications Barrier to Entry faced by new entrants to
the market.
The Court of Appeals affirmed that Microsoft has a monopoly on
Intel-compatible PC operating systems, and that the company's market
position is protected by a substantial barrier to entry (p. 15).
Furthermore, the Court of Appeals affirmed that Microsoft is liable
under Sherman Act * 2 for illegally maintaining its monopoly by
imposing licensing restrictions on OEMs, IAPs (Internet Access
Providers), ISVs (Independent Software Vendors), and Apple Computer,
by requiring ISVs to switch to Microsoft's JVM (Java Virtual
Machine), by deceiving Java developers, and by forcing Intel to drop
support for cross-platform Java tools.
The fruits of Microsoft's statutory violation include a
strengthened Applications Barrier to Entry and weakened competition
in the Intel-compatible operating system market; thus the Final
Judgment must find a direct way of reducing the Applications Barrier
to Entry, and of increasing such competition.
In the following sections I outline the basic intent of the
proposed final judgment, point out areas where the intent and the
implementation appear to fall short, and propose amendments to the
Proposed Final Judgment (or PFJ) to address these concerns.
Please note that this document is still evolving. Feedback is
welcome; to comment on this document, please join the mailing list
at groups.yahoo.com/group/ms-remedy, or email me directly at dank-
[email protected].
Understanding the Proposed Final Judgment
In crafting the Final Judgment, the judge will face the
following questions:
* � How should terms like ``API'',
``Middleware'', and ``Windows OS'' be defined?
* � How should the Final Judgment erode the Applications
Barrier to Entry?
* � How should the Final Judgment be enforced?
* � What information needs to be released to ISVs to
encourage competition, and under what terms?
* � Which practices towards OEMs should be prohibited?
* Which practices towards ISVs should be prohibited?
* Which practices towards large users should be prohibited?
* � Which practices towards end users should be
prohibited?
Here is a very rough summary which paraphrases provisions III.A
through III.J and VI. of the Proposed Final Judgment to give some
idea of how the PFJ proposes to answer those questions:
PFJ Section III: Prohibited Conduct
A. Microsoft will not retaliate against OEMs who support
competitors to Windows, Internet Explorer (IE), Microsoft Java (MJ),
Windows Media Player (WMP), Windows Messenger (WM), or Outlook
Express (OE).
B. Microsoft will publish the wholesale prices it charges the
top 20 OEMs (Original Equipment Manufacturers) for Windows.
C. Microsoft will allow OEMs to customize the Windows menus,
desktop, and boot sequence, and will allow the use of non-Microsoft
bootloaders.
D. Microsoft will publish on MSDN (the Microsoft Developer
Network) the APIs used by IE, MJ, WMP, WM, and OE, so that competing
web browsers, media players, and email clients can plug in properly
to Windows.
E. Microsoft will license on reasonable terms the network
protocols needed for non-Microsoft applications or operating systems
to connect to Windows servers.
F. Microsoft will not force business partners to refrain from
supporting competitors to Windows, IE, MJ, WMP, WM, or OE.
G. (Roughly same as F above.)
H. Microsoft will let users and OEMs remove icons for IE, MJ,
WMP, WM, and OE, and let them designate competing products to be
used instead.
I. Microsoft will license on reasonable terms any intellectual
property rights needed for other companies to take advantage of the
terms of this settlement.
J. This agreement lets Microsoft keep secret anything having to
do with security or copy protection.
PFJ Section VI: Definitions
A. ``API'' (Application Programming Interface) is
defined as only the interfaces between Microsoft Middleware and
Microsoft Windows, excluding Windows APIs used by other application
programs.
K. ``Microsoft Middleware Product'' is defined as
Internet Explorer (IE), Microsoft Java (MJ), Windows Media Player
(WMP), Windows Messenger (WM), and Outlook Express (OE).
U. ``Windows Operating System Product'' is defined as
Windows 2000 Professional, Windows XP Home, and Windows XP
Professional.
The agreement can be summed up in one breath as follows:
Microsoft agrees to compete somewhat less vigorously, and to let
competitors interoperate with Windows in exchange for royalty
payments.
Considering all of the above, one should read the detailed terms
of the Proposed Final Judgment, and ask one final question:
* � Is the Proposed Final Judgment in the public
interest?
In the sections below, I'll look in more detail at how the PFJ
deals with the above questions. How should terms like
``API'', ``Middleware, and ``Windows OS''
be defined?
The definitions of various terms in Part VI of the PFJ differ
from the definitions in the Findings of Fact and in common usage,
apparently to Microsoft's benefit. Here are some examples:
Definition A: ``API''
The Findings of Fact (* 2) define ``API'' to mean the
interfaces between application programs and the operating system.
However, the PFJ's Definition A defines it to mean only the
interfaces between Microsoft Middleware and Microsoft Windows,
excluding Windows APIs used by otherapplication programs. For
instance, the PFJ's definition of API might omit important APIs such
as the Microsoft Installer APIs which are used by installer programs
to install software on Windows.
Definition J: ``Microsoft Middleware''
The Findings of Fact (28) define ``middleware''
to mean application software that itself presents a set of APIs
which allow users to write new applications without reference to the
underlying operating system. Definition J defines it in a much more
restrictive way, and allows Microsoft to exclude any software from
being covered by the definition in two ways:
1. By changing product version numbers. For example, if the next
version of Internet Explorer were named ``7.0.0'' instead
of ``7'' or ``7.0'', it would not be deemed
Microsoft Middleware by the PFJ.
2. By changing how Microsoft distributes Windows or its
middleware. For example, if Microsoft introduced a version of
Windows which was only available via the Windows Update service,
then nothing in that version of Windows would be considered
Microsoft Middleware, regardless of whether Microsoft added it
initially or in a later update. This is analogous to the loophole in
the 1995 consent decree that allowed Microsoft to bundle its browser
by integrating it into the operating system.
Definition K: ``Microsoft Middleware Product''
Definition K defines ``Microsoft Middleware Product''
to mean essentially Internet Explorer (IE), Microsoft Java (MJ),
Windows Media Player (WMP), Windows Messenger (WM), and Outlook
Express (OE).
The inclusion of Microsoft Java and not Microsoft. NET is
questionable; Microsoft has essentially designated Microsoft. NET
and C# as the successors to Java, so on that basis one would
expect Microsoft.NET to be included in the definition.
The inclusion of Outlook Express and not Outlook is
questionable, as Outlook (different and more powerful than Outlook
Express) is a more important product in business, and fits the
definition of middleware better than Outlook Express. The exclusion
of Microsoft Office is questionable, as many components of Microsoft
Office fit the Finding of Fact's definition of middleware. For
instance, there is an active market in software written to run on
top of Microsoft Outlook and Microsoft Word, and many applications
are developed for Microsoft Access by people who have no knowledge
of Windows APIs.
Definition U: ``Windows Operating System Product''
Microsoft's monopoly is on Intel-compatible operating systems.
Yet the PFJ in definition U defines a ``Windows Operating
System Product'' to mean only Windows 2000 Professional,
Windows XP Home,
[[Page 28316]]
Windows XP Professional, and their successors. This purposely
excludes the Intel-compatible operating systems Windows XP Tablet PC
Edition and Windows CE; many applications written to the Win32 APIs
can run unchanged on Windows 2000, Windows XP Tablet PC Edition, and
Windows CE, and with minor recompilation, can also be run on Pocket
PC. Microsoft even proclaims at www.microsoft.com/windowsxp/
tabletpc/tabletpcqanda.asp:
``The Tablet PC is the next-generation mobile business PC,
and it will be available from leading computer makers in the second
half of 2002. The Tablet PC runs the Microsoft Windows XP Tablet PC
Edition and features the capabilities of current business laptops,
including attached or detachable keyboards and the ability to run
Windows-based applications.'' and
Pocket PC: Powered by Windows
Microsoft is clearly pushing Windows XP Tablet PC Edition and
Pocket PC in places (e.g. portable computers used by businessmen)
currently served by Windows XP Home Edition, and thus appears to be
trying to evade the Final Judgment's provisions. This is but one
example of how Microsoft can evade the provisions of the Final
Judgment by shifting its efforts away from the Operating Systems
listed in Definition U and towards Windows XP Tablet Edition,
Windows CE, Pocket PC, X-Box, or some other Microsoft Operating
System that can run Windows applications. How should the Final
Judgment erode the Applications Barrier to Entry?
The PFJ tries to erode the Applications Barrier to Entry in two
ways:
1. By forbidding retaliation against OEMs, ISVs, and IHVs who
support or develop alternatives to Windows.
2. By taking various measures to ensure that Windows allows the
use of non-Microsoft middleware.
A third option not provided by the PFJ would be to make sure
that Microsoft raises no artificial barriers against non-Microsoft
operating systems which implement the APIs needed to run application
programs written for Windows. The Findings of Fact (paragraph 52)
considered the possibility that competing operating systems could
implement the Windows APIs and thereby directly run software written
for Windows as a way of circumventing the Applications Barrier to
Entry. This is in fact the route being taken by the Linux operating
system, which includes middleware (named WINE) that can run many
Windows programs.
By not providing some aid for ISVs engaged in making Windows-
compatible operating systems, the PFJ is missing a key opportunity
to encourage competition in the Intel-compatible operating system
market. Worse yet, the PFJ itself, in sections III.D. and III.E.,
restricts information released by those sections to be used
``for the sole purpose of interoperating with a Windows
Operating System Product''. This prohibits ISVs from using the
information for the purpose of writing operating systems that
interoperate with Windows programs.
How should the Final Judgment be enforced?
The PFJ as currently written appears to lack an effective
enforcement mechanism. It does provide for the creation of a
Technical Committee with investigative powers, but appears to leave
all actual enforcement to the legal system.
What information needs to be released to ISVs to encourage
competition, and under what terms?
The PFJ provides for increased disclosure of technical
information to ISVs, but these provisions are flawed in several
ways:
1. The PFJ fails to require advance notice of technical
requirements Section III.H.3. of the PFJ requires vendors of
competing middleware to meet ``reasonable technical
requirements'' seven months before new releases of Windows, yet
it does not require Microsoft to disclose those requirements in
advance. This allows Microsoft to bypass all competing middleware
simply by changing the requirements shortly before the deadline, and
not informing ISVs.
2. API documentation is released too late to help ISVs Section
III.D. of the PFJ requires Microsoft to release via MSDN or similar
means the documentation for the APIs used by Microsoft Middleware
Products to interoperate with Windows; release would be required at
the time of the final beta test of the covered middleware, and
whenever a new version of Windows is sent to 150,000 beta testers.
But this information would almost certainly not be released in time
for competing middleware vendors to adapt their products to meet the
requirements of section III.H.3, which states that competing
middleware can be locked out if it fails to meet unspecified
technical requirements seven months before the final beta test of a
new version of Windows.
3. Many important APIs would remain undocumented The PFJ's
overly narrow definitions of ``Microsoft Middleware
Product'' and ``API'' means that Section III.D.'s
requirement to release information about Windows interfaces would
not cover many important interfaces.
4. Unreasonable Restrictions are Placed on the Use of the
Released Documentation ISVs writing competing operating systems as
outlined in Findings of Fact (paragraph 52) sometimes have
difficulty understanding various undocumented Windows APIs. The
information released under section III.D. of the PFJ would aid those
ISVs--;except that the PFJ disallows this use of the
information. Worse yet, to avoid running afoul of the PFJ, ISVs
might need to divide up their engineers into two groups: those who
refer to MSDN and work on Windows-only applications; and those who
cannot refer to MSDN because they work on applications which also
run on non-Microsoft operating systems. This would constitute
retaliation against ISVs who support competing operating systems.
5. File Formats Remain Undocumented
No part of the PFJ obligates Microsoft to release any
information about file formats, even though undocumented Microsoft
file formats form part of the Applications Barrier to Entry (see
``Findings of Fact'' * 20 and * 39).
6. Patents covering the Windows APIs remain undisclosed Section
III.I of the PFJ requires Microsoft to offer to license certain
intellectual property rights, but it does nothing to require
Microsoft to clearly announce which of its many software patents
protect the Windows APIs (cf. current practice at the World Wide Web
Consortium, http://www.w3.org/TR/patent-practice). This leaves
Windows-compatible operating systems in an uncertain state: are
they, or are they not infringing on Microsoft software patents? This
can scare away potential users, as illustrated by this report from
Codeweavers, Inc.:
When selecting a method of porting a major application to Linux,
one prospect of mine was comparing Wine [a competing implementation
of some of the Windows APIs] and a toolkit called
`MainWin'. MainWin is made by Mainsoft, and Mainsoft
licenses its software from Microsoft. However, this customer elected
to go with the Mainsoft option instead. I was told that one of the
key decision making factors was that Mainsoft representatives had
stated that Microsoft had certain critical patents that Wine was
violating. My customer could not risk crossing Microsoft, and
declined to use Wine. I didn't even have a chance to determine which
patents were supposedly violated; nor to disprove the validity of
this claim.
The PFJ, by allowing this unclear legal situation to continue,
is inhibiting the market acceptance of competing operating systems.
Which practices towards OEMs should be prohibited?
The PFJ prohibits certain behaviors by Microsoft towards OEMs,
but curiously allows the following exclusionary practices:
Section III.A.2. allows Microsoft to retaliate against any OEM
that ships Personal Computers containing a competing Operating
System but no Microsoft operating system.
Section III.B. requires Microsoft to license Windows on uniform
terms and at published prices to the top 20 OEMs, but says nothing
about smaller OEMs. This leaves Microsoft free to retaliate against
smaller OEMs, including important regional `white box''
OEMs, if they offer competing products.
Section III.B. also allows Microsoft to offer unspecified Market
Development Allowances--; in effect, discounts--;to OEMs.
For instance, Microsoft could offer discounts on Windows to OEMs
based on the number of copies of Microsoft Office or Pocket PC
systems sold by that OEM. In effect, this allows Microsoft to
leverage its monopoly on Intel-compatible operating systems to
increase its market share in other areas, such as office software or
ARM-compatible operating systems.
By allowing these practices, the PFJ is encouraging Microsoft to
extend its monopoly in Intel-compatible operating systems, and to
leverage it into new areas.
Which practices towards ISVs should be prohibited?
Sections III.F. and III.G. of the PFJ prohibit certain
exclusionary licensing practices by Microsoft towards ISVs.
However, Microsoft uses other exclusionary licensing practices,
none of which are mentioned in the PFJ.
Several of Microsoft's products'' licenses prohibit
the products'' use with popular non-Microsoft middleware and
operating systems. Two examples are given below.
[[Page 28317]]
1. Microsoft discriminates against ISVs who ship Open Source or
Free Software applications
The Microsoft Windows Media Encoder 7.1 SDK EULA states
... you shall not distribute the REDISTRIBUTABLE COMPONENT in
conjunction with any Publicly Available Software. ``Publicly
Available Software'' means each of (i) any software that
contains, or is derived in any manner (in whole or in part) from,
any software that is distributed as free software, open source
software (e.g. Linux) or similar licensing or distribution models
... Publicly Available Software includes, without limitation,
software licensed or distributed under any of the following licenses
or distribution models, or licenses or distribution models similar
to any of the following: GNU's General Public License (GPL) or
Lesser/Library GPL (LGPL); The Artistic License (e.g., PERL); the
Mozilla Public License; the Netscape Public License; the Sun
Community Source License (SCSL); ...
Many Windows APIs, including Media Encoder, are shipped by
Microsoft as add-on SDKs with associated redistributable components.
Applications that wish to use them must include the add-ons, even
though they might later become a standard part of Windows. Microsoft
often provides those SDKs under End User License Agreements (EULAs)
prohibiting their use with Open Source or Free Software
applications. This harms ISVs who choose to distribute their
applications under Open Source or Free Software licenses; they must
hope that the enduser has a sufficiently up-to-date version of the
addon API installed, which is often not the case.
Applications potentially harmed by this kind of EULA include the
competing middleware product Netscape 6 and the competing office
suite StarOffice; these EULAs thus can cause support problems for,
and discourage the use of, competing middleware and office suites.
Additionally, since Open Source or Free Software applications tend
to also run on non-Microsoft operating systems, any resulting loss
of market share by Open Source or Free Software applications
indirectly harms competing operating systems.
2. Microsoft discriminates against ISVs who target Windows-
compatible competing Operating Systems
The Microsoft Platform SDK, together with Microsoft Visual C++,
is the primary toolkit used by ISVs to create Windows-compatible
applications. The Microsoft Platform SDK EULA says:
``Distribution Terms. You may reproduce and distribute ...
the Redistributable Components... provided that (a) you distribute
the Redistributable Components only in conjunction with and as a
part of your Application solely for use with a Microsoft Operating
System Product...''
This makes it illegal to run many programs built with Visual C++
on Windows-compatible competing operating systems.
By allowing these exclusionary behaviors, the PFJ is
contributing to the Applications Barrier to Entry faced by competing
operating systems.
Which practices towards large users should be prohibited?
The PFJ places restrictions on how Microsoft licenses its
products to OEMs, but not on how it licenses products to large users
such as corporations, universities, or state and local governments,
collectively referred to as ``enterprises''. Yet
enterprise license agreements often resemble the per-processor
licenses which were prohibited by the 1994 consent decree in the
earlier US v. Microsoft antitrust case, in that a fee is charged for
each desktop or portable computer which could run a Microsoft
operating system, regardless of whether any Microsoft software is
actually installed on the affected computer. These agreements are
anticompetitive because they remove any financial incentive for
individuals or departments to run non-Microsoft software.
Which practices towards end users should be prohibited?
Microsoft has used both restrictive licenses and intentional
incompatibilities to discourage users from running
Windows applications on Windows-compatible competing operating
systems. Two examples are given below.
1. Microsoft uses license terms which prohibit the use of
Windows-compatible competing operating systems
MSNBC (a subsidiary of Microsoft) offers software called
NewsAlert. Its EULA states ``MSNBC Interactive grants you the
right to install and use copies of the SOFTWARE PRODUCT on your
computers running validly licensed copies of the operating system
for which the SOFTWARE PRODUCT was designed [e.g., Microsoft
Windows(r) 95; Microsoft Windows NT(r), Microsoft Windows 3.x,
Macintosh, etc.] .... ``
Only the Windows version appears to be available for download.
Users who run competing operating systems (such as Linux) which can
run some Windows programs might wish to run the Windows version of
NewsAlert, but the EULA prohibits this.
MSNBC has a valid interest in prohibiting use of pirated copies
of operating systems, but much narrower language could achieve the
same protective effect with less anticompetitive impact. For
instance, ``MSNBC Interactive grants you the right to install
and use copies of the SOFTWARE PRODUCT on your computers running
validly licensed copies of Microsoft Windows or compatible operating
system.''
2. Microsoft created intentional incompatibilities in Windows
3.1 to discourage the use of non-Microsoft operating systems
An episode from the 1996 Caldera v. Microsoft antitrust lawsuit
illustrates how Microsoft has used technical means
anticompetitively.
Microsoft's original operating system was called MS-DOS.
Programs used the DOS API to call up the services of the operating
system. Digital Research offered a competing operating system, DR-
DOS, that also implemented the DOS API, and could run programs
written for MS-DOS. Windows 3.1 and earlier were not operating
systems per se, but rather middleware that used the DOS API to
interoperate with the operating system. Microsoft was concerned with
the competitive threat posed by DR-DOS, and added code to beta
copies of Windows 3.1 so it would display spurious and misleading
error messages when run on DR-DOS.
Digital Research's successor company, Caldera, brought a private
antitrust suit against Microsoft in 1996. (See the original
complaint, and Caldera's consolidated response to Microsoft's
motions for partial summary--; judgment.) The judge in the case
ruled that
``Caldera has presented sufficient evidence that the
incompatibilities alleged were part of an anticompetitive scheme by
Microsoft.''
That case was settled out of court in 1999, and no court has
fully explored the alleged conduct.
The concern here is that, as competing operating systems emerge
which are able to run Windows applications, Microsoft might try to
sabotage Windows applications, middleware, and development tools so
that they cannot run on non-Microsoft operating systems, just as
they did earlier with Windows 3.1.
The PFJ as currently written does nothing to prohibit these
kinds of restrictive licenses and intentional incompatibilities, and
thus encourages Microsoft to use these techniques to enhance the
Applications Barrier to Entry, and harming those consumers who use
non-Microsoft operating systems and wish to use Microsoft
applications software.
Is the Proposed Final Judgment in the public interest?
The problems identified above with the Proposed Final Judgment
can be summarized as follows:
* � The PFJ doesn't take into account Windows-compatible
competing operating systems
?? Microsoft increases the Applications Barrier to Entry--;
by using restrictive license terms and intentional
incompatibilities. Yet the PFJ fails to prohibit this, and even
contributes to this part of the Applications Barrier to Entry.
� The PFJ Contains Misleading and Overly Narrow
Definitions and Provisions
?? The PFJ supposedly makes Microsoft publish its secret APIs,
but it defines ``API'' so narrowly that many important
APIs are not covered.
?? The PFJ supposedly allows users to replace Microsoft
Middleware with competing middleware, but it defines
``Microsoft Middleware'' so narrowly that the next version
of Windows might not be covered at all.
?? The PFJ allows users to replace Microsoft Java with a
competitor's product--;but Microsoft is replacing Java with
.NET. The PFJ should therefore allow users to replace Microsoft. NET
with competing middleware.
?? The PFJ supposedly applies to ``Windows'', but it
defines that term so narrowly that it doesn't cover Windows XP
Tablet PC Edition, Windows CE, Pocket PC, or the X-Box--;
operating systems that all use the Win32 API and are advertised as
being ``Windows Powered''.
?? The PFJ fails to require advance notice of technical
requirements, allowing Microsoft to bypass all competing middleware
simply by changing the requirements shortly before the deadline, and
not informing ISVs.
[[Page 28318]]
?? The PFJ requires Microsoft to release API documentation to
ISVs so they can create compatible middleware--;but only after
the deadline for the ISVs to demonstrate that their middleware is
compatible.
?? The PFJ requires Microsoft to release API
documentation--;but prohibits competitors from using this
documentation to help make their operating systems compatible with
Windows.
?? The PFJ does not require Microsoft to release documentation
about the format of Microsoft Office documents.
?? The PFJ does not require Microsoft to list which software
patents protect the Windows APIs.
This leaves Windows-compatible operating systems in an uncertain
state: are they, or are they not infringing on Microsoft software
patents? This can scare away potential users.
* The PFJ Fails to Prohibit Anticompetitive License Terms
currently used by Microsoft
?? Microsoft currently uses restrictive licensing terms to keep
Open Source or Free Software apps from running on Windows.
?? Microsoft currently uses restrictive licensing terms to keep
Windows apps from running on competing operating systems.
?? Microsoft's enterprise license agreements (used by large
companies, state governments, and universities) charge by the number
of computers which could run a Microsoft operating system--;
even for computers running Linux. (Similar licenses to OEMs were
once banned by the 1994 consent decree.)
* The PFJ Fails to Prohibit Intentional Incompatibilities
Historically Used by Microsoft
?? Microsoft has in the past inserted intentional
incompatibilities in its applications to keep them from running on
competing operating systems,
* � The PFJ Fails to Prohibit Anticompetitive Practices
Towards OEMs
?? The PFJ allows Microsoft to retaliate against any OEM that
ships Personal Computers containing a competing Operating System but
no Microsoft operating system.
?? The PFJ allows Microsoft to discriminate against small
OEMs--;including regional `white box'' OEMs which are
historically the most willing to install competing operating
systems--; who ship competing software.
?? The PFJ allows Microsoft to offer discounts on Windows (MDAs)
to OEMs based on criteria like sales of Microsoft Office or Pocket
PC systems. This allows Microsoft to leverage its monopoly on Intel-
compatible operating systems to increase its market share in other
areas.
* . The PFJ as currently written appears to lack an effective
enforcement mechanism. Considering these problems, one must conclude
that the Proposed Final Judgment as written allows and encourages
significant anticompetitive practices to continue, and would delay
the emergence of competing Windows-compatible operating systems.
Therefore, the Proposed Final Judgment is not in the public
interest, and should not be adopted without addressing these issues.
Strengthening the PFJ
The above discussion shows that the PFJ does not satisfy the
Court of Appeals'' mandate. Some of the plaintiff States have
proposed an alternate settlement which fixes many of the problems
identified above. The States'' proposal is quite different from
the PFJ as a whole, but it contains many elements which are similar
to elements of the PFJ, with small yet crucial changes.
In the sections below, I suggest amendments to the PFJ that
attempt to resolve some of the demonstrated problems (time pressure
has prevented anything like a complete list of amendments). When
discussing amendments, PFJ text is shown indented; removed text in
[], and new text in bold italics.
Correcting the PFJ's definitions
Time constraints do not permit a complete list of needed
changes. As an example, Definition U should be amended to read
U. ``Windows Operating System Product'' means [] any
software or firmware code distributed commercially by Microsoft that
is capable of executing any nontrivial subset of the Win32 APIs,
including without exclusion Windows 2000 Professional, Windows XP
Home, Windows XP Professional, Windows XP Tablet PC Edition, Windows
CE, PocketPC 2002, and successors to the foregoing, including the
products currently code named ``Longhorn'' and
``Blackcomb'' and their successors, including upgrades,
bug fixes, service packs, etc.
Release of Information
Because any new competitor in the Intel-compatible operating
system market must be able to run Windows applications to have a
chance in the market, and because Microsoft has traditionally used
undocumented Windows APIs as part of the Applications Barrier to
Entry, the Final Judgment should provide explicitly for a clear
definition of what APIs a competing operating system must provide to
run Windows applications. The best way to do this is by submitting
the API definitions to a standards body. This was done in 1994 for
the Windows 3.1 APIs (see Sun's 1994 press release about WABI 2.0
and the Public Windows Initiative). The result is Standard ECMA-234:
Application Programming Interface for Windows (APIW), which provides
standard definitions for an essential subset (four hundred and
fourty-four out of the roughly one thousand) of the Windows 3.1
APIs; it was rendered mostly obsolete by the switch to Windows 95.
The Final Judgment should provide for the creation of something like
ECMA-234 for the various modem versions of Windows.
Because Microsoft currently claims that it has intellectual
property rights that protect the Windows APIs, but has never spelled
out exactly which patents cover which APIs, the Final Judgment
should force this to be spelled out.
To achieve the above goals, the PFJ should be modified as
follows:
First, Sections III.D and III.E should be amended to remove the
restriction on the use of the disclosed information:
... Microsoft shall disclose ... [], for the purpose of
interoperating with a Windows Operating System Product or
interoperating with application software written for Windows,
Second, a new section IV.E should be created as follows:
E. Establishment of a Windows API Standards Expert Group
1. Within 60 days of entry of this Final Judgment, the parties
shall create and recommend to the Court for its appointment a six
person Windows API Standards Expert Group (``WASEG'') to
manage the creation, publication, and maintenance of a Windows APIs
Standards Definition (``WASD'') and associated Windows
APIs Standard Compliance Test Suite (``WASCTS''), and to
guide the WASD through the process of being adopted by a standards
body such as ECMA or the IEEE.
The WASD shall be a document, suitable for approval by a
standards body such as ECMA or IEEE, which accurately defines the
inputs, outputs, and behavior of each Windows API, and enumerates
any Essential Claims. The WASCTS shah be software source code which,
when compiled and run, automatically tests an operating system for
compliance with the WASD, and produces a list of APIs which fail to
comply with the WASD. The test suite should run unattended; that is,
it should be capable of running without human interaction or
supervision.
2. Three of the WASEG members shah be experts in software design
and programming, and three of the WASEG members shall be experts in
intellectual property law. No WASEG member shah have a conflict of
interest that could prevent him or her from performing his or her
duties under this Final Judgment in a fair and unbiased manner.
No WASEG member shah have entered into any non-disclosure
agreement that is still in force with Microsoft or any competitor to
Microsoft, nor shah she or he enter into such an agreement during
her or his term on the WASEG. Without limitation to the foregoing,
no WASEG member shah have been employed in any capacity by Microsoft
or any competitor to Microsoft within the past year, nor shall he or
she be so employed during his or her term on the WASEG.
3. Within seven days of entry of this Final Judgment, the
Plaintiffs as a group shall select two software experts and two
intellectual property law experts to be members of the WASEG, and
Microsoft shall select one software expert and one intellectual
property law expert to be members of the WASEG; the Plaintiffs shall
then apply to the Court for appointment of the persons selected by
the Plaintiffs and Microsoft pursuant to this section.
4. Each WASEG member shall serve for an initial term of 30
months. At the end of a WASEG member's initial 30-month term, the
party that originally selected him or her may, in its sole
discretion, either request re-appointment by the Court to a second
30-month term or replace the WASEG member in the same manner as
provided for above.
5. If the United States or a majority of the Plaintiffs
determine that a member of the WASEG has failed to act diligently
and consistently with the purposes of this Final Judgment, or if a
member of the WASEG resigns, or for any other reason ceases to serve
in his or her capacity as a member of the WASEG, the person or
persons that originally selected the WASEG member shall select a
replacement member in the same manner as provided for above.
6. Promptly after appointment of the WASEG by the Court, the
United States shall
[[Page 28319]]
enter into a Windows API Expert Group services agreement
(``WASEG Services Agreement'') with each WASEG member that
grants the rights, powers and authorities necessary to permit the
WASEG to perform its duties under this Final Judgment. Microsoft
shall indemnify each WASEG member and hold him or her harmless
against any losses, claims, damages, liabilities or expenses arising
out of, or in connection with, the performance of the WASEG's
duties, except to the extent that such liabilities, losses, damages,
claims, or expenses result from misfeasance, gross negligence,
willful or wanton acts, or bad faith by the WASEG member. The WASEG
Services Agreements shall include the following:
a. The WASEG members shall serve, without bond or other
security, at the cost and expense of Microsoft on such terms and
conditions as the Plaintiffs approve, including the payment of
reasonable fees and expenses.
b. The WASEG Services Agreement shall provide that each member
of the WASEG shall comply with the limitations provided for in
section IV.E.2. above.
7. Microsoft shall provide the WASEG with funds needed to
procure office space, telephone, other office support facilities,
consultants, or contractors required by the WASEG.
8. The WASEG shall not have direct access to any part of
Microsoft's computer software source code that is not normally
available to all ISVs. The WASEG shall not enter into any non-
disclosure agreements with Microsoft or third parties. No
implementations of any Windows APIs shall be written or published by
the WASEG.
9. The WASEG shall have the following powers and duties:
a. The WASEG may require Microsoft to provide comprehensive
answers to questions about Microsoft intellectual property claims.
b. The WASEG may require Microsoft to provide comprehensive
answers to questions about the inputs, outputs, and functionality of
any Windows API; in particular, the WASEG may compel Microsoft to
provide complete documentation for Windows APIs, including hitherto
undocumented or poorly-documented Windows APIs.
c. The WASEG may engage, at the cost and expense of Microsoft,
the services of outside consultants and contractors as required to
fulfill the duties of the WASEG.
d. The WASEG shall establish a publicly available web site not
owned or otherwise controlled by Microsoft, and will publish status
reports and other information there at least as often as once per
month. Documentation on the web site shall be made available subject
to the terms of the GNU Free Documentation License; test suite
source code made available on the web site shall be made available
subject to the terms of the GNU General Public License.
e. The WASEG shall compile to the best of their ability a
complete list of Windows APIs, including for each API the DLL name,
entry point name, entry point ordinal number, return value type, and
parameter types, as well as which versions of Windows it is
supported by and an estimate of what percentage of Popular Windows
Applications use it. The WASEG shall publish this list on the WASEG
web site subject to the GNU Free Documentation License, according to
the following schedule: Within 90 days after the WASEG is convened,
the WASEG shall publish this information for at least five hundred
Windows APIs. On the 1st of each month thereafter, the WASEG shall
publish this information for another five hundred Windows APIs. This
shall continue until a complete list of Windows APIs is available on
the web site. The WASEG shall update the list periodically to add
previously unlisted Windows APIs. The WASEG shall periodically check
the list for completeness by installing and running a representative
sample of Popular Windows Applications and Microsoft Middleware
while using tools such as Apius from Sarion Systems Research to
watch the Windows APIs actually invoked by the product or its
installer. The WASEG shall also set up a way for third parties to
report Windows APIs which should be listed, and shall update its
list of Windows APIs accordingly as appropriate.
f. The WASEG shall compile a complete list of Essential Claims,
and an evaluation of which Windows APIs each Essential Claim covers.
The WASEG shall publish this information on the WASEG web site
subject to the GNU Free Documentation License, according to the
following schedule: Within 90 days after the WASEG publishes a
portion of the list of Windows APIs on its web site, Microsoft shall
deliver to the WASEG a list of the Essential Claims that cover the
published Windows APIs. Within 90 days after the WASEG receives the
list of Essential Claims, the WASEG shall publish its evaluation of
which APIs those Essential Claims cover. This shall continue until
such evaluations for all Essential Claims have been published on the
WASEG web site.
g. The WASEG shall compile documentation for the list of Windows
APIs defined above in section IV.E.9.e, including a complete
description of the meanings of the return values and parameters, and
the effects of the API. The documentation should be composed in a
style similar to that used for the Single Unix Specification
documentation (http://www.UNIX-systems.org/unix). Within 180 days
after the WASEG is convened, and on the 1st of every month
thereafter until complete, the WASEG will make available the
currently completed portion of this documentation via its web site.
h. When the three documents described above--;the list of
Windows APIs, the list of Essential Claims and which Windows APIs
they cover, and the documentation for the listed Windows
APIs--;is complete, the WASEG shall undertake to submit them to
a standards body such as ECMA or the IEEE as a Draft WASD Document,
and to make such enhancements and revisions as needed to gain the
acceptance of that document as a standard.
i. The WASEG shall create a WASCTS, and publish it on the WASEG
web site subject to the GNU General Public License, according to the
following schedule: Within 180 days after the WASEG is convened, the
WASEG shall publish test cases for at least one hundred Windows
APIs. On the 1st of each month thereafter, the WASEG shall publish
test cases for at least another one hundred Windows APIs. This shall
continue until a complete WASCTS is available on the web site.
j. In the event that a planned update to Windows or any other
Microsoft product is expected to result in the creation of new
Windows APIs or Essential Claims, or WASEG's list of Windows APIs is
updated, the WASEG shall create addenda to the WASD and WASCTS
covering the new Windows APIs or Essential Claims, make them
available via its web site, and undertake to submit them to the same
standards body as above as an addendum to the standard.
Third, in section VI, Definition A should be amended to read
A. ``Application Programming Interfaces (APIs)'' means
the interfaces, including any associated callback interfaces, that
Microsoft Middleware or Popular Windows Applications running or
being installed on a Windows Operating System Product use to call
upon that Windows Operating System Product or Microsoft Middleware
in order to obtain any services from that Windows Operating System
Product or Microsoft Middleware. and two new definitions should be
added:
V. ``Popular Windows Applications'' means the top 10
selling applications as reported by NPD Intelect Market Tracking in
each of the categories Business, Education, Finance, Games, Personal
Productivity, and Reference, plus all Microsoft Middleware Products.
W. ``Essential Claims'' shall mean all claims in any
patent or patent application, in any jurisdiction in the world, that
Microsoft owns, or under which Microsoft has the right to grant
licenses without obligation of payment or other consideration to an
unrelated third party, that would necessarily be infringed by
implementation of the Windows APIs Standard Definition by a
competing Operating System. A claim is necessarily infringed
hereunder only when it is not possible to avoid infringing it
because there is no non-infringing alternative for implementing the
required portion of the Windows APIs Standard Definition.
The following are expressly excluded from and shall not be
deemed to constitute Essential Claims:
1. any claims other than as set forth above even if contained in
the same patent as Essential Claims; and
2. claims which would be infringed only by portions of an
implementation that are not required by the Windows APIs Standard
Definition, or enabling technologies that may be necessary to make
or use any product or portion thereof that complies with the Windows
APIs Standard Definition but are not themselves expressly set forth
in the Windows APIs Standard Definition (e.g., compiler technology,
object-oriented technology, etc.) or the implementation of
technology developed elsewhere and merely incorporated by reference
in the body of the Windows APIs Standard Definition.
Prohibition of More Practices Toward OEMs
III. A. 2. of the Proposed Final Judgment should be
amended to read
[[Page 28320]]
2. shipping a Personal Computer that (a) includes both a Windows
Operating System Product and a non-Microsoft Operating System, or
(b) will boot with more than one Operating System, or (c) includes a
non-Microsoft Operating System but no Windows Operating System
Product; or ...
Summary
This document demonstrates that there are so many problems with
the PFJ that it is not in the public interest.
It also illustrates how one might try to fix some of these
problems.
Dan Kegel
28 January 2002
MTC-00028572
From: Riddle, Doug
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:39pm
Subject: Micrsoft Settlement
To Whom It May Concern:
Whatever steps necessary to bring Microsoft onto a level playing
field where they are accountable to the users of their software and
their competitors should be used. Their software is a National
Security risk and their corporate policies toward competitors only
serve to increase that risk. Do not settle out of court.
Regards,
Doug Riddle
EMCO / Addis MIS Dept.
Mobile (225) 806-;9715
Pager: (225) 339-;8275
Office: (225) 267-;3225
Home: (225) 775-;5691
Disclaimer
1. This e-mail is for the intended recipient only. If you have
received it by mistake please let us know by reply and then delete
it from your system; access, disclosure, copying, distribution or
reliance on any of it by anyone else is prohibited.
2. If you as intended recipient have received this e-mail
incorrectly, please notify the sender (via e-mail) immediately. This
e-mail is confidential and may be legally privileged. DSM does not
guarantee that the information sent and/or received by or with this
e-mail is correct and does not accept any liability for damages
related thereto.
MTC-00028573
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:40pm
Subject: Micrsoft Settlement
(corrected date)
Open Letter to DOJ Re: Microsoft Settlement
To: [email protected]
Subject: Micrsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
28 January 2002
Ms. Hesse,
Please find below a joint open letter signed by 2366 people from
across the United States. I composed the open letter and offered to
collect signatures by email as a simple way for people to express
their views on the Proposed Final Judgment.
I certify that the following list of names was compiled from
email sent to [email protected]; that return
email was used to provide some small degree of assurance that each
submission came from a valid email address; and that I have verified
to the best of my ability that all co-signers are US residents or
citizens.
I am sending the document (http://www.kegel.com/remedy/
remedy2.html) referenced in the joint open letter under separate
cover as my personal Tunney Act comment.
Sincerely,
Dan Kegel
901 S. Sycamore
Los Angeles, CA 90036
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Ms. Hesse,
Under the Tunney Act, we wish to comment on the proposed
Microsoft settlement. We agree with the problems identified in Dan
Kegel's analysis (on the Web at http://www.kegel.com/remedy/
remedy2.html), namely:
* The PFJ doesn't take into account Windows-compatible competing
operating systems
o Microsoft increases the Applications Barrier to Entry by using
restrictive license terms and intentional incompatibilities. Yet the
PFJ fails to prohibit this, and even contributes to this part of the
Applications Barrier to Entry.
* The PFJ Contains Misleading and Overly Narrow Definitions and
Provisions
o The PFJ supposedly makes Microsoft publish its secret APIs,
but it defines ``API'' so narrowly that many important
APIs are not covered.
. The PFJ supposedly allows users to replace Microsoft
Middleware with competing middleware, but it defines
``Microsoft Middleware'' so narrowly that the next version
of Windows might not be covered at all.
. The PFJ allows users to replace Microsoft Java with a
competitor's product --;but Microsoft is replacing Java with
.NET. The PFJ should therefore allow users to replace Microsoft.NET
with competing middleware.
. The PFJ supposedly applies to ``Windows'', but it
defines that term so narrowly that it doesn't cover
Windows XP Tablet PC Edition, Windows CE, Pocket PC, or the X-
Box--;operating systems that all use the Win32 API and are
advertised as being ``Windows Powered''.
. The PFJ fails to require advance notice of technical
requirements, allowing Microsoft to bypass all competing middleware
simply by changing the requirements shortly before the deadline, and
not informing ISVs.
. The PFJ requires Microsoft to release API documentation to
ISVs so they can create compatible middleware--;but only after
the deadline for the ISVs to demonstrate that their middleware is
compatible.
. The PFJ requires Microsoft to release API
documentation--;but prohibits competitors from using this
documentation to help make their operating systems compatible with
Windows.
. The PFJ does not require Microsoft to release documentation
about the format of Microsoft Office documents.
. The PFJ does not require Microsoft to list which software
patents protect the Windows APIs. This leaves Windows-compatible
operating systems in an uncertain state: are they, or are they not
infringing on Microsoft software patents? This can scare away
potential users.
* The PFJ Fails to Prohibit Anticompetitive License Terms
currently used by Microsoft
. Microsoft currently uses restrictive licensing terms to keep
Open Source and Free Software apps from running on Windows.
. Microsoft currently uses restrictive licensing terms to keep
Windows apps from running on competing operating systems.
. Microsoft's enterprise license agreements (used by large
companies, state governments, and universities) charge by the number
of computers which could run a Microsoft operating system--;even
for computers running competing operating systems such as Linux!
(Similar licenses to OEMs were once banned by the 1994 consent
decree,)
* The PFJ Fails to Prohibit Intentional Incompatibilities
Historically Used by Microsoft
. Microsoft has in the past inserted intentional
incompatibilities in its applications to keep them from running on
competing operating systems.
* The PFJ Fails to Prohibit Anticompetitive Practices Towards
OEMs
. The PFJ allows Microsoft to retaliate against any OEM that
ships Personal Computers containing a competing Operating System but
no Microsoft operating system.
. The PFJ allows Microsoft to discriminate against small
OEMs--;including regional ``white box'' OEMs which are
historically the most willing to install competing operating
systems--;who ship competing software.
. The PFJ allows Microsoft to offer discounts on Windows (MDAs)
to OEMs based on criteria like sales of Microsoft office or Pocket
PC systems. This allows Microsoft to leverage its monopoly on Intel-
compatible operating systems to increase its market share in other
areas.
* The PFJ as currently written appears to lack an effective
enforcement mechanism. We also agree with the conclusion reached by
that document, namely that the Proposed Final Judgment, as written,
allows and encourages significant anticompetitive practices to
continue, would delay the emergence of competing Windows-compatible
operating systems, and is therefore not in the public interest.
It should not be adopted without substantial revision to address
these problems.
Sincerely,
Aaron Croyle, Columbus, Ohio; Student, Ohio State University
Aaron Hamid, Ithaca, NY; Java Applications Developer, Cornell
University
Aaron J. Grier, Portland, OR; Embedded Systems Engineer, Frye
Electronics
Aaron Krol, Elma, NY; Electrical Engineer, member, IEEE
[[Page 28321]]
Aaron Lambers, Boise, Idaho; System Administrator, Manpower
Professional
Aaron Sakowski, Cleveland, OH; Information Management, n/a
Aaron Swartz, Highland park, IL; Lead Developer, The Plex
Project
Aaron Tillema, La Crosse, WI; Student, University of
Wisconsin--;La Crosse
Aaron Zinman, San Diego, CA; Student, University of California
at San Diego
Ab Kuenzli, North Pole, Alaska; Technology Manager, Lathrop High
School, Fairbanks
North Star Borough
Abraham Ingersoll, Venice, CA; Programmer, Dajoba
Adam A. Turetzky, Evanston, IL; Technical Support Consultant,
Northwestern University
Adam Bowker, Dover, NH; Student, University of New Hampshire
Adam Bregenzer, Atlanta, GA; Vice President Of Information
Technology,
WebEntrada
Adam Burrill, Seattle, WA; Technology Consultant, n/a
Adam Clayton, Norwich, VT; Software Engineer,
Adam Hitchcock, Ann Arbor, MI; Software Programer, n/a
Adam Houghton, San Antonio, TX; Student, Trinity University
Adam Johnson, Decatur, GA; Graduate Student, Georgia Institute
of Technology
Adam Jones, Fishers, Indiana; Software Engineer, Flexware
Integration
Adam Kessel, Somerville, MA; Student, Northeastern University
School of Law
Adam K. Keys, Dallas, Texas; Student, Southern Methodist
University
Adrian P. Sinnott, Huntington Station, NY; Former campus rep,
Apple
AE Mustain, Oakland, CA; Software Engineer & Manager,
NextBus Information Systems
Afsheen Bigdeli, Boston, MA; n/a
Agris Taurins, Lincoln, NE; Unix Administrator, n/a
Ahmad Baitalmal, Issaquah, WA; IT, Etelos Inc.
Akkana Peck, San Jose, CA; Software Engineer, Netscape
Alain James Bertrand II, West Valley, Utah; PC Technician,
Alorica Inc.
Alan J. Miller, Des Plaines, IL; Senior Engineer, The Standard
Register Company
Alan Overton, Marietta, Georgia; Web content developer, Center
for Assistive
Technology and Environmental
Access, Georgia Tech
Alan Shoemaker, Moreno Valley, California; Customer Service
Technician,
MandrakeSoft Inc.
Alan V. Shackelford, Baltimore, Maryland; Senior Systems
Software Engineer,
The Johns Hopkins University
Alan Wilkinson, Burke, VA; President, Results Computing
Corporation
Alan Zabaro, Glendale, CA; Programmer Analyst, Los Angeles
County
Al Cuenco, Portland, OR; System Administrator, NW Natural
Aleksandr Drel, Brooklyn, NY; Developer, Keane
Alena Waller, Georgetown, KY; Concerned Citizen,
Alex, Aaarons, Indianapolis; System Administrator, Star News
Alex Alegado, Rosemead, CA; President, ThoughtShop Networks
Alexander Johns, Montgomery Village, MD; Programmer, n/a
Alexander Kazura, Pittsfield, Massachusetts; Head Technician, n/
a
Alexander M. Johnson, Santa Cruz, CA; Principal, Arete Systems
Alexander Shvedoff, San Francisco, California; CO0 &
Programmer,
Isomorphic Software
Alexander Stefansky, Santa Cruz, CA; Consultant,
Alexander Wallace, Cedar Park, Texas; Lead Developer / Network
Administrator, RW
Alex Belits, Denver CO; CTO, Belits Computer Systems
Alex Deucher, Arlington, Virginia; Sales Engineer, n/a
Alex Johnson, Cincinnati, Ohio; Freelance Video Producer, n/a
Alex Nicksay, New York, New York; Student, Computer Science and
Film Studies, Columbia University
Alex Weissman, Johnston, RI; Artist and Animator, Worldwinner
Alfredo Azpiazu, Sarasota, Florida; Student, New College of
Florida
Ali Bawany, Austin, TX; n/a
Alice Schafer, Acton, Ma; Senior Database Analyst, MITRE Corp
Alison Chaiken, Fremont, CA; Chief Scientist, WSRCC
Alison N. Smith, Austin, Texas; n/a
Allan T. Walters, Philadelphia, PA; Systems Administrator,
Note.com
Allen Cook, Bowling Green, KY; Student, Western Kentucky
University
Allen D. Malony, Eugene, Oregon; Associate Professor, University
of Oregon
Allen J. Lopp, Lanesvile, IN; Owner/Consultant, 21st Century
Cyber
Allen S. Rout, Gainesville, Florida; Systems Programmer,
University of Florida
Allen W. Goetsch, Chicago, IL; Consultant, Jen-Tech Steele
Alon Harpaz, Ashland, MA; Electrical Engineer, Dover Instrument
Corporation
Alyssa Canann, Costa Mesa, California; Owner, For the Love of
Peat
Amber Jain, Los Angeles, CA; Graduate Student, USC
Andrea J Cameron, Los Angeles, CA; Developer, Avacast
Andre Valente, Los Angeles, CA; Consultant, n/a
Andre Vrignaud, San Jose, CA; n/a
Andrew Barak Sweger, Seattle, WA; Software Developer, n/a
Andrew Bezella, Chicago, IL; n/a
Andrew Biddle, Lake Forest Park, WA; Network Engineer, AT&T
Wireless Services
Andrew C. Bertola, Sunnyvale, CA; Owner, drewb.com
Andrew Chaplin, Buffalo, NY; Lead Operator/System Admin I,
Canisius College
Andrew Chen, East Lansing, MI; Graduate Assistant, Michigan
State University
Andrew Deckowitz, Buffalo Grove, Illinois; Systems Engineer, n/a
Andrew D. Hwang, Worcester, MA; Professor, College of the Holy
Cross
Andrew Gray, Las Vegas, NV; Systems Administrator, University of
Nevada
Andrew Helsley, Calabasas, CA; Student, University of
California, Riverside
Andrew Hermetz, Dayton, Ohio; TechnoShaman, Humanadyne
Andrew Hon, Berkeley, California; Student, University of
California Berkeley
Andrew James Alan Welty, Twentynine Palms, CA; n/a
Andrew J. Murren, Mendham, NJ; Partner, Omni-Tech Solutions
Andrew Klenzak, Atlanta, GA; Embedded Software Engineer, CIENA
Corporation
Andrew Klopp, Denver, CO; HelpDesk Supervisor, Ultimate
Electronics
Andrew Lenharth, Everett, WA; Information Technology Systems
Specialist, State of Washington
Andrew Longton, Rockville, M/D; President, Metamark Corporation
Andrew Lubbers, Phoenix, AZ; Software Engineer, Helm Software
Andrew Lundberg, Baltimore, Maryland; Staff Engineer, Equinox
Corporation
Andrew M. Page, Ithaca, NY; Media Assistant, Cornell University
Andrew O'Brien, Wyomissing, PA; Sattelite Communications
Instructor, NATO
Andrew Park, Cleveland, Ohio; Systems Analyst, Federal Reserve
Bank of Cleveland
Andrew Pavelchek, San Diego, CA; Sr. Electrical Engineer, Maxima
Corporation
Andrew Pfiffer, Aloha, OR; Software Developer, Citizen of USA
Andrew Spencer, Salt Lake City, UT; Software Engineer, falling
blue
Andrew S. Zbikowski, Minneapolis, MN; Information Technology
Specalist, University of Minnesota Computer
Science Dept
Andrew Valkanas, Chicago, IL; Student, NEIU
Andy Barclay, Concord, California; Solaris Systems Architect,
Digital Island
Andy Catalano, College Place, WA; Student, Walla Walla College
Andy Chin, Los Angeles, CA; Student, University of California,
Los Angeles
Andy Cristina, New Orleans, Louisiana; Student, University of
New Orleans, Penta Corporation
Andy Mroczkowski, Philadelphia, PA; , Drexel University
Andy Wismar, Cleveland, Ohio; Internet Application Developer,
Weatherhead School of Management
Angus Crome, Maryville, IL; Systems Administrator, n/a
Anthony Britton, Fairfax, Virginia; Network Engineer, N/A
Anthony Lastowka, Philadelphia, PA; NT/W2K/Linux Administrator,
University of Pennsylvania Medical School
Anthony L Borchers, Coconut Creek, Florida; Senior Engineer,
PowerVision Corporation
Anthony McDowell, MS State University, MS; Student, Mississippi
State University
Anthony Spears, Ames, Iowa; Software Developer, Universal
Systems and Technologies (UNITECH)
Antone Roundy, Spanish Fork, UT; Manager, Mouken
Antonio Arredondo, San Jose, CA; Student, n/a
Ara Aroyan, Davis, California; CSE Student, UC Davis
Aric Stewart, Minneapolis, MN; Programmer, CodeWeavers
[[Page 28322]]
Ari Turetzky, Normal, IL; Development Team Lead, Illinois State
University
Aron S. Spencer, Irvine, CA; Ph.D. Candidate: Graduate School of
Management, UC Irvine
Arrigo Benedetti, Los Angeles, CA; Staff scientist, Caltech
Arthur Corliss, Anchorage, AK; Independent Programmer, n/a
Arthur Michaels, Parsippany, NJ; Software Engineer/Technologist,
Lucent Technologies
Art Johnson, Los Angeles, California; Member lula.org,
linuxatlax.org, CSC-SERC
Artur Kedzierski, Walnut, CA; Graduate Student, University of
California
Ashley M. Kirchner, Boulder, Colorado; System Administrator,
Photo Craft Laboratories, Inc.
Athur Abraham, Oakland, CA; Senior Software Engineer, A-Squared
Systems Group
Attila Mate, New York, NY; Professor of Mathematics, Brooklyn
College of CUNY
Audrey Lee, Princeton, New Jersey; Graduate Student (PhD program
in Electrical Engineering), Princeton University
Aurangzeb M. Agha, San Francisco, CA; President and CEO, Missing
Link Technology Partners
Austin Schutz, Portland, OR; Sr. Network Engineer, Global
Crossing
Barak A. Pearlmutter, Albuquerque, N-M; Professor, University of
New Mexico
Barrett Sylvies, Woodland Hills, CA; Field Service Technician,
n/a
Barrington King, Washington, DC; Co-Founder, Wyrdwright
Barry E. Tolnas, Olympia, WA; Adjunct Faculty, The Evergreen
State College
Barry Rountree, San Diego, CA; Software Engineer, Freelance
Barry Wilson, Beaverton, OR; Software Engineer, n/a
Baxter Michael Gilley, Chester, VA; Student, ECPI Technical
College
B. Charles Reynolds, Seward, Alaska; Independant Business Owner,
Unicity Network
Benjamin C. Kite, Santa Cruz, CA; n/a
Benjamin Cressey, Chapel Hill, NC; Systems Architect, n/a
Benjamin Gilbert, Pittsburgh, PA; Engineering student, Carnegie
Mellon University
Benjamin J. Liberman, Santa Fe, NM; Programmer/Analyst, Accent
Optical Technologies
Benjamin Moore, Marina del Rey, California; Programmer Analyst
IV, USC Institute for Creative Technologies
Benjamin Morse, Somerville, Massachusetts; Student, MIT
Benjamin Moser, Floyds Knobs, Indiana; System Engineer, Kimball
International
Benjamin R. Eastwood, Albany, CA; IT Manager, wilweb.com
Benjamin Russo, Herndon, Virginia; UNIX Systems Administrator,
Currently Unemployed
Benjamin W Pearre, Cambridge, MA; Research Associate, MIT
Ben Messinger, Kennewick, WA; Network Systems Administrator, HFG
Bennett Neale, Santa Monica, California; Software Engineer,
Edmunds.com
Ben Penning, San Diego, CA; Web Programmer, Einstein Industries
Ben Wilson, Louisville, KY; Systems Analyst/Designer, Corvus
Digital Solutions
Beth A. Roe, Sarasota, Florida; Financial Controller &
Consumer
Bevan C. Bennett, Pasadena, California; Manager of Information
Technology, n/a
Bill Abbas, Sanford, FL; Senior Systems Architect, CRM Solutions
Bill Bennett, Gallatin, Tennessee; President, Double B
Consulting
Bill Bisho, Colorado Springs, Colorado; V.P. Information
Technology, H.I.S. Financial Services Corp.
Bill Brody, Troy, Michigan; Electrical Engineer, n/a
Bill Bryan, Paso Robles, California; Owner, Paralegal Services
Bill Cunningham, Sparks, NV; Technical Lead, Bally Gaming and
Systems
Bill Denney, LaGrange, GA; College Student, Georgia Institute of
Technology
Bill Ezell, Manchester, NH; Sr. Software Architect, Granite
Systems
Bill Glover, Amarillo, TX; Enterprise Java Architect, n/a
Bill Huey, San Diego, CA; Software Engineer
Bill Jetzer, Madison, WI; Software Developer, SVA Consulting
Bill Sconce, Milford, NH; President, In Spec, Inc.
Bill Toole, New York, NY; self employed, n/a
Binu Parayil, Ocean, NJ; System Engineer, n/a
Blake Huber, Austin, TX; Director of Eng. Operations,
Coremetrics
Blake Wesley Thomas, Chicago, Illinois; Student, Senior Tutor,
CS, University of Chicago
Bob Alvarez, Chicago, IL; Human Factors Engineer/Software
Engineer, bobalvarez.net
Bob Armstrong, Conway, MA; Consulting Engineer, Compaq
Bobby Hays, Lawrenceville, GA; Graphic Systems Developer,
Network Communications, Inc.
Bob Dehnhardt, Reno, NV; n/a
Bob Hardy, Santa Clara, CA; UNIX Sysadmin, Sanmina-SCI Corp.
Bob Horvath, Arlington Heights, IL; Software Engineer, n/a
Bob Mileti, Torrington, CT; President, Trlby Innovative
Bob Nicksic, Chicago, IL; Technical Product Manager, Peter
Martin Associates
Bob Pendleton, Round Rock, Texas; Owner, Gameprogrammer.com
Bob Stephan, Pebble Beach, California; Owner/Consultant, Moby
Disk
Boyce Fullmer, Plano, TX; Systems Analyst, Flash Computers and
Networks
Brad Baylor, Columbus, OH; Supervisor, Qwest
Bradford Carpenter, Camino, CA; Database Programmer,
Construction NewsNet
Brad Garcia, Freedom, PA; Senior Software Engineer, n/a
Brad Harvell, Chandler, AZ; Senior Engineer, n/a
Bradley Greger, Los Angeles, CA; Neuroscientist, Caltech
Bradley J. Christensen, Berrien Springs, Michigan; Oracle
Database Administrator, Andrews University
Bradley M. Alexander, Amissville, VA; Security Engineer,
VeriSign (acting on my own accord...)
Bradley R. Stone, Columbus, Ohio; Graduate Student, The Ohio
State University
Brad Midgley, Salt Lake, Utah; Developer, n/a
Brad Myers, Bridgeport, WV; Senior Systems Administrator, n/a
Brad O'Hearne, Irvine, CA; Software Engineer
Brad Showalter, Richmond, VA; Information Security Specialist,
Federal Reserve Bank--; Richmond
Brad Smith, Savannah, GA; Computer Engineering Major, Georgia
Institute of Technology
Brandi Weed, Davis, CA; Consultant
Brandon Low, Chicago, Illinois; Graphics and Imaging Specialist,
Copytec, Inc.
Brandon M. Reynolds, Akron, Ohio; Systems Engineer, Commercial
Timesharing Inc. [http://www.comtime.com/]
Brandon Neill, Westminster, CO; Technical Support Engineer, Sun
Microsystems
Brandon Stephens, Huntsville, AL; Network Security
Administrator, CFD Research Corp
Brendan Billingsley, Boulder, Colorado; Student, University of
Colorado at Boulder
Brendan Bouffler, New York, New York; Global Tech Support
Manager, Proximity Corp
Brendan Byrd, Louisville, KY; Web Programmer, Resonator Software
Brent Bryan, Friday Harbor, Washington; Student, Yale University
Brent Chivers, Arlington, VA; Systems Administrator, Mitretek
Systems
Brent Geske, Vancouver, WA; Software Engineer, self
Brent Laminack, Atlanta, GA; Director of e-commerce, Enweben,
LLC.
Brent Pickert, Scottsdale, Arizona; Student, Arizona State
University
Brett Barton, Dublin, OH; Pricing Coordinator, Ashland
Distribution Company
Brett Carter, Portland, OR; Web Engineer, Kavi
Brett Coon, Milpitas, CA; Technical Director, n/a
Brett Johnson, Windsor, CO; Software Engineer, n/a
Brett Kislin, Pompano Beach, FL; Pres., Kislin Consulting
Brett Lorenzen, Alexandria, VA; Consultant and Developer, n/a
Brett Miller, Nashville, TN; Systems Administrator, n/a
Brett Peckinpaugh, Denver, Colorado; System Support Specialist,
Avaya
Brett Presnell, Gainesville, Florida; Associate Professor,
University of Florida
Brett Sanger, Williamsburg, VA; Web Programmer, n/a
Brett Schwarz, North Bend, WA; Lead Network Engineer, n/a
Brian Allemana, Chicago, IL; Web Developer/Consultant, n/a
Brian A. Redding, Champaign, IL; Software Engineer, n/a
Brian Beveridge, Oakland, CA; General Partner, Paradigm Three
Brian Casten, Elgin, IL; Student, Columbia College
Brian Chiko, Saratoga, California; VP Marketing, Vpacket
Communications
[[Page 28323]]
Brian Cleverly, Sacramento, CA; ex Software Developer and now
angry captive Microsft user., Anzam Yacht Refurbishing
Brian Davis, Beaverton, OR; Unix Systems Administrator, n/a
Brian Dellert, Prior Lake, MN; Software Developer, Independent
Consultant
Brian DeRosa, Elk Grove Village, IL; Principal, The Net Squad
Brian D. Klar, Dayton, OH; VTC Engineer, OTS / WPAFB
Brian Fahrlander, Evansville, Indiana; Owner, Kamakiriad.com
Brian Feathers, Arlington, VA; Consultant, n/a
Brian Filipiak, Ypsilanti, MI; Grant Associate, Eastern Michigan
University
Brian Grossman, Fort Collins, Colorado; President, SoftHome
Brian Hall, Colorado Springs, CO; Software Engineer, Northrop
Grumman
Brian Hellman, Osceola, IN; IT manager, 1st Source Bank
Brian Horton, Pflugerville, TX; n/a
Brian J. Brondel, Springfield, MO; Student, Southwest Missouri
State University
Brian Johnson, Durham, NC; IT Analyst, Duke University
Brian Kelly, Chicago, Illinois; Student, DePaul University
Brian Koppe, Buffalo Grove, IL; Undergraduate Student, DePaul
University
Brian LaMere, San Diego, California; UNIX Sysadmin, Diversa
Brian Lau, Huntington Beach, CA; Software Engineer, Gordian Inc.
Brian Martin, Champaign, IL; Webmaster, Farm Credit Services
Brian Mason, Hinesburg, Vermont; Web Developer, Image Mason
Design
Brian McFadden, Altamonte Springs, Florida; Device Driver
Engineer, CDP
Brian M. Fisher, Chapel Hill, NC; Graduate Student in Nuclear
Physics, University of North Carolina at Chapel Hill
Brian M. Schkerke, St. Louis, MO; Vice President Information
Systems, NETCO
Brian Olsen, Aurora, Colorado; Senior Software Developer,
Pixxures Inc.
Brian P. Bilbrey, Sunnyvale, CA; IT/Web/Consultant/Author, Orb
Designs
Brian Redfern, Los Angeles, CA; Linux Programmer
Brian Reichert, Bethlehem, PA; Systems Engineer, n/a
Brian R. Furry, Hackettstown, New Jersey; Mathematics and
Computer Science Teacher, Watchung Hills Regional High School
Brian R. Swan, Elgin, Illinois; internetwork Solutions Engineer,
ThruPoint
Brian Strand, Oakland, California; CTO, Switch Management
Brian Teague, Houston, TX; Computer Science student, Rice
University
Brian Templeton, Starkville, MS; Student, Mississippi State
University
Brian T. Johnson, Bainbridge, GA; Electronics Calibration
Specialist, USN
Brian Vincent, Breckenridge, CO; Telecom Engineer, Copper
Mountain
Brian Weir, Cleveland, Ohio; student, Hiram College
Bridgette Ruggles, Waldwick, NJ; Computer Support/Web Designer,
Cline
Brien Dieterle, Chandler, Arizona; Computer Technician, Maricopa
Community Colleges
Brock Organ, Chapel Hill, NC; QA Engineer, Red Hat Inc
Bruce Armstrong, Orem, Utah; Software Quality Assurance
Engineer, NTT/Verio (www.verio.net
Bruce Buckelew Oakland, CA; Director, Oakland Technnology
Exchange--;West
Bruce E. Birch San Diego, California; Information Systems
Administrator, Biostruct
Bruce Hamilton Redondo Beach, CA; n/a
Bruce Horn, Mammoth Lakes, CA; Chief Technical Officer,
Marketocracy, Inc.
Bruce McCready, Baltimore, FiD; Software Engineer,
Advertising.com
Bruce McFarland, wilmington, DE; President, Absolute Systems Inc
Bruce Rakes, Atlanta, GA; CTO, Zmed
Bruce Rogovin, Cincinnati, Ohio; President, Bruce J. Rogovin DMD
Bruce Timberlake, Carlsbad, CA; Technology Engineer, Sun
Microsystems
Bruce W. Calkins, Wales, MA; n/a
Bryan Carpenter, Loveland, CO; Software Development Engineer,
Agilent Technologies
Bryan Durkee, Oshkosh, WI; NT Server Manager, Winnefox Library
System
Bryan Housel, Philadelphia, PA; Software Engineer, CIM of
Philadelphia
Bryan Newman, Seattle, WA; Programmer, n/a
Bryan Waterman, Monterey, CA; Lieutenant, DOD
Bryce Schober, Seattle, WA; Software Engineer, Dynon Development
Buckley Collum, Los Angeles, CA; Partner, MenaceFX
Buford Lemon, Midland, MI; Dr., A Big Chemical Company
Caleb Mardini, Bellevue, WA; Real Estate Coordinator,
WhyNotOwn.com
Calvin Harrigan, Atlanta, Georgia; Software Engineer, n/a
Calvin S. Taylor Jr., Tigard, Oregon; President, Sandforge
Engineering
Canyon Russell, Tulsa, Oklahoma; Consultant, n/a
Carl Alexander, Watertown, Massachusetts; Senior Systems and
Network Administrator, Technical Education Research Center
Carl Christian Brink, Portland, OR; CTO, ONSITE! Technology
Carl Drake Jr, Chillicothe, OH; Commander USN(Ret)
Carl Friedberg, New York, NY; President and CEO, Comet and
Company
Carlie J. Coats, Jr., Ph.D., Chapel Hill, NC; Mathematician/
Analyst, MCNC-Environmental Modeling Center
Carl J. Youngdahl, Ph.D., Evanston, IL; Software/Content
Developer, n/a
Carl Klutzke, Indianapolis, IN; Software Developer, Covance Inc.
Carl M. Holmberg, Kihei, HI; Systems Analyst, AFRL--;Maui
High Performance Computing center
Carl M. Keil, Portland, OR; Multimedia Producer, Portland
Community College
Carl Mueller, Seattle, WA; Software Engineer, Nintendo
Carlos Eberhardt, White Bear Twp, MN; Consultant / Software
Engineer, n/a
Carlos Santellanes, Montebello, California; Graphic Designer,
Freelance
Carl Spangenberger, Wyoming, Michigan; Software Engineer, n/a
Carl Youngblood, Orem, Utah; Software Engineer, n/a
Caroline Lambert, Palo Alto, CA; IT Infrastructure Manager,
Agilent Technologies
Carolyn Cooper, Princeton, NJ; Computer Science graduate
student, Johns Hopkins University
Carroll Grigsby, Raleigh, NC; Retired, n/a
Cary Roys, Aurora, IL; Resnet Consultant, North Central College
Case Matthew Wiedner, Arlington Heights, Illinois; Network
Administrator, American Telephone and Telegraph
Casey Gordon, Athens, Georgia; Web Administrator, College of
Family & Consumer Sciences
Casey Hutchinson, Santa Cruz, CA; Network Administrator, Nadel
Phelan, Inc.
Catherine Jenkins, Cambridge, MA; Student, MIT
C. Brandon Forehand, Pflugerville, TX; Software Developer, n/a
Cerrise Weiblen, Louisville, Colorado; Freelance XA, XA Business
Services
Chadd Horanburg, Ferndale, MI; Security Engineer, Internet
Security Systems
Chad Kavanaugh Bisk, Reston, Va; Senior Consultant, Braun
Consulting
Chad Kay, Milwaukie, Oregon; n/a
Chad Margetts, West Jordan, Utah; Independent Consultant, Ron
Allen Consulting Services
Chad Miller, Valdosta, GA; Developer, Debian
Chad Vogelsong, Carlisle, PA; Student, The Pennsylvania State
University
Charles B. Cranston, Burtonsville, Maryland; Staff computer
programmer, University of Maryland at College Park
Charles Borner, Lisle, IL; Owner, EvilNET.net
Charles D. Galler Jr., Houston, Tx; System Admin, C2C Fiber
Charles D. McJilton, Laporte, Colorado; System Administrator,
JYM Information Systems LLC
Charles Durst, Arlington, MA; Senior Software Engineer, n/a
Charles E Chandler III, New Orleans, LA; Computer Technician,
Computer Source, LLC.
Charles E Mason IV, Tallahassee, FL; Student, Florida State
University
Charles E. Oesterle, Plymouth, Michigan; programmer, CEO Image
Systems
Charles F. McKnight, Fayetteville, Arkansas; PC/LAN Specialist,
Mercy Health Systems--; NWA
Charles Forsythe, Dallas, TX; Enterprise Systems Consultant,
Texas Home Health of America
Charles F. Wilkins, III, Houston, TX; Systems Analyst, Cullen
College of Engineering
Charles Hasegawa, Mesa, Arizona; Software Engineer, Cottonwood
Technology Group
Charles Hinson, King of Prussia, PA; Senior Engineer, Avercom
Charles Hopkins, Foothill Ranch, CA; Systems Analyst, Boeing
Satellite Systems
Charles Hurlocker, Renton, WA; Retired Software Engineer
Charles Jenkins, Oak Ridge, Tennessee; Software Developer, n/a
Charles Kendrick, San Francisco, CA; Co-Founder and Chief
Technology Officer, Isomorphic Software
[[Page 28324]]
Charles Kerr, Oklahoma City, OK; Senior Software Engineer,
University of Oklahoma
Charles Krug Smart, Pittsburgh, Pennsylvania; Undergraduate
Student, Carnegie Mellon University
Charles Kuske, New York, NY; Engineer, Metropolis DVD
Charles L. Hethcoat III, Houston, Texas; Concerned citizen, n/a
Charles Mattice, Stone Mountain, GA; Technical Director, Permite
Corporation
Charles Mercer, Wichita, KS; Lead Analyst, Cessna Aircraft
Company
Charles Noble Baker, Van Nuys, California; Systems
Administrator, Solar Webb, INC
Charles ``Pat'' Kelley, Norcross, Georgia; Firmware
Engineer, Enrev Power Solutions
Charles R. Fry, Sunnyvale, California; Computer Scientist, n/a
Charles Steinkuehler, Topeka, KS; Electronics Engineer, NewTek
Partners; member, Linux
Router Project
Charles Wiltgen, San Diego, CA; Product Manager, PacketVideo
Charlie Eidem, Rohnert Park, California; Student, Sonoma State
University
Charlie Kilian, Wamego, KS; Director of Software Development,
Aphelion Studios
Charlie Zender, Irvine, CA; Professor of Earth System Science,
University of California at Irvine
Chase Caster, Ames, IA; Student, Iowa State University
Chase Grund, Dayton, Ohio; Web Administrator, LOGTEC, Inc.
Chester Hoster, Dallas, TX; IT Network Engineer, n/a
Chip Hart, Burlington, VT; Director of Marketing, Physician's
Computer Company (PCC)
Chip Witt, Santa Rosa, CA; Sr. Network Administrator, Westwave
Communications, Inc.
Chris A. Miller, Omaha, NE; Application Architect, Withheld out
of fear
Chris Armstrong, Sterling, VA; Product Engineer, America Online,
Inc.
Chris Bare, Fort Lauderdale, FL; Technical Director, Metro Link
Incorporated
Chris Barr, Wayland, MA; Software Engineer, Strider Software,
Inc.
Chris Beattie, Columbia, South Carolina; System Administrator,
Independent
Chris Bopp, Honolulu, HI; System Administrator, Travel Hawaii
Chris Carlin, Baton Rouge, Louisiana; Student, Texas A&M
University
Chris Davis, Minneaplois, MN; Software Developer, KRS Software
Chris Dawson, Portland, Oregon; Software Engineer, Contractor
Chris Dos, Highlands Ranch, CO; President, Open Innovations
Chris Gamble, Grapvine, Texas; Developer, CPB Inc
Chris Gebhardt, State College, PA; Student of Computer
Engineering, The Pennsylvania State University
Chris Hadley, Memphis, TN; System Engineer, Infuturo
Chris Hamilton, Anchorage, AK; IT Contractor, C&S Management
Associates
Chris Harmon, Copley, Ohio; Student, University of Akron
Chris Holland, Costa Mesa, CA; Programmer, Contractor's Source
Inc
Chris Hruska, Ithaca, NY; Graduate student, Cornell University
Chris Humphres, Durham, North Carolina; Software Engineer, n/a
Chris Lea, Los Angeles, CA; Senior Technologist, Lucid Designs
Chris Loendorf, Sacaton, Arizona; Project Director, Gila River
Indian Community Cultural Resource
Chris March, Buffalo, NY; Network Administrator, Prep
Incorporated
Chris Marckel, Minneapolis, Mn; QA analyst, IBMGS
Chris Mccraw, Denver, CO; unix consultant, independent
Chris McGraw, Clark, SD; Information Systems Operator/
Maintainer, SDARNG
Chris Monson, Provo, UT; Chief Architect, Orangatango
Chris Rabkin, Naples, Florida; Internet Business Strategist,
imageProjektions-DGL
Chris Scheller, Palmdale, CA; Presidnet/Founder, Antelope Valley
Linux Users Group
Chris Sexton, Raleigh, NC; Student, North Carolina State
University
Chris Sutton, Seattle, WA; Software Engineer, iFloor.com
Chris Telfer, West Lafayette, Indiana; Graduate Student, Purdue
University
Christian Greika, Atlanta, GA; Software Engineer, NCR
Corporation
Christian H=F61tje, San Jose, Texas; Lead Developer, Rackspace
Managed Hosting
Christian Schumann-Curtis, Denver, CO; R&D Manager, Pixxures
Christian Walker, San Francisco, California; Software Developer,
Ubiquitos Information
Christine Eck, Columbia, FID; software engineer, n/a
Christopher A. Baumbauer, Lafayette, IN; student, Purdue
University
Christopher A. Worth, Louisville, KY; Biomedical Engineer, Univ.
of Louisville
Christopher Caldwell, Woburn, Massachusetts; Chief Engineer,
Interliant Corporation
Christopher Corayer, Newton, MA; Network Engineer, ADE
Corporation
Christopher Elmquist, St. Paul, MN; Software Engineer, Elmquist
Microsystems
Christopher Fitch, Memphis, TN; Senior Software Engineer, n/a
Christopher Foley, Atlanta, Georgia; Systems Engineer, Stevens
Communications
Christopher Holley, Durham, NC; Medical Student, Duke University
Medical School
Christopher J. Armstrong, Clinton, Pennsylvania; Web Developer,
NOVA Chemicals
Christopher J. Kucera, Green Bay, WI; Software Engineer, n/a
Christopher Mende, Colorado Springs, Colorado; Systems Engineer,
Raviant Networks
Christopher Michael Werner, Brooklyn, New York; Student, SUNY
Binghamton
Christopher N. Lawrence, Oxford, MS; Computer Systems Manager,
University of Mississippi
Christopher O'Brien, Raleigh, North Carolina; Contracted
Developer, CDI
Christopher Palow, Miami, Florida; Student Computer Engineering,
Carnegie Mellon University
Christopher Park, Jacksonville, Florida; Software Developer,
Independant
Christopher Plummer, Flemington, NJ; Lotus Notes Administrator,
Independent Contractor
Christopher R. Wren, Cambridge, Massachusetts; Research
Scientist, MERL
Christopher Sean Morrison, Aberdeen, FID; Senior Software
Engineer, U.S. Army Research Laboratory
Christopher Smith, Los Angeles, California; Senior Technologist,
Xdrive Technologies
Christopher S. Swingley, Fairbanks, Alaska; Computer / Network
Manager, University of Alaska Fairbanks
Christopher Vargas, Arlington, VA; Web Publisher, HHMI
Christopher Wallace, Austin, TX; System Architect, Dell Computer
Corporation
Christopher Weuve, Alexandria, VA; Senior Research Specialist,
n/a
Christopher Wolske, Gaithersburg, MD; Consultant, n/a
Chris Turner, El Paso, TX; Graduate Student, UTEP
Chris Watson, Wellington, KS; President, Open Systems Inc.
Chris Wells, Lexington, KY; Software Engineer, rpcnet.com
Chris Williamson, Wilmore, KY; Instructional Technology
Assistant, Asbury College
Chris Wingate, Fort Wayne, Indiana; Real Estate Investor, n/a
Chris Worley, SLC, UT; Programmer, Liberate Technologies
Chuck Messenger, Rochester, NY; Software engineer, self employed
Chuck Moss, Manassas, VA; President, Complete Network Solutions
C. J. Keist, Fort Collins, CO; UNIX admin, Colorado State
University
Clark N. Quinn, Walnut Creek, CA; Executive Director, OtterSurf
Labs
Claude Keswani, Boston, Massachusetts; Student, University of
Massachusetts
Claudia Santoro, Somerville, MA; Systems Architect, Elm Square
Technologies
Clay J. Claiborne, Jr., Los Angeles, California; President,
Cosmos Engineering Company; Founder, lula.org
Clayton S. Chan, Irvine, CA; Computer Technician, n/a
Clif Cox, Eugene, OR; System administrator, OCFnet cliff Earle,
Sunland, CA; n/a
Clifton Leonard, Oklahoma City, OK; Systems Engineer, CACI
C. Megan Larko, Laurel, FiD; Systems Administrator, NASA Goddard
Space Flight Center
C. Michael McCallum, Elk Grove, CA; Associate Professor of
Chemistry, University of the Pacific
Colin Dean, Volant, PA; Web Designer, Student, Freelance
Colin Kinlund, Bristol, Vermont; Student, The Red Cedar School
Colin Spencer, Norfolk, VA; Consultant, Independent
Colin Steele, Charlottesville, VA; n/a
Colleen Shannon, San Diego, California; Programmer/Analyst,
CAIDA, San Diego Supercomputer Center, UCSD
Collin Anderson, Osceola, IN; Student, Penn High School
Conan Heiselt, Fremont, California; Systems Engineer, Kodak
[[Page 28325]]
Connor Smith, New York, NY; Computer Support, Cline Davis &
Mann
Conrad Clark, Morgantown, WV; IT Consultant, Self Employed
Cory McKinstry, Austin, TX; Field Engineer, Northrop Grumman
Information Technology
Coy T. Thorp, Vallejo, California; Network Systems
Administrator, MDL Information Systems
Craig Butcher, Chelsea, Michigan; Foreman, University of
Michigan Plant AC Shop
Craig I. Hagan, Seattle, Washington; Systems Engineer, n/a
Craig R. Campbell, Everett, WA; Software Engineeer, Fluke
Networks
Craig Sparks, Overland Park, KS; Former CEO, NetGames USA
(acquired by Microsoft)
Craig Van Degrift, Los Angeles, CA; President, Kanji-Flash
Softworks
Craig Welch, Denver, Colorado; Systems Administrator, Consulting
Craig Znamierowski, Charlton, MA; Network Engineer, GweepCo
CR Jones, Walnut, MS; Systems Engineer, Consultant
C. Scott Ananian, Cambridge, MA; PhD student, Massachusetts
Institute of Technology
Curt Cox, University City, MO; Programmer, n/a
Curt Holmer, Sterling, VA; Chief Consultant, CIHolmer Consulting
Inc., http://www.ciholmer.com
Curtis Lisle, Orlando, FL; Visual Systems Scientist, SGI
Curtis R. Danner, Batavia, IL; Tech Specialist, Fermilab
Curtis Rey, Madison, Wisconsin; R.N.B.S.N., Saint Marys Hospital
Curtis Rushing, Lake St. Louis, MO; President, Rushing
Consulting Inc.
Curtis Turner II, Central, South Carolina; Systems
Administrator, Integrated Support Systems, Inc.
Curtis Wood, Corpus Christi, Texas; System Administrator/
Architect, BlueDomino Hosting
Curt Jacobson, Kalispell, MT; n/a
Curt Pederson, Madison, Wisconsin; Software Engineer, Berbee
Cushing Whitney, Hoboken, NJ; Information Security Consultant,
n/a
Cyril Bortolato, Campbell, CA; Staff Software Engineer, Adaptive
Silicon
Dagny Haug, Minneapolis, MN; Associate Program Director,
University of Minnesota
Dale Schoeck, Houston, TX; Concerned Citizen, Individual
Dallas Legan, Downey, California; Member, linuxatlax.org
Damian Cunniff, Harrington Park, NJ; Computer Science, Ramapo
College of NJ
Damon A. Brown, Alexandria, VA; Consultant, Booz Allen
Hamilton
Damon A. Schmidt, Brooklyn Center, PIN; PC Analyst/Intel Servers
Support, Provell
Damon Cann, Port Jefferson, New York; Ph.D. Student, SUNY at
Stony Brook
Damon Casantini, King of Prussia, PA; Computer Technician, n/a
Damon C. Richardson, St. Louis, MO; Software Developer, Express
Scripts
Dana L. Parso, San Francisco, CA; Administrator, Santos &
Urrutia
Dan Berger, Chino Hills, CA; Software Engineer, n/a
Dan Bidwa, Pittsburgh, Pennsylvania; Multimedia Technologist,
Carnegie Mellon University
Dan Carrigan, Yellow Springs, OH; Librarian, Antioch College
Dan Devine, Seattle, Washington; n/a
Dane Johnson, Minneapolis, MN; Senior Systems Analyst, Supervalu
Danial Hinshaw, Honolulu, Hawaii; Electrician, Federal Employee
Danial Howard, Pocatello, ID; IT Programmer/Analyst, Idaho State
University
Daniel Boudrot, Lewisville, TX; SW Engineer, ForeLogic, LLC
Daniel Bungert, State College, PA; Student, Pennsylvania State
University
Daniel Bunn, Bedford, Virginia; Talent Scout / Artist, EB Muzik
Daniel E. Shown, St. Louis, MO; Administrative Secretary, Saint
Louis University
Daniel Fuhr, Topeka, KS; Intern, Kansas Department of Health and
Environment
Daniel Gryniewicz, Ann Arbor, Michigan; Software Engineer,
Nexthop Technologies
Daniel Helfman, Los Angeles, California; Systems Administrator,
Jim Henson's Creature Shop
Daniel Holdren, Albany, NY; System Administrator, SUNY Albany
Daniel Hong, Redwood City, CA; Unemployed Graduate, n/a
Daniel Kupka, Worcester, Massachusetts; PC Administrator,
Framingham Heart Study
Daniel Lake, Portland, Oregon; Electrical Engineer, Mentor
Graphics
Daniel Lee, San Mateo, CA; Senior Software Engineer, Entelos
Daniel Lipofsky, San Rafael, CA; Senior Software Engineer, n/a
Daniel Maas, Ithaca, NY; President, Maas Digital, LLC
Daniel Martinelli, Worcester, Massachusetts; Webmaster, Cancer
Detection and Prevention
Daniel Paquette, Apalachin, NY; Software Engineer, n/a
Daniel Paul Veditz, Ben Lomond, California; Software Engineer,
Netscape
Daniel Poston, Florence, SC; Computer Technician, N/A
Daniel R. Gowans, Fort Collins, Colorado; Design Engineer,
Agilent Technologies
Daniel Rozinsky, Marlboro, New fork; President, Brainstorm
Technology Associates
Daniel Stringfield, Wayne, NJ; Site Supervisor, Arsenal Digital
Solutions
Daniel Stutzbach, Eugene, Oregon; Graduate Student, University
of Oregon
Daniel T. Drea, Salem, CT; Owner, Daniel T. Drea P&H
Daniel W. Brown, Gloucester, MA; Senior Software Engineer, n/a
Daniel W. Drake, Apex, NC; Vice President, Oak Grove Software
Daniel Wolstenholme, Chandler, AZ; Software Engineer, Intel
Corporation
Daniel Wright, Redwood City, California; President, ComputerX
Dan Marker, Kettering, OH; Technical Support Engineer, SGI
Dan Milstein, Boston, MA; Consultant, n/a
Dan Moore, Salt Lake City, Utah; Programmer, Sandstar Family
Entertainment
Danny Espinoza, Washington, DC; Senior Software Engineer,
emotion
Dan Reese, Spanish Fork, UT; Software Engineer, Clearstone
Corporation
Dan Speers, Morristown, NJ; Editor, The Naturist Journal
Dan Trevino, San Antonio, TX; President, bluemagnet, llc
Dan Wilder, Seattle, WA; Tech Manager, Specialized Systems
Consultants
Dan Wood, Alameda, CA; Founder, Karelia Software
Darcelle Bleau, Los Angeles, california; Research
Analyst--;IT, Major HMO
Darcy James Argue, Boston, MA; Musician, n/a
Darlene Wallach, San Jose, CA; Software Engineer, n/a
Daron D. Fraley, Plainfield, IN; IT Manager, DCM Indiana
Darren Hiebert, Madison, Alabama; Senior Software Engineer,
XonTech
Darren Nguyen, San Mateo, CA; System Administrator, Talaris Inc.
Daryl Biberdorf, Carrollton, Texas; Database administrator, n/a
Dave Blankenship, Boise, Idaho; Senior Software Engineer, n/a
Dave Gardner, South Pasadena, CA; Network Administrator/Security
Analyst, ExacTax Inc.
Dave Greene, Albany, NY; Technical Support, n/a
Dave Lyon, Sandy, Utah; Web Engineer, TeachStream
Dave Mallery, Ramah, NM; Editorial Director (retired),
Professional Press
Dave Ruske, Sussex, WI; Sr. Software Engineer, Rockwell Software
Inc.
Dave Seltzer, Rochester, N-Y; Network Software Engineer, n/a
Dave Serls, Littleton, CO; Software Engineer, n/a
Dave Wreski, Upper Saddle River, NJ; Director, Guardian Digital,
Inc.
David A. Rogers, La Grange, Illinois; Senior Software Engineer,
SPSS Inc.
David B. Caplinger, Omaha, NE; Information Technology Manager,
Meridian, Inc.
David Beahm, Williamsport, PA; Programmer, Champion Parts
David Bechberger, Bozeman, MT; Hardware/Software Engineer, n/a
David Benfell, San Francisco, California; Systems Administrator,
n/a
David Bilton, Colchester, CT; n/a
David Border, Bowling Green, Ohio; Assistant Professor, Bowling
Green State University
David B. Peterson, Palo Alto, CA; Systems Administrator, n/a
David Buehler, Albuquerque, New Mexico; Graduate Student
(Computer Science Ph.D. , University of New Mexico
David Castro-Diephouse, Philadelphia, PA; Software Engineer,
Retek
David Chapman, Sonoma, CA; Software Tester, LucasArts
Entertainment
David C. Hill, Centennial, Colorado; Consumer
David Christensen, Berkeley, CA; UC Berkeley
David C. Johanson, Gaithersbutg, MD; Aviation Physiologist, US
Navy
David Clark, Simi Valley, CA; Software Engineer, Consultant
[[Page 28326]]
David Cotton, Santa Cruz, CA; Systems Administrator, vortex4.net
David C. Sloane, Boston, Massachusetts; Sr. Systems Admin.,
Vanderweil Facility Advisors
David Dahl, Chicago, IL; President, ddahl.com
David Daniel, Lyons, CO; Advisory Engineer, Storage Technology
Corp.
David Diplock, San Diego, California; Software Engineer,
Peregrine Systems
David Dittrich, Seattle, Washington; Member, The Honeynet
Project
David D. Lewis, Chicago, IL; Independent Consultant
David Dolinar, Provo, Utah; Software Developer, n/a
Davide Libenzi, Beaverton, OR; Sr Software Engineer, NAI/McAfee
David Ford, Meriden, CT; Blue Labs Software
David F. Williams, Tulsa, Oklahoma; Network Administrator,
Onbravo of Tulsa
David Gabler, Atascadero, CA; Network and Systems Security
Engineer, n/a
David Gessel, Oakland, CA; Engineer, Black Rose Technology
David Goodwin, Sunnyvale, CA; Software Engineer, Tensilica
David Graser, Port Neches, Texas; Process Operator, Huntsman
Corp.
David Greenberg, Highland Park, IL; President, David Data
David Hamilton, Nashville, Tennessee; Technical Consultant, n/a
David Hartwell Clements, Golden, CO; Math/CS Student, Colorado
School of Mines
David Henning, Montgomery village, MD; Senior Security Engineer,
CACI
David Hershberger, Pittsburgh, PA; Ph.D. student, Carnegie
Mellon University
David HM Spector, Huntington, NY; President and CEO, DropZone
Networks
David Hudson, Cerritos, CA; Technologist, The Capital Group,
Inc.
David Hutchens III, Largo, FL; Operations Support Technician, n/
a
David James Burneff, Columbus, Ohio; Developer, n/a
David J. Carlson, Farmington, Utah; Airline Pilot (Retired)
David Lance Smith, Newnan, Georgia; Owner/ CEO, smithSyndicate
David Lesher, Wheaton, MID; Engineer,
David L. Gantose, Cleveland, OH; Software Engineer, n/a
David L. Williams, San Diego, CA; Sr. Software Engineer,
Stellcom
David Mandala, Phoenix AZ; President, THEM Productions
David Marsh, Palmdale, CA; Network Engineer, Medical Research
Products
David May, Houston, TX; Senior Analyst, Dow Chemical
David McCuskey, Portland, Oregon; Owner, McCuskey Consulting
David Medinets, Ftanders, NJ; President, Eclectic Consulting
David Merrill, Byfield, MA; Software Engineering Consultant,
Merrill SCM Consulting
David Mestel, St. Louis, Missouri; Systems Analyst, Free-
Source.com
David M. Hull, Menlo Park, CA; Member of Technical Staff, TIBCO
Software, Inc
David Minor, Reston, Virginia; System Architecht, Orbotech Inc.
David Morgan, Los Angeles, CA; Professor of CS, Santa Monica
College, Los Angeles City College, UCLA Extension
David Neu, West Lafayette, Indiana; Computing Center Consultant,
Purdue University
David Newman, Naperville, Illinois; Principle Software Engineer,
Private Citizen
David Noonan, Atlanta, GA; Network Engineer, n/a
David O. Blanchard, Ph.D., Flagstaff, Arizona; Atmospheric
Scientist, n/a
David O'Brien, Alameda, CA; Computer Engineer, Consultant
David Pearson, Walnut Creek, CA; Attorney, Law Offices of David
S. Pearson
David Polenychko, Troy, Michigan; Network Administrator, ACE
Controls
David Pool, Sunland, California; Software Developer, n/a
David R Dick, Nashua, NH; President, Software Innovations
David R. Roth, Portland, OR; Systems Analyst, Bureau of Labor
and Industries, State of Oregon
David Rush (US Citizen/Expatriate), Dunlavin, Republic of
Ireland; Principal Engineer,
AOL Technologies/Dublin
David Rysdam, Milford, NH; Software Engineer, n/a
David S. Goldberg, Belmont, MA; IT Manager, n/a
David Small, Kent, OH; Computer Science Major, Kent State
University
David Smith, Kalamazoo, MI; Director of Development, Zooropa
Design
David Smith, Morgantown, West Virginia; Systems and Network
Administrator, West Virginia University
David Sowder, Cleburne, Texas; Systems Administrator,
Southwestern Adventist University
David S. Roland, Denver, Colorado; President, Advanced
Intelligent Networks Corporation
David Stair, Asheville, NC; College Student, Member, ACM
David Sullivan, Denver, CO; Associate Professor, MSCD
David Walker, Pescadero, Ca; QA Manager, Rocket Network
David White, Stockbridge, Georgia; Computer User, Private
Individual
David Wiley, Ph.D., Logan, Utah; Assistant Professor, Utah State
University
David Wilk, Gallup, NM; Systems Administrator, Community
Internet Access
David Witherspoon, Salt Lake City, Utah; Algorithm Engineer,
Idaho Technology
David W. Kennedy, Champaign, IL; Student, University of Illinois
at Urbana-Champaign
David W. Thurston, Monroe, La.; Systems Administrator,
CenturyTel
David Yates, Central, South Carolina; Devleopment Scientist,
Perrigo Company
Dean Brettle, Gaithersburg, Maryland; Software Engineer,
brettle.com
Deane Thomas, New York, NY; Senior Software Architect/Analyst,
Goldman Sachs & Co.
Dean Jefferson, Madison, WI; Instructor, Madison Area Technical
College
Deanna Cheung, Long Beach, CA; Director, Tara School
Deanna Thompson, Las Vegas, Nevada; System Adminitrator
Debbie Shrock, Spangle, WA; Girls'' Dean, Upper Columbia
Academy
Deborah Tribble, Scottsdale, Arizona; housewife, n/a
Delbert Hart, Huntsville, Alabama; Assistant Professor, Computer
Science Department, University of Alabama in Huntsville
Del Teel, Charlotte, NC; IT Architect / Engineer, IBM Corp
Denise Schilling, Big Bend, WI; Consumer, n/a
Dennis Cruise, Beaverton, Oregon; Developer, Professional Data
Exchange
Dennis Jarecke, Kent, Ohio; Physicist, Kent State University
Dennis Jenkins, Milwaukee, Wisconsin; Alpha Geek, Universal
Savings Bank
Derek Ramsey, Philadelphia, PA; Software Engineer, n/a
Derek Scott Young, Oklahoma City, Oklahoma; Lead Developer,
Orcacom Worldnet
Derek Tarvin, Tulsa, OK; Manager, DecisionOne
Derek Warnick, Salt Lake City, UT; Software Engineer, 3M
Derek W. White, Las Vegas, Nevada; IT Student, Community College
of Southern Nevada
Derick Siddoway, Salt Lake City, UT; Seriousdata Company,
Systems Architect
D.Erickson, San Jose, CA; M.Dir., AdVenture Group
Devin Kyle Irby, Tivoli, New York; Video Installation Engineer
(VIE), Ingest Digest
Dhaval Patel, Roselle Park, New Jersey; n/a
Diane F. Engles, Raleigh, NC; Software Developer, Rho, Inc.
Diane McSweeney, San Jose, CA; Webmaster, n/a
Diane M. Napolitano, Ossining, New York; Linux programmer, n/a
Diane Walter, Menlo Park, CA; Senior Research Engineer, SRI
International
Dj Merrill, Lebanon, New Hampshire; Sr. Unix Systems
Administrator, Dartmouth College
D. Mark Abrahams, Berkeley, CA; President and principal analyst,
Abrahams-Rizzardi, Inc.
Dominic Eldridge, Sheridan, Michigan; Computer Lab Monitor,
Montcalm Community College
Dominic Franchetti, San Mateo, CA; Software Engineer/Project
Manager, eJiva
Donald Byrd, Bloomington, IN; Senior Scholar, Indiana University
Donald Grayson, Louisville, Kentucky; System Administrator, n/a
Donald J Bindner, Kirksville, MO; Asst Professor of Mathematics,
Truman State Univ
Donald R. Clarke, Northport, New York; Staff Operations &
Training Specialist, USAR
Donald R. Fairchild, Chesterfield, VA; CEO, Fairchild Software
Inc.
Don Black, Newport Beach, CA; Director, Digital ChoreoGraphics
Don Holmgren, Batavia, IL; Computer Professional, Fermi National
Accelerator Laboratory
Don J. Rude, Gaithersburg, Maryland; Owner/CTO, Steem
[[Page 28327]]
Don J Smith, Columbus, Ohio; Sr. Staff Software Engineer, n/a
Don Soegaard, Sutter, California; Industrial Engineer,
entrepreneur
Dorab Patel, Santa Monica, California; President, Digicraft
Dorothea Salo, Madison, WI; n/a
Doug Alcorn, Kings Mills, Ohio; Independant Software Developer,
Lathi.net
Doug Bryant, Charleston, SC; Software Engineer, Arthur D. Little
Doug Burks, Augusta, GA; Systems Administrator, n/a
Douglas James, West Jordan, UT; Chief Systems Administrator, I-
Net Innovations
Douglas Lewan, Brick, NJ; Senior Software Engineer, Adir
Technologies
Douglas Loss, South Williamsport, PA; Data Network Coordinator,
Bloomsburg University
Douglas R. Glenn, Mauldin, SC; Enterprise Applications Analyst,
KEMET Electronics Corp.
Douglas Rohrer, Cincinnati, Ohio; Chief Technology Officer,
Safe@Work
Doug Matheson, Stockton, CA; Professor, University of the
Pacific
Doug McBride, San Mateo, California; Software Developer,
Liberate Technologies
Doug Raichle, Princeton, NJ; Member Technical Staff, Sarnoff
Corp.
Doug Schafer, Agoura Hills, CA; Principal Hardware Engineer,
Ixia Pow Hurst, Acworth, Georgia; System Support Specialist,
Kennesaw State University
Dow McKeever, Valley Cottage, NY; Sound Designer, Sine Post
Audio
Doyle Hopkins, Fort Collins, Colorado; Systen Engineer, LSI
Logic
Drake wilson, Pittsburgh, PA; Student, University of Pittsburgh
Drew Poulin, Edmonds, WA; Translator, Sole Proprietor, TransCom
Japan Dr. Kenneth R. Brownsberger, Boulder, CO; Software and
Operations Scientist, University of Colorado--;Boulder
Dr. Paul E. Black, Gaithersburg, MD; Computer Scientist, Member,
Association for Computing Machinery (ACM)
Dr. Scott McCormick, Hamilton, OH; President, ESM Software
Dr Steve Otto, Portland, Oregon; CTO, TrueDisk Inc.
Dr. Thomas A. Cleland, Ithaca, NY; Research Associate, Cornell
University
D. Scott Alexander; Warren, NJ; Chief Architect, Activium, Inc.
Duane Gustavus, Denton, Texas; UNIX Research Consultant,
University of North Texas
Dudley Irish, Salt Lake City, Utah; IT Consultant, Ars Magna,
Inc.
Duncan Murphy, Midway, KY; Consultant, Problem Solved!
Durwood Gene Bland, Jr., Cary, North Carolina; Software
Consultant, Analysts International Corporation
Dusty Wright, westminster, CO; Content development, Sun
Microsystems
Dwayne Parks, Fayetteville, AR; Software Engineer, Shinkoh
Technologies Inc.
Dwight Briggs, Orange City, F1; Software Engineer, n/a
Dwight N Buchanan, San Jose, CA; Senior Programmer, IBM
Dwight Thornton, Reseda, Ca; Owner, Symple Engineering
Edan Dalton, Atlanta, GA; Research Assistant, Georgia Institute
of Technology
Ed Chapman, Point Mugu, CA; Assistant Administrative Officer, US
Navy
Eden Crane, Stockton, California; Network Administrator,
Tonecontrol.net
Ed Hagerty, Addison, TX; Owner, General Knowledge Corporation
Ed Howland, St. Louis, MO; Independant Software Consultant, n/a
Ed Huott, Latham, NY; Consultant, SuperGeek Consolidated
Ed Leafe, Penfield, NY; Independent Consultant/ Developer, n/a
Edmond Temple, Piedmont, California; College Instructor, UC
Berkeley Extension
Edmund Charles Lewis, Keene, Texas; Dir Administrative
Computing, Southwestern Adventist University
Edmund Mitchell, Kingston, NY; Programmer/Analyst, Micro General
Corporation
Ed O'Connor, Madison, New Jersey; Independent Software
Developer, Rebol Scripting Community http://www.rebol.com
Ed Saipetch, Indianapolis, IN; Developer, Indianapolis Star
Edward Burton, Lewiston, Idaho; Proprietor and Mediator,
Clearwater Peace (alternative dispute resolution)
Edward Byfield, New York, NY; Faculty, Parsons School of Design
Edward Figarsky, Holland, PA; Programmer, FASTNET Corporation
Edward F. Valeev, Atlanta, GA; Research Scientist, Georgia
Institute of Technology
Edward Kaeufer, Blaine, WA; Software Engineer, CMPI
Edward Langenback, Cherokee Village, AR; Web designer /
promoter, n/a
Edward Lentz, Conshohocken, Pa; Programmer/Analyst, Glaxo Smith
Kline
Edward Resnick, Toronto, Ontario; Systems Engineer, Sun
Microsystems, Inc.
Edward Schlunder, Mesa, Arizona; Software Engineer, SHEF Systems
Edward Simmonds, Glendale Heights, IL; Financial Systems
Consultant, National Association of Realtors
Edward Smith, Cincinnati, OH; Windows Programmer/Consultant, n/a
Edward Starback, Troy, MI; Application Engineer, n/a
E John Swift, Aurora, CO; Technology Teacher, Castle Rock Middle
School
Elaine Lindelef, Glendale, CA; Partner, Cognitivity
Elias Lutfallah, Chicago, IL; System Administrator/Programmer,
Endeavor Information Systems
Elijah C. Menifee, Bethany, OK; Software Engineer, da Vinci
Network Services
Elijah Wright, Athens, Ohio; Webmaster, http://stderr.org
Eliot Mason, Waunakee, WI; Lecturer, University of Wisconsin
Elizabeth Bonney, Cranford, NJ; Library and Information Science
Graduate Student, Rutgers University
Elizabeth Edwards, Cambridge, MA; Software Engineer, n/a
Elizabeth Mieczkowski, New Orleans, LA; Web Developer, Medical
Center
Elliot Abramowitz, Glendale, AZ; Student, Private Citizen
Elliot Jordan, Decorah, IA; Student, Luther College
Elliott Wilcoxon, Minneapolis, PIN; Student, University of
Minnesota--;Twin Cities
E. Matthew Schulz, Iowa City, Iowa; Statistician, ACT, Inc.
Emily Stambaugh, Chapel Hill, NC; Librarian, American Library
Association
Eric A Bolden, Madison, WI; IPC, University of
Wisconsin--;Madison
Eric Albers, Jefferson, Maryland; CEO, Vertigo Simulations
Eric Anderson, Northfield, Minnesota; Software Engineer,
Lockheed Martin
Eric Benedict, Madison, WI; Lecturer, Department of Electrical
and Software
Engineering
Eric D. Burgess, Farmers Branch, Texas; Senior Programmer,
VarTec Telecom
Eric Fisher, Manilla, Indiana; Student, Novice Programmer
Eric Gold, Albuquerque, NM; Physician, University of New Mexico
Eric Hendrickson, Eden Prairie, Minnesota; Systems/Commerce
Architect, Albedo Applications
Eric Hidle, Bryn Mawr, PA; Electrical Engineer, Honeywell
International INC
Eric Howland, Madison, WI; Consultant and Programmer, n/a
Eric Irrgang, Austin TX; Computer Programmer, University of
Texas at Austin
Eric Jergensen, Bethany, Oklahoma; President, da Vinci Network
Services
Eric J. Gleske, Dover, NH; Television Producer/Director,
Freelance
Eric Knudstrup, Saratoga, 95070; n/a
Eric Ludlum, New York City, New York; President, Core77
Eric Lundquist, Austin, Texas; President, The Robot Group, Inc
Eric McGough, Pleasanton, CA; CEO, Random Cube, Inc.
Eric Nedervold, Mountain View, CA; software engineer, self-
employed
Eric Nichols, Marlborough, MA; Programmer/Analyst, Raybeam
Solutions
Eric Roe, Sarasota, Florida; Chemical Engineer, n/a
Eric Smith, Williamsport, PA; Network Admin, Carole Hockman
Designs Inc
Eric Spiegelberg, Savage, MN; Software Developer, n/a
Eric Stechmann, Shoreview, MN; Software Engineer, n/a
Eric Stierna, St. Petersburg, Florida; Software Engineer, IEEE
Member
Eric Stoll, Rochester, NY; Software Engineer, n/a
Eric Weeks, Bountiful, Utah; Attorney, Weeks Law Firm
Eric williams, Pittsburgh, PA; PhD student, University of
Pittsburgh
Erik Hanson, Fremont, CA; Software developer, Independent
Erik Hovland, La Crescenta, CA; Software Engineer, Jet
Propulsion Laboratory and USCLUG member
Erik Vered, Indianapolis, Indiana; Consultant/Analyst, n/a
Ernest Fisch, Phoenix, Arizona; Retired
Ernest R. Smothers, Burke, VA; n/a
Esten N Porter, Clinton, MD; Systems Engineer, Galaxy Computer
Services, Inc. http://www.gcsi.com
E. Trasel Rowland, M.D., Fort Pierce, Florida; n/a
[[Page 28328]]
Eugene Clement, Palm Springs, CA; Program manager, n/a
Eugene Lee, West Lafayette, Indiana; Department of Computer
Science, Purdue University
Evan Anderson, Troy, OH; Software Engineer, Oxford Systems
Integration
Evan Edwards, Palm Beach, FL; Vice President, Inforule Inc.
Evan Flink, Santa Rosa, CA; Owner, Electronic Warrior Computer
Games
Evan Marshall, Rochester, MN; Systems Administrator, n/a
Fan Li Tai, Memphis, TN; Senior Data Protections Analyst, FedEx
Felix Finch, Dutch Flat, CA; Programmer, Scarecrow Repair
Felix Tan, Oakton, VA; Systems Developer, n/a
Fen Labalme, San Francisco, CA; Consultant, ACM
Fletcher Bartley Hubbard, Raleigh, NC; Software Developer, n/a
Fong Vang, Pleasanton, California; Systems Engineer, Zantaz
Ford Crews, Jackson, MS; Programmer, ERDC-VBG
Forde Prigot, Hoboken, NJ; Systems Analyst, Lehman Brothers
Forrest N Austin, San Francisco, CA; Sr Systems Administrator,
Digitalpipe
Frances Felix, Winchester, VA; NOC Liaison Specialist, Covad
Communications
Francine Taylor, Tigard, OR; Senior Programmer, Northwest
Analytical
Frank DeRosa, Charlottesville, Virginia; Student, University of
Virginia, Computer Science Department
Frank Goetz, Wheaton, IL; Computer Program Director, People's
Resource Center
Frank J. Cameron, Beaverdale, PA; Student, University of
Pittsburgh at Johnstown
Frank J. Iacovino Jr., Baltimore, Maryland; System
Administrator, n/a
Frank Riha, Cleveland, Ohio; Senior Systems Consultant, KeyBank
Frank Skorupski, Nashua, New Hampshire; Account Support
Engineer, n/a
Frank Tobin, Long Beach, NY; Software Developer, In-tel-tec
(http://www.inteltec.com/)
Frans de Wet, Tallahassee, FL; Software Engineer, n/a
Fred Cheng, Los Angeles, CA; Student, UCLA
Frederick C. Smith, Stoneham, MA; Senior Applications
Programmer/Analyst, n/a
Frederick Geier, Berkeley, California; VP, Geier & Geier
Consulting
Frederick Haab, Atlanta, Georgia; Software Engineer, Turner
Broadcasting System
Frederick Malouf, Mountain View, CA; Technical Lead, Glyphic
Technology
Fred L. Drake, Jr., Reston, Virginia; Software Engineer, n/a
Fred Martin, Concord, MA; Educational Technology Designer,
Gleason Research
Fumitaka Hayashi, Boston, MA; Research Fellow, Massachusetts
General Hospital
Gabriel Freund, West Palm Beach, FL; Financial Analyst, Ocwen
Galen Seitz, Portland, Oregon; Senior Engineer, Seitz &
Associates
Galen Stocking, Moreno Valley, CA; Student, California State
University San Bernardino
Gareth J. Greenaway, Thousand Oaks, CA; President, Simi Conejo
Linux Users Group
Garrick James, Seattle, WA; Network Security Engineer, Frank
Russell Company
Garry Stahl, Dearborn, MI; Editor in Chief, DCG Computer club.
Garth Minette, San Jose, California; Member of Technical Staff,
Verisity, Inc.
Gary Calvin, Los Angeles, California; Systems Administration
Manager, Kenwood Americas Corporation
Gary D. Cupp, Jr., Harrisonburg, VA; Owner, HelpNet
Gary Downing, Menlo Park, CA; Technology Evangelist, Palm, Inc.
Gary Gordhamer, Waukesha, WI; OWNER / DBA, H&H Consulting
Services, LLC
Gary Heller, Orlando, Florida; VP. Development & QA Manager,
ImageSoft, a Fiserv Resource
Gary L. Withrow, Santa Cruz, California; Senior DP Programmer/
Analyst and Oracle 8i
DBA, County of Santa Cruz
Gary Peck, Berkeley, CA; Computer Science Student, University of
California, Berkeley
Gary Schulte, Dallas, TX; Systems Analyst, Singular Software
Gavin Jefferies, San Francisco, CA; Consultant, Emptytree
Geff Underwood, Ames, Iowa; System Administrator, Iowa State
University
Gene Schmidt, Scottsdale, AZ; Professor, Scottsdale Comm.
College
Geng Yang, Austin, TX; Software Engineer, Ashley Laurent, Inc.
Geoff Hoyer, Oxford, MI; Software Engineer, Clarity
Geoffrey Bennett, Austin, Texas; Network Security, TICOM
Geoffrey Gerber, St. Paul, MN; Computer Consultant, n/a
Geoffrey H. Kuenning, Claremont, CA; Assistant Professor, Harvey
Mudd College
Geoff Sanders, San Diego, CA; Systems Engineer, Self
George B. Czerw, Rancocas, NJ; Network Design &
Administration Consultant, n/a
George Chong, Palo Alto, California; Systems Engineer,
Quinstreet, Inc.
George Grayson, Chicago, IL; neuroscientist, Abbott Laboratories
George Hartogensis, Chicago, Illinois; Team Leader--;Unix
Systems Administration, Rush-Presbyterian St. Lukes Medical Center
George Rebovich, Acton, MA; Private Citizen, None
George Robinson II, San Clemente, Ca; n/a
George Seff, Arlington, VA; President, Limbic Systems
George Soler, San Francisco, CA; Software Developer, eRide Inc.
George Vamos, Studio City, California; Principal Engineer,
Advanced Bionics Corporation
George Wagner, Sylvania, OH; President, Computers, Support,
& Consulting
Gerald Perkins, Brentwood, Tennessee; Retired, n/a
Giles Hoover, Bradenton, Florida; Co-Owner, MacTampa (http://
www.mactampa.com)
Gina Erickson, Camarillo, CA; Tech Support, VCNet, Inc.
Girard Jergensen, Edmond, OK; Software Engineer, n/a
Gita Sukthankar, Cambridge, MA; Member of Research Staff, Compaq
Computer
Glen Canaday, Clearwater, FL; Support tech, BobCAD-CAM, Inc.
Glen McGraw, Greenville, SC; Consultant, n/a
Glen M Cornell, Grosse Pointe Park, MI; Software Engineer, Metro
Link, Inc.
Glenn Focht, Ph.D., Gordonsville, TN; Owner, Focht Research
Glenn Hauman, Weehawken, NJ; President & Publisher,
BiblioBytes
Glenn Holmer, Milwaukee, Wisconsin; Programmer/Analyst, Weyco
Group, Inc.
Glenn Josefosky, Ferndale, MI; Sr. Software Engineer, CGN &
Associates
Glenn Sokol, Philadelphia, PA; Student, Drexel University
Glenn Stone, Seattle, WA; Consultant, Gamma Delta Iota
Glenn Strauss, Manalapan, NJ; Founder, Glue Logic
Gordie Freedman, Palo Alto, CA; Principal Developer, Dotcast,
Inc.
Gordon Fischer, Austin, Texas; Software Developer, Advent
Networks
Gordon MacGinitie, Pittsburgh, PA; Sr. Hardware Engineer,
retired
Gordon Marx, Charlottesville, VA; Student, University of
Virginia
Gordon S. Bauer, Erie, PA; Computer Hardware Technician, Rentway
Govind Salinas, San Antonio, Texas; Software Developer, n/a
Graham Mitchell, Leander, TX; computer science teacher, Leander
High School
Graham West, Chicago, Illinois; Game Programmer, Midway Games
Grant Goldade, Mandan, ND; ITD Computer Operator, ITD, ND
Greg Bailey, Salt Lake City, UT; Consultant, LXPRO.COM
Greg Barnes, Seattle, Washington; Software Engineer, UW
Greg Baugher, Hannibal, MO; PC and Network Support, Prince
Manufacturing Company
Greg Briggs, Tacoma, Wa; ASPLU Student Government Senator,
Pacific Lutheran University
Greg Foster, Columbus, OH; Senior Consultant, 3X Corporation
Gregg Rice, Toledo, OH; Computer Consultant, n/a
Greg Koch, Tampa, F1; Computer Consultant, PW Technology
Greg Kuchta, Fort Collins, CO; Design Engineer, LSI Logic
Greg Licon, San Francisco, CA; Network Administrator, Key
Resources
Greg Lim, Atlanta, GA; Software Developer, InfiStar
Gregory A. Lund-Chaix, Portland, Oregon; Systems Administrator,
State of Oregon
Gregory A. O'Neil, Glendale, N-Y; Systems Engineer, n/a
Gregory James Berkholtz, Portland, Oregon; Senior Systems
Administrator and
Information Security Specialist, Yoshida's Inc.
Gregory Kirkendall, Parker, CO; President and CEO, OpenEtools
Gregory Recine, Lyndhurst, NJ; Grad Student (Comp Physics),
Stevens Institute of Technology
Gregory R. Warnes, Ph.D., Groton, CT; Statistician and Software
Developer, n/a
[[Page 28329]]
Gregory R. Wold, Langhorne, PA; , n/a
Gregory Y. Tada, Salt Lake City, UT; Software Developer, IAS
Design
Greg Roy, Norwell, MA; Software Quality Assurance Engineer,
PentaSafe Security Technologies
Greg Steiert, Aloha, OR; Hardware Design Engineer, n/a
Greg von Beck, Mesa, AZ; Programmer/Analyst, TRW Automotive
Greg Willden, San Antonio, Texas; Research Engineer, Southwest
Research Institute
Griffin Foster, Ramona, California; President, Tera256 Computer
Club
G. Robert Mattix, Allen, Tx; Data Network Engineer, n/a
Guillermo Maturana, Ph.D., Berkeley, CA, CTO Andes Networks,
Inc.
Guy Albertelli II, Ann Arbor, MI; Specialist in Educational
Technology, Michigan State University
Guy Garrison, San Francisco, California; Motion Graphics
Designer, Garrison
Guybernetics
Guy Speier, La Crescent, MN; Sr. System Administrator, n/a
Gwen L. Veneskey, Pittsburgh, PA; Director of Marketing and
Sales, Ounce of Prevention Software
Hal Black, Columbia, MD; Director, Software, n/a
Hal Bundy, Ottawa, Kansas; Librarian, Ottawa Library
Hal King, Knoxville, TN; Systems Programmer, University of
Tennessee
Hal Vaughan, Richmond, VA; Owner, Threshold Digital
Hamlin R. Krewson, Ames, IA; Macintosh Support Tech, Beacon
Microcenter
Hank Fisher, Arvada, Colorado; Software Engineer, Private
Citizen
Hans Hazelton, Anchorage, AK; Sr. Network Technician, GCI
Hans Kugler, Tempe, AZ; software engineer, n/a
Hargun Khanna, San Jose, CA; Student, Archbishop Mitty High
School
Harold L. Brooks, Urbana, IL; Network Administrator, Scitec
Harry Barrett, Canyon Country, Ca.; PC User (12 years), n/a
Harry G. Harbin, Woodinville, WA; Programmer/Analyst Contractor,
Tmp.Wordwide/Washington Mutual
Harvey C. Scobie III, Manchester, NH; Technical Specialist,
Kollsman
Harvey Lange, Toney, Alabama; Systems Analyst, n/a
Harvey Ussery, Hume, Virginia; Member, Northern Virginia Linux
Users Group
Harvie Branscomb, Carbondale, CO; Owner, Charybdis
Heath Oderman, Suffolk, VA; Senior Consultant, netdecisions
Hector Vasquez, Edinburg, TX; Computer Specialist, The
University of Texas-Pan American LAC Dept.
Heidi Miller, Los Gatos, CA; Technical Writer, Gatespace Inc.
Heidi Shanklin, Portland, OR; Apple Service Tech, Metro
H. Emery Ford, Kensington, MiD; Senior Programmer, CodeRyte
Henry Keultjes, Mansfield, OH USA; President, Microdyne Company
Herb DaSilva, Andover, MA; Senior Software Engineer, Adaptive
Optics Associates
Herrick Goldman, Boston, MAss; Designer, Herrick Goldman
Lighting Design
Hollie Schmidt, Lexington, Massachusetts; President, Lifting
Mind Inc.
Holly Shaltz, Boyne City, MI; Freelance Web Designer, Shaltz
Farm
Holly S. Robinson, Tamarac, FL; Technical Writer, Metro Link
Howard Allen Cohen, Holllywood, Florida; Attorney, Atkinson,
Diner, Stone, Mankuta and Ploucha, P.A.
Howard E. Melton III, Sacramento, California; Registered Voter,
Self Employed
H. W. Egdorf, Los Alamos, NM; Technical Staff Member, Los Alamos
National Laboratory
H. william Welliver III, Mountain Top, PA; Systems
Administrator, Fairchild Semiconductor
Ian Ballantyne, Vienna, ; Software Engineer and System
Administrator, Schuster and
Hwesta Gmbh
Ian Billington, Ester, AK; Student / Network Tech, University of
Alaska Fairbanks
Ian Felton, Morgantown, West Virginia; n/a
Ian Hall-Beyer, Prairie Village, KS; Consultant
Ian McMahon, Atlanta, GA; Linux Software Engineer, e-
VERIFILE.com
Ian Ragsdale, Austin, Texas; Software Engineer, SKYLIST
Ian Sterling, Memphis, TN; System Administrator, n/a igor
Furlan, San Jose CA; IC Design Engineer, National Semiconductor
Ilan Rabinovitch, Encino, CA; n/a
Ilya Volynets, Belmont, CA; VP of Engineering, Total Knowledge
Imad Hussain, West Lafayette, IN; Student, Purdue University
Ismet Kursunoglu, MiD, Manhattan Beach, CA; Founder,
linuxatlax.org
Ivan Kohler, San Francisco, CA; Developer, Debian
Jack Dunn, Omaha, Nebraska; Citizen, n/a
Jack Gott, Austin, Texas; Software Engineer, Compaq
Jack Green, San Francisco, CA; n/a
Jackie D. Smith, Imperial, Missouri; retired
Jack L Caldwell, Jr., Sugar Hill, GA; Member Technical Staff,
Movaz Networks
Jack Lloyd, Baltimore, MD; System Administrator, Johns Hopkins
University
Jack Park, Brownsville, CA; Independent Software Developer,
Thinkalong Software
Jack Wenger, Madison, WI; IS Sytems Specialist, Wisconsin
Department of Natural Resources
Jacob Gemmell, Juneau, Alaska; Network Specialist, Alaska
Department of Labor & Workforce Development
Jake Robb, Grand Rapids, Michigan; Software Engineer, 43rd
Parallel Technologies
James Adams, Denver, CO; Software Engineer, Agilent Technologies
James Altes, Washington, DC; Electronic Publishing Specialist,
American Red Cross
James Ault, Albany, NY; Information Security Leader, Noble
Consulting
James B. Bushman, Medina, Ohio; President, Bushman &
Associates
James B. Evins, Alexandria, VA.; Electrical Engineer, n/a
James B. Greer, Memphis, TN; Concerned Citizen, Group Of Linux
Users in Memphis
James B. Rimmer, San Diego, California; Software Engineer,
CenterComm
James Damour, Albany, New York; Principle Consultant, Keane
James David McIninch, Ph.D., Burlington, MA; Computational
Biologist, Cereon Genomics
James Dixon, Mannington, WV; n/a
James Domenico, San Francisco, CA; TECH, Self-employed
James E. Collins, Jr., Hinesburg, VT; V. P., Treasurer, Vermont
BS
James E Flemer, Troy, NY; Student, Rensselaer Polytechnic
Institute
James E. Powell, Englewood, CO; President, Silver Future
Software
James Fitch, Napa, CA; Chief Deputy and System Administrator,
Solano County Public Defender
James Flynn, Sunnyvale, California; Software Engineer, Self
Employed
James Gallagher, Cypress, CA; Software Engineer, Boeing--;C-
17 Engineering Data Management
James Gettys, Carlisle, Massachusetts; Principal Member of
Technical Staff, Compaq
James Giacchi, Warren, NJ; Personel, persinel
James Gregory Davidson, San Diego, California; Instructor,
Learning Tree International
James Hardwick, Salt Lake City, Utah; Software Engineer, GE
Medical Systems
James Hebert, Paradise, CA; Consultant, Self Employed
James Henderson, Salt Lake City, UT; Sr. Systems Engineer, n/a
James H. Kimura, Berkley, Michigan; End User, Private Citizen
James John Ewell III, Katy, Texas; CEO, Ewell Enterprises
James Kennedy, Topeka, Kansas; Progammmer/System Administrator,
Standard Beverage Corporation
James Lamanna, Pasadena, CA; Student, California Institute of
Technology
James Landon, Overland Park, Kansas; Senior Network Engineer,
Sprint Corporation ,lames LasCola, Portland, OR; Systems Admin,
Romar
James LewisMoss, Durham, NC; Developer, Linux Developers Group
James Lieb, Fremont, California; Software Consultant, Wild Open
Source Inc.
James Lopez, Carrollton, Texas; Sales Manager, CompUSA
James L Osborn, Jr MSEE, Melbourne Beach, Florida; Senior
Account Engineer, PacketVideo Corporation
James L. Sullivan, Fort Pierce, FL; Supervisor, Harbor Branch
Oceanographic
Institution
James Lucha, Moreno Valley, CA; Programmer/Analyst, San
Bernardino Medical Group
James Mitchell Ullman, Statesboro, Georgia; Technical Support
Specialist I, Georgia Southern University
James Moss, Gresham, Oregon; Creative Director, Personal Image
Concepts
James M. Smith, St. Louis, MO; Manager, Technical Services,
Intercon
[[Page 28330]]
James Myers Jr., Middletown, NY; Water Operator, Town of Goshen
James Newby, Carbondale, IL; Undergraduate, SIUC
James Patrick Miculka, Houston, Texas; Software Engineer, BMC
Software
James Perkins, Beaverton, OR; Software Engineer, IEEE Associate
Member
James Price, Atlanta, Georgia; System Administrator, n/a
James R. Hofmann, Naperville, IL; Senior Software Engineer,
Ricardo Software
James Richard Tyrer, Green Valley, AZ; Consultant; Member, ACM
James R. Leu, Allison Park, PA; Independent Software Developer,
n/a
James R. Maynard III, Fairmont, Minnesota; Senior Systems
Engineer, Global MAINTECH Corporation
James Roberts, Birmingham, AL; Software Engineer, BankWare
James Rogers, Ridgecrest, CA; Software Engineer, NAWCWD
James Salsman, Mountain View, CA; Private Citizen, United States
of America
James Sanford, Norwood, OH; Developer, Reynolds and Reynolds
James Shofstall, Carterville, Illinois; Owner, Select Synthetics
James Simons, Atascocita, Texas; Webmaster, International
Webmasters Association
James Sterling Jr., McCrory, Arkansas; Computer Technician,
Crabtree's Computer
James S. Wadell, Anchorage, Alaska; Systems Analyst, SAIC
James Wartell, Tucson, Az; Programmer, University of Arizona
James White, Laguna Hills, CA; Software Consultant, Pagesmiths
James W. Wiebmer, Petaluma, CA; Manager Systems Administration,
Westwave Communications, Inc.
James Zach II, Frankton, IN; Electronics Technician, Smurfit-
Stone Container
Jamie Dow, Newport Beach, CA; Student, University of California,
Irvine
Jamie Lee Cho, North Bergen, New Jersey; Technical Architect,
Zelo Technologies
Jamie Piperberg, Hamden, CT; Software Engineer, n/a
Jamie Yukes, Seattle, WA; Independent Consultant, TCN
Communications
Jared Allar, Fargo, North Dakota; Student, North Dakota State
University
Jared Curtis, Fresno, CA; Student, Fresno City College
Jared Robinson, Springville, UT; Software Engineer, Symantec
Corporation
Jarred Fehr, Marietta, Georgia; PC Coordinator, Peachtree
Business Products
J. Arruda, Santa Clara, CA; Corporate Alchemist, VA Software
Jason A. Dujardin-Terry, Spokane, WA; Computer Tech, Descriptive
Imaging
Jason A. Tripp, Edenton, NC; Independent Software Developer, n/a
Jason Baietto, Boca Raton, Florida; Principal Engineer,
Concurrent Computer Corporation
Jason Balicki, St. Louis, MO; Sr. Network Engineer, Alexander
Systems
Jason Bergstrom, Portland, OR; System Administrator, Mentor
Graphics
Jason Box, Binghamton, New York; Software Engineer, Self
Jason Cox, Irvine, Ca; IT Manager, E-Commerce Exchange
Jason Day, Atlanta, GA; Software Engineer,n/a
Jason Greene, Fairway, Kansas; Software Eng. IV, Sprint
Jason Guidry, Brackettville, Texas; Director of Bands, Brackett
ISD
Jason Henriksen, Concord, CA; President, Hardy Henriksen Hughes
Consulting, Inc.
Jason Howard, Oakdale, CA; Software Engineer, SpectSoft
Jason Jobe, Purcellville, VA; President, Datalore
Jason L. Shiffer, Vienna, VA; Senior Software Engineer,
Zerotao.com
Jason McC. Smith, Chapel Hill, NC; PhD Candidate, Univ of North
Carolina at Chapel Hill
Jason M. Crist, Lexington, Kentucky; New Media Specialist, Hart
Media Services
Jason M. Felice, Cleveland, OH; Technology consultant and
business owner, Cronosys
Jason Noble, Atlanta, Georgia; Software Engineer, n/a
Jason Penney, Dracut, MA; Software Engineer, n/a
Jason Pierce, Greensboro, NC; Computer Field Technician,
Softwired Systems
Jason Purdy, Cary, NC; Chief Technology, Journalistic, Inc.
Jason Radecki, Porter, Indiana; Engineer, Local 150
Jason Reich, San Diego, CA; Software Engineer, Qualcomm, Inc.
Jason Rennie, Cambridge, MA; Graduate Student, Massachusetts
Institute of Technology
Jason Samsa, Appleton, Wisconsin; Database Administrator,
Airadigm Communications
Jason Scheirer, Riverside, California; Professional Student
Intern, County of Riverside, CA
Jason Shonk, Montclair, NJ; Electronic Engineer, n/a
Jason Shupe, Pasadena, CA; System Engineer/Student, JPL/Cal Poly
Pomona
Jason Stefanovich, Alexandria, VA; Software Test Analyst, US
Government
Jason Titus, Brooklyn Park, MN; Consultant, Independent
Jason Waterman, Cambridge, MA; Research Scientist, MIT
Jason Westlake, Newnan, Georgia; Computer Technician, ICA
Consulting
Jason Woolever, Sunnyvale, CA; Sr. R&D Engineer, Synopsys,
Inc.
Jayan Moolayil, Chicago, IL; Senior Software Engineer, n/a
Jay Beale, Baltimore, MD; President, JJB Security Consulting
Jaye Mathisen, Medford, OR; Manager, Western Telephone
Integrated Communications
Jay R. Walker, Valparaiso, IN; Application Developer, Golden
Technologies, Inc.
Jay Sachs, North Adams, MA; Development Architect, Eziba.com
Jay Sulzberger, Yonkers, New York; Corresponding Secretary,
LXNY, New York's Free Software Organization
Jay W. Luther, San Anselmo, CA; Attorney, Law Offices of Jay W.
Luther
J.B. Nicholson-Owens, Champaign, Illinois; Consultant &
Owner, Forest Field Consulting
J. Clifton Bullard, Memphis, TN; Programmer, US Postal Service
JC Pollman, Burke, Virginia; Major, US Army
J. David Eisenberg, San Jose, CA; Programmer/Teacher/Writer, n/a
Jeanne S. Glazer, Silver Spring, FID; Consultant, The Seva Group
Jean-Pierre, Ann Arbor, Michigan; student, University of
Michigan
Jedediah Roach, Davis, California; Student, University of
California, Davis
Jeff Adams, Kyle, TX; System Administrator, n/a
Jeff Brown, San Diego, CA; Graduate Student Researcher, UC San
Diego
Jeff Carlson, Encino, CA; Systems Administrator, InfoUSA /
www.easytel.net
Jeff Coffin, Nevada City, CA; Software Engineer, contractor for
American Airlines
Jeff Couturier, Tampa, FL; Web Application Developer, ATT
Jeff Donner, Randolph, Massachusetts; Software Engineer,
Scheduling Systems Inc
Jeff Greenman, Los Angeles, CA, Paralegal, General Counsel's
Office, Los Angeles Community College District
Jeff Hayas, Boulder, Colorado; Senior Software Engineer, Storage
Technology Corporation
Jeff Holcomb, Tucson, Arizona; Software Engineer, Red Hat
Jeff Hostetler, Jeffersonville, IN; President and Software
Craftsman, Jeff Hostetler
Jeff Jackowski, Cary, North Carolina; Software Developer, n/a
Jeff Jennings, Boulder, CO; Advisory Firmware Engineer,
Benchmark Storage Innovations
Jeff Lightfoot, Peoria, AZ; Systems Controller, US Air Force
Jeff Mayzurk, Los Angeles, CA; Vice President, Technology, E!
Entertainment Television, Inc.
Jeff McKenna, Redmond, WA; President, McKenna Consulting Group
Jeffrey A. Ebert, Half Moon Bay, CA; Senior Logic Designer,
Sonics, Inc.
Jeffrey A. Worth, Stoneham, MA; Senior Vice President/MIS
Manager, Stoneham Savings Bank
Jeffrey Barger, Mason's Neck, Virginia; Systems Admin/Engineer,
Maczilla Heavy Industries
Jeffrey Bridge, Houston, TX; Programmer, Thyme Technology
Jeffrey C. Albro, Duxbury, NA; Consultant, interaction-
engineer.com
Jeffrey Dale Greenfield, Grand Rapids, MI; Systems Engineer,
Calvin College
Jeffrey D. Kent, Austin, Tx; Stores Manager, Physics Dept.
Jeffrey Goff, Forest Heights, MD; Software Engineer, Blackboard
Inc.
Jeffrey Johnson, Livermore, CA; Computer Scientist, Lawrence
Livermore National Laboratory
Jeffrey K. Downey, Raleigh, NC; Editor, Triangle Sports Journal
Jeffrey L. Clark, Coon Rapids, MN; Principal Software Engineer,
EDS PLM Solutions
Jeffrey L. Susanj, Florissant, MO; Member, ACM
Jeffrey Quinn, Nashville, TN; System Software Specialist,
Vanderbilt University Medical Center
[[Page 28331]]
Jeffrey Rehbein, Water Valley, MS; Macintosh Games Developer, n/
a
Jeffrey R Pitman, Hillsboro, OR; Software Engineer, Brooks
Automation
Jeffrey S. Morgan, Cleveland, Ohio; Director of Technology,
Bristol West Insurance
Jeffrey Wescott, San Francisco, California; Software Developer,
n/a
Jeffrey Willis, Columbus, Ohio; Student, Ohio State University
Jeffrey Y. Sue, MD, Honolulu, HI; Diagnostic Radiologist, n/a
Jeff Rosowski, Las Vegas, NV; Network Systems Specialist, n/a
Jeffry Jones, Marietta, GA; Senior Internet Application
Developer, weather.com
Jeff Shultz, Sacramento, CA; Partner, Sunfire Design and
Consulting
Jeff Wandling, Fall City, WA; Software Development Engineer,
RealNetworks
Jeff Wieland, West Lafayette, IN; Network Analyst/Engineer,
Purdue University
Jef Spaleta, Princeton, NJ; Graduate Student, Princeton Plasma
Physics Lab
Jemaleddin S. Cole, Glen Burnie, MD; Systems Analyst, Data
Computer Corp. America
Jem Lewis, Seattle, WA; Software Engineer, n/a
Jennifer Bohmbach, Minneapolis, MN; Information Architect,
Imaginet
Jennifer Mandel, Los Angeles, Ca; Computer Tech, freelance
Jeremiah Bachmann, Pittsburgh, PA; Software Engineer, n/a
Jeremiah Gilbert, Moriah, New York; Consultant, vtnetworks.net
Jeremiah Stanley, Arvada, CO; n/a
Jeremiah Trudeau, Tolland, CT; Graduate Student, University of
Connecticut
Jeremy D. Foshee, Seneca, SC; Programmer/Systems Analyst,
Integrated Support Systems, Inc.
Jeremy Green, Norman, OK; CTO, Digital Commerce Solutions
Jeremy Howes, Charlotte, NC; Product Mechanical Designer,
Eurotherm Drives Inc
Jeremy Leader, Arcadia, CA; Software Developer, self employed
Jeremy McMillan, Chicago, IL; Unix System Administrator, Aon
Jeremy Noetzelman, Seattle, Washington; Senior Network Engineer,
University of Washington
Jeremy Padfield, Dallas, TX; Design Verification Engineer, n/a
Jeremy Pastore, Bethlehem, PA; systems analyst, libra consulting
corp.
Jeremy Petersen, Draper, Utah; Manager, TeachStream
Jeremy Schiffer, NYC, NY; Computer Security Administrator,
Columbia University
Jeremy Stanley, Orem, UT; Software Engineer, LDS Missionary
Training Center
Jeremy Walker, Southfiled, MI; Software Developer, i33
Jeremy White, Saint Paul, Minnesota; President & CEO,
CodeWeavers, Inc.
Jerome D Krough, Laurel, Maryland; Chemist, n/a
Jerome Falatko, Reading, PA; Computer Systems Analyst, n/a
Jerry C. McGill, Ph.D., Crowley, Texas; Associate Professor,
UNTHSC-FW
Jerry L. Neff, Fresno, CA; Programmer/Analyst, State Center
Community College District
Jerzy Puchala, Alpharetta, Georgia; Senior Sftware Engineer,
Still Current Development
Jeshua Smith, Madison, WI; Undergraduate Student, University of
Wisconsin
Jesse Becker, Evanston, IL; Systems Administrator, n/a
Jesse Burson, Boston, MA; Manager of MIS, Adaptive Optics
Associates
Jesse Donaldson, San Jose, CA; Senior Software Engineer, Palm,
Inc.
Jesse Holden, Ukiah, CA; Web Designer / Computer Technician,
Independent Contractor
Jessica Slason, Southington, CT; Microsoft Alternatives
Hobbyist, n/a
J.F. Neveau II, Essexville, MI; Trooper, Michigan Dept. of State
Police
Jill Ratkevic, Sunnyvale, Ca; Consultant, n/a
Jim Barnes, Bellevue, WA; Network Administrator, S&B Inc.
Jim Belant, Pulaski, Wisconsin; Electrical Engineer, System
Engineer
Jim Bengtson, Nevada, Iowa; Sr. Programmer/Analyst, Ruan
Transportation
Jim Bertin, Hysham, MT; Tech Coordinator, Hysham Public Schools
Jim Eikner, Austin, Texas; Network Administrator, n/a
Jim Gamble, Warrenton, VA; Software Engineer, n/a
Jim Matisi, Richardson, Texas; Sr. Middleware Administrator,
CompUSA
Jim Miller, Cedar Rapids, IA; Chief of Software Infrastructure,
i-OP
Jim Priest, Raleigh, North Carolina; CTO, ClickCulture
Jim Quinn, Shelton, CT; Desktop Systems Administrator, Getronics
Jim Roland, Irving, TX; Consultant, n/a
J. Kenneth Gentle, Lincoln University, PA; Software Architect,
iMedium, Inc.
J Matte, Atlanta, GA; Application Programmer, Peachtree Business
Products
J. Nathan Matias, Mount Joy, PA; Technologist, Allied Networks
(www.allied.net)
JoAnna Minneci, Los Angeles, CA; Webmistress, On Target Design
Joe Howard, Puyallup, WA; Student, University of Puget Sound
Joe Kazura, Durham, NH; Information Technologist, University of
New Hampshire
Joel F. Leland, Oceanside, Ca; Owner, http://
www.moonstoneservices.com/
Joel Garringer, Tulsa, OK; Senior Web-Designer/Developer, Tek-
Systems
Joel Harris, Indianapolis, IN; Consultant, Bravura Systems
Joel Kickbusch, Rockledge, FL; Lead Software Engineer, e-
Security
Joel Miles, Maplewood, MN; IT Support Specialist, Science Museum
of Minnesota
Joel Schneider, Bloomington, Minnesota; Software Developer,
Effective Tech Services
Joe Marcotte, Honolulu, HI; Network Security/Firewall
Administrator, n/a
Joe Naccarato, Wilmington, DE; Programmer, Dade Behring
Joe Provo, Needham, MA; Director, RCN Corporation
Joe Smith, Philadelphia, PA; biomedical research fellow, Thomas
Jefferson University
Joe Weber, Louisville, CO; Senior Technologist, Cable Television
Laboratories
John August, New Orleans, Louisiana; Analyst, Tulane University
John A. Varela, McLean, VA; Retired
John Beal II, Bend, OR; Network Engineer II, Orcom Solutions,
Inc.
John Beamon, Baton Rouge, LA; Internet Systems Administrator,
EATEL
John Bekas, Jr., Chicago, IL; Software Architect, Confirmative
Technologies, Inc.
John Bryan, Austin, Texas; Programmer Analyst, Broadwing
Communications
John Callaway, Santa Cruz, California; Software Engineer,
visiComp
John Carpenter, Brookfield, WI; Software Engineer, Penta
Technologies
John Clayton Long, Tallahassee, Florida; Programmer, Graphic
Artist, Student, National High Magnetic Field Laboratory
John Clymer, Fairmont, MN; Software Engineer, Kahler Automation
John C Meuser, West Lafayette, Indiana; Student, Purdue
University
John Crowley, Somerville, MA; Web Consultant, johncrowley.net
John D. Heintz, Austin, TX; Software Integrator, Isogen
International, LLC.
John Diley, Gaithersburg, Maryland; n/a
John D. Mitchell, Moraga, CA; Citizen, USA
John Donaldson, Brattleboro, Vermont; Director, K2Kid:HyperMedia
John Edstrom, Newport, OR; Senior Programmer, NewSof Group
John E. Ivory, New Hartford, NY; President, Blue Vista Solutions
John Enters, Cedarburg, WI; Web and Database Developer,
Sysnetweb
John Evans, Boston, Massachusetts; Computer Specialist,
Association of Computing Machinery
John Ewart, San Bernardino, California; Software Developer,
LANtrocity
John F Biggs II, Charlotte, North Carolina; Systems Admin,
Wachovia
John F. Chamblee, Tucson, AZ; Graduate Research Associate,
Center for Applied Spatial Analysis
John F. Houde, San Francisco, California; Assistant Research
Neuroscientist, University of California
John Franks, Evanston, IL; Professor, Northwestern University
John G. Hasler, Elmwood, Wisconsin; Debian Developer
John Goodleaf, Seattle, Washington; Technology Coordinator,
Immunex
John Grayless, San Antonio, Texas; IT Director, Gerloff Company,
Inc.
John Guthrie, Washington, DC; Software Developer, American
Institutes for Research
John Hall, Fairbanks, Alaska; Programmer, University of Alaska
John Hardin, Snohomish, Washington; Internal Systems
Administrator, Apropos Retail Management Systems, Inc.
John Hatch, Dundas, MN; Computer User: Microsoft, Linux and
Apple Products, n/a
John Heasley, Portland, Oregon; n/a
John Hohm, Oak Forest, IL; Software Developer, Applied Systems,
Inc.
John Holcomb, Greenville, IL; n/a
John Holstein, Charleston, WV; Helpdesk/Support Coorinator,
www.cotse.com
[[Page 28332]]
John H. Robinson, IV, San Diego, CA; Systems Administrator,
University of California
John (Jack) Varga, Lafayette, Colorado; Data Systems/Software
Architect, Independent
John J. Beach, Waterville, MN; Instructor, PC/LAN, IT
Department, Brown College
John Karakash, Raleigh, NC; Senior Software Engineer, Lv17
Systems Inc.
John K. Edwards, Burke, VA; Vice President, Results Computing
Corporation
John K. Herndon, Kansas City, Missouri; Student, DeVry
John K. Molnar, Atlanta, GA; Network Security Developer, Trellis
Network Security
John Kroll, Milwaukee, Wisconsin; Systems Analyst, n/a
John Langley, Hollis, NH; Director of Platform Archtiecture,
KANA Software
John L. Grzesiak, Derry, NH; Senior Analyst, The Learning
Incentive
John Manning, Sterling, VA; President, electronworks, inc.
John McCain, Birmingham, Alabama; Systems Engineer, Layer3
Communications
John Medway, Austin, TX; Human Being, Human Race
John Meek, Dallas, Tx; Owner, Your IT Services
John Merryweather Cooper, College Place, Washington; Student/
FreeBSD Maintainer, n/a
John M. Siino, Reno, NV; Sole-Proprietor, Advanced Engineering
Services
John Napiorkowski, New York City, NY; Senior Programmer, Bristol
Myers Squibb
John Oglesby, Snohomish, Washington; President, Data Index, Inc.
John Oliver, San Diego, CA; Systems Administrator, hosting.com
John Paquin, Freeland, Maryland; Senior Programmer, Breakaway
Games
John P. Conner, Colorado Springs, CO; President, Empire Digital
Instruments
John Peter Hermes, Waterloo, Illinois; DBA, Fleishman-Hillard
John Pierce, Palatine, IL; Consultant, n/a
John Pulliam, Frisco, Tx; Associate Technical Profesional,
Halliburton Energy Services
John Quigley, Greenwich, Connecticut; Student, SUNY Maritime
College
John Reyst, Royal Oak, Michigan; Owner, Net-Mechanics.com
John Rohrbaugh, Fort Collins, CO; Design Automation Engineer,
Agilent Technologies
John Seals, Minneapolis, MN; Consultant, Solution Design Group
John Soliday, Marietta, GA; Systems Administrator, Self john
Stillwagen, San Diego, CA; Database Administrator, La Jolla
Institute for Allergy and Immunlogy
John Stoneham, Baltimore, MD; Associate Software Engineer,
eOriginal, Inc.
John Stoner, Chicago, Illinois; Software Developer, Independent
John Sweeney, Satellite Beach, FL; Systems Administrator, SAIC
John Tebbutt, Frederick, MD; Computer Scientist, The National
Institute of Standards and Technology
John Tobias, San Francisco, California; Sr. Network Engineer,
Marin Networks Inc.
John Vann, Collegeville, PA; Web Developer, Kaloke Technologies
John Van Patten, Petoskey, Michigan; Violinist/Music Instructor,
Self employed
John Viega, Warrenton, VA; CTO, Secure Software Solutions
John Vitek, Anderson, SC; Owner/President, Ideal Solutions
John V. Martinez, Atlanta, GA; Principal Software Engineer,
Ciena
John Voigt, Terre Haute, Indiana; System Administrator, Valley
Technology
John Walsh, Broomfield, CO; Java Architect, Sun Microsystems
John Wedoff, Somerville, MA; Software Developer, n/a
John Wendel, Monterey, CA; Computer Programmer, U.S. Navy
John Wenger, Ph.D., Redondo Beach, CA; Internet Consultant,
Wenger Consulting
John W. Linville, Mebane, NC; Computer Engineer, LVL7 Systems,
Inc.
John Wohlers, Somonauk, IL; Library Technology Assistant,
Waubonsee community College
Jonathan Abbey, Austin, TX; Senior Operating System Specialist,
The University of Texas at Austin
Jonathan Blocksom, Vienna, VA; President, GollyGee Software
Jonathan Booth, Urbana, IL; Graduate Student, UIUC
Jonathan Cameron, Chandler, Arizona; Software Engineer, Motorola
Jonathan D. Nolen, Santa Barbara, CA; Web Developer, n/a
Jonathan E. Greenberg, Ann Arbor, Michigan; Lead Consultant,
Innovative Process Solutions
Jonathan Freiermuth, Rochester, NY; Lead Systems Engineer,
VoiceWeb Corporation
Jonathan Hartley, Denver, CO; Senior Software Engineer,
SchlumbergerSema
Jonathan Hart, Livermore, CA; Citizen, citizen
Jonathan Haskins, Los Angeles, CA; Web Designer, n/a
Jonathan Hill, Milwaukee, Wisconsin; Systems Administrator,
Marshall & Ilsley Corporation
Jonathan Kamens, Brighton, MA; Senior Software Engineer, Curl
Corporation
Jonathan Korman, San Francisco, CA; Principal designer, Cooper
Interaction Design
Jonathan Lindstrom, St. Louis, MO; Senior MIS Specialist,
Anheuser-Busch Companies
Jonathan McLin, Tempe, AZ; Chief Technology Officer, Cottonwood
Technology Group
Jonathan M. Hamlow, Minneapolis, MN; Development Coordinator,
Public Radio International
Jonathan Morris, Portland, Oregon; ASQ Certitified Software
Quality Engineer, private citizen
Jonathan Newquist, Kearney, Nebraska; computer technician, n/a
Jonathan Niebling, Boston, Mass.; Flight Attendant, American
Airlines
Jonathan Nizar, Baltimore, Maryland; Student, Johns Hopkins
University
Jonathan Powers, Melbourne, FL; Digital Designer, Harris Corp.
Jonathan Troiano, Los Angeles, CA; IT Consultant, Freelance
Jonathan Walton, Newport Beach, CA; Design Engineer, Gordian
Jonathan Weeks, Seattle, WA; Director of Engineering, Performant
Jon Beckett Schreiber, Milwaukee, WI; IT Testing Analyst,
Manpower
Jon Ciesla, Des Moines, IA; PC Systems Support, American
Republic Insurance Company
Jon Hartwell, La Crescent, MN; Consultant, FIDS
Jon McClintock, El Cerrito, CA; Project Engineer, Blue Mug
Jordan Peterson, Watertown, WI; Network Administrator II,
DeLaRue Cash Systems
Jorge Guerra, Miami, FL; Business Development Manager, Opera
Software
Joseph A. Knapka, El Paso, TX; Sysems Engineer, TransCore
Intelligent Traffic Systems, Inc.
Joseph Alek Piasecki, Danville, Illinois; Systems Administrator,
Danville Holdings, Inc.
Joseph Buck, Campbell, CA; Principal Engineer, Synopsys
Joseph Cooper, Portland, Oregon; Programmer, Torment Interactive
Joseph Crowley III, Dedham, MA; Data Entry Specialist, Preferred
Temporaries
Joseph Daniel Lyman, Tigard, OR; CIO, Exacura Professional
Technologies
Joseph Esrey, Gainesville, FL; Student, Anthropology, University
of Florida
Joseph Foley, Cambridge, MA; Senior Software Engineer, Akamai
Technologies
Joseph J Collins, Middlesboro, Kentucky; Pharmacist, n/a
Joseph Kanowitz, Ridgefield, CT; Network Administrator,
Individual
Joseph K. Fish, Raytown, Missouri; Programmer / Analyst,
DataCapture Technologies
Joseph L. Hill, Hanover, NH; Unix Systems Manager, Dartmouth
College
Joseph L. McCay, Manchester, NH; Software Engineer, n/a
Joseph Lubin, New York City, New York; Senior Software Engineer,
emagine solutions
Joseph Majeske, Highland Park, NJ; VP Software, Sonorus, Inc.
Joseph Palmer, San Jose, CA; (Former) Director of Hardware
Engineering, Be, Inc.
Joseph R. Justice, Alexandria, VA; Computer Programmer, self-
employed
Joseph Rock, Ann Arbor, MI; Communications Engineer, NextHop
Technologies Inc.
Joseph Shraibman, New York, NY; Director of Internet Operations,
Xtenit Inc (http://www.xtenit.com)
Joseph Sloan, Fullerton, Ca; Systems Engineer, Mirai Consulting
Joseph Vandevander, Raleigh, North Carolina; System
Administrator, n/a
Joseph W. Gibson, Pasadena, CA; Lead Software Engineer, n/a
Josep L. Guallar-Esteve, Chapel Hill, NC; QA Testing Engineer,
Red Hat Inc. & member of IEEE Computer Society
Josh Bauguss, Albuquerque, New Mexico; Senior Programmer, Web-
Galleries
Josh Douglas, Bedford, VA; Systems Administrator, Smyth
Companies
Josh Jackson, Houston, TX; Founder, University of Houston Linux
Users Group
Josh Mayers, Boston, MA; Network Engineer, n/a
Josh Prokop, Brewster, MA; Independent Softeware Developer, n/a
Josh Simon, Aurora, IL; Principal, Joshua S. Simon Consulting
Joshua Arnold, Austin, Texas; Systems Administrator, IronRhino
[[Page 28333]]
Joshua Bennett, Chicago, IL; Corporate Systems Technologist, ABN
A mro
Joshua Crone, Baltimore, Maryland; Unix Systems Administrator,
Advertising.Com
Joshua Fluty, Greenville, SC; Independent Programmer, n/a
Joshua Fritsch, Stamford, CT; Security Analyst, UnixGeeks.Org
Joshua Fryman, Bogart, GA; PhD Student and Researcher, Georgia
Institute of Technology
Joshua Kayse, Smyrna, Georgia; Student, n/a
Joshua Keith, Malden, MA; n/a, n/a
Joshua Kirby, Little Rock, Arkansas; IT Specialist III,
Southwest Power Pool
Joshua Levenson, Raleigh, NC; Premier ISV Partner Engineer, Red
Hat
Joshua Smith, East Lansing, Michigan; Student, Michigan State
University
Joshua Willingham, Phoenix, AZ; Technical Coordinator, Aries
Technology, Inc.
Josh Varner, Bartlesville, Oklahoma; Programmer, Diversified
Systems Resources
Josiah Royse, Lexington, KY; Technical Contractor, Analysts
International
J. Scott Evans, Springfield, VA; Chief Technology Officer,
Computational Physics, Inc.
J. Scott Jaderholm, Provo, Utah; Student, Brigham Young
University
Juan Lang, San Jose, CA; software engineer, Cranite Systems
Judd Rogers, Austin, Texas; Product Developer, BMC Software
Judith Phillips, Atlanta, Georgia; Learning Products Engineer,
HP
Jules Agee, Seattle, WA; System Administrator, Pacific Coast
Feather Co.
Jules Siegel, Cancun, Quintana Roo; Writer and Graphic Designer,
CafeCancun.com
Julia Christianson, Arlington, VA; Administrative Director, ICON
Community Services
Julia Hart, NYC, NY; Student, Columbia University
MTC-00028573--;0025
Julia Mackert, Galesburg, Illinois; PC Support Specialist, OSF
Julia Mason M.D., Waunakee, WI; Pediatrician, Physicians for
Social Responsibility
Julie Szekely, Austin, Texas; Web Designer, Self-employed
Julio A. Cartaya, Atlantic Highlands, New Jersey; Systems
Engineer, AT&T
Justin A. Faughn, College Station, TX; Student, Texas A&M
University
Justin Anderson, Amherst, MA; Student, University of
Massachusetts Amherst
Justin Ballou, Burlington, VT; EDI Project Manager, The
Physician's Computer Company
Justin Dugger, Olathe, KS; Student, Kansas State University
Justin D. Whitney, Worcester, Massachusetts; n/a
Justin Fletcher, Murray, KY; Network Technician, Murray State
University
Justin French, McPherson, KS; Student, n/a
Justin Georgeson, Plymouth, MN; Software Engineer, Optical
Solutions Inc.
Justin Guerin, Colorado Springs, Colorado; Product Engineer,
Atmel Corp.
Justin Hall, Cincinnati, OH; Network Administrator, The Sant
Corporation
Justin Lee, Denver, CO; Senior Software Development Architect,
Harland Financial Solutions
Justin Miller, Somerville, Massachusetts; Senior Software
Architect, Oculus Technologies Corp.
Justin Wojdacki, Santa Clara, CA; Senior Engineer, Analog
Devices
Kanayo Orji, East Lansing, MI; Student, n/a
Karen Mirande, Dufur, OR; Landscape, U.S. Citizen
Karl Bellve, PhD, Worcester, Massachusetts; Research Engineer,
University of Massachusetts
Karl J. Smith, Portland, OR; Systems Engineer, n/a
Karl M. Hegbloom, Portland, Oregon; Developer and Consultant,
The Debian Project
Karl S. Griffiths, Edwardsville, Illinois; Microcomputer
Technician, I cannot disclose
Katherine Smith, San Jose, CA; Scientific Programmer, n/a
Kathleen L Smith, Seattle, WA; Retired, Seattle schools
Kathy Cook, Los Angeles, CA, Registered Psychologist, Didi
Hirsch Community Mental Health Center
Kathy Evans, Antioch, TN; Web Designer, E.I.C.C.
Kathy I. Morgan, Tok, Alaska; just a US citizen who uses
computers
Kaushik De, Arlington, TX; Professor, The University of Texas at
Arlington
Keith Bierman, San Jose, CA; Software Developer, n/a
Keith Hays, Champaign, IL; Senior Support Engineer, Argus
Systems Group
Keith H. Hayden, Dumont, NJ; Web Site Developer,
powersolution.com
Keith Holland, Bowling Green, KY; Software Developer,
Independent Consultant
Keith Keller, San Francisco, CA; System administrator, n/a
Keith K Gross, Madison, WI; Development support specialist,
Wisconsin Department of Revenue
Keith Reed, Detroit, Michigan; UNIX/SAN Administrator, CareTech
Solutions/Detroit Medical Center
Keith Wissing, Lititz, PA; Senior Software Engineer, IDenticard
Kelly Cordellos, Santa Rosa, CA; Apple Sales Consultant, Apple
Computer
Kelly Hatcher, Austin, Texas; Senior Software Engineer, Vignette
Corporation
Kelly Hickel, Minneapolis, MN; Senior Software Architect, n/a
Kelvin Kakugawa, Champaign, IL; Student, Self
Ken Bowman, Mt. Pleasant, SC; IT Manager, Quovadx
Ken Conrad, Dayton, OH; Network Analyst, Motoman, Inc.
Kendall Bailey, De Pere, WI; Software Engineer, Schneider
National
Kendall whitlatch, Duvall, Washington; IT Consultant/Software
Engineer, Grendel Industries
Ken Engel, Berkeley, CA; Software Engineer, member, Tau Beta Pi
National Engineering Honor Society--;tbp.org
Ken Fox, Ann Arbor, Michigan; Programmer, Ford Motor Company
Ken Horton, Indian Harbour Beach, FL; Developer, ImageLinks
Ken Kelley, Charlottesville, VA; Software Engineer, n/a
Ken Klavonic, Concord, NC; Systems Admin, Wachovia
Ken Kumayama, Glendale, Arizona; System Administrator, n/a
Ken Martin, Woodinville, WA; Software Engineer, n/a
Ken McKee, Hillsborough, NC; Analyst Programmer, Duke University
Medical Center
Kenneth Badertscher, San Jose, CA; Technical Yahoo!, Yahoo!
Personals
Kenneth Bromberg, Garden City, NY; College Lab Technician, City
University of New York Graduate Center
Kenneth E McFarling, Portland, Oregon; Software Engineer, n/a
Kenneth Eschrich, Branford, CT; Student, Worcester Polytechnic
Institute
Kenneth J. Hendrickson, Tucson, AZ; Principal Engineer, Raytheon
Missile Systems
Kenneth J. Lund, Houston, Texas; Hardware Engineer IV COMPAQ
Kenneth M. De Tullio, Huntsville, AL; Programmer, BRC
Kenneth Miller, San Francisco, California; Associate Professor,
University of California
Kenneth V. Cuvelier, Canby, OR; Computer Consultant, Becken
Computer Services
Kenneth W. Cochran, Alexander City, Alabama; Consultant,
Independant
Kenneth W. Melvin, East Bend, North Carolina; Citizen, United
States of America
Kenn Murrah, Dallas, Texas; Webmaster, Ussery Printing
Ken Settle, Newport Beach, CA; Software Developer, TransMedia
Productions, Inc.
Kent Benedict, Iowa City, Iowa; Systems Administrator, n/a
Kent Peterson, Charlottesville, Virginia; Senior Quality
Assurance Analyst, n/a
Kent Pirkle, Atlanta, Georgia; Systems Administrator, n/a
Kent Schumacher, Minneapolis, MN; IS Manager, Structural Wood
Corporation
Kermit Woodall, Glen Allen, VA; President, Nova Design
Kerry Crouse, Nashua, NH; Owner/Engineer, Crouse Consulting
Kevin A. Sesock, Stillwater, Oklahoma; Deskside Computer Support
Specialist, Oklahoma State University
Kevin D. Clark, Nottingham, NH; Software Engineer, n/a
Kevin Dickson, Billerica, MA; Software Engineer, Raytheon
Kevin H. Devin, Bothell, WA; Systems Administrator, n/a
Kevin Hostelley, Cleveland, OH; Technology Master, KeyBank
Kevin Hutson, Austin, TX; Programmer, Insomniac's Lounge
Kevin J. Butler, Spanish Fork, Utah; Software Architect, Campus
Pipeline
Kevin Martin, Tuxedo Park, NY; Owner, Brass Cannon Consulting
Kevin McFadden, McLean, VA; consultant, n/a
Kevin Michael Pansky, Cleveland, OH; Student, Northwestern
University
Kevin Morgan, Los Angeles, CA; Consultant, Self-employed
Kevin Nelson, St. Louis, MO; Senior SMC Staff, Cybercon
[[Page 28334]]
Kevin O'Connor, Ardsley, NY; Systems Analyst, McGraw-Hill
Kevin O'Mahoney, Palo Alto, California; Senior Software /
Hardware Engineer, n/a
Kevin Oster, Milpitas, CA; Software Engineer, Member, ACM
Kevin Rayhons, San Antonio, TX; Multimedia Specialist, Southwest
Research Institute
Kevin Sonney, Pittsboro, NC; Programmer, webslingerZ, Inc
Kevin Swearingen, Saint Charles, Missouri; President, Reliable
Group
Kevin White, Newbern, TN; Computer Support Technician,
Collierville Municipal Government
Kevin Wright, Dallas, TX; Systems Technician, Neiman Marcus
Khouri Giordano, Melville, NY; Software Technology Researcher,
Nikon
Kimberly A. Brosan, Irmo, SC; Library Media Specialist, Mid-
Carolina High School
Kimberly Claffy, La Jolla, CA; associate research scientist,
Principal Investigator, UCSD, CAIDA
Kimberly Menninga, Grand Rapids, Michigan; Research and
Development Coordinator, The Composing Room of Michigan
Kip Gebhardt, San Francisco, CA; Software Engineer,n/a
Kip Manley, Portland, Oregon; Writer and designer, Freelancer
Konrad Nagel, Santa Cruz, CA; Application Manager, SZ
Testsysteme
Kory Hamzeh, West Hills, CA; President, Avatar Consultants, Inc.
Krishna Sethuraman, Sunnyvale, CA; Programmer/Analyst, SGI
Kris Ktindworth, Urbana, Illinois; Database Administrator, Carle
Clinic Association
Kristian Kvilekval, Santa Barbara, CA; Graduate Researcher, UC
Santa Barbara
Kristine Sawyer, Castro Valley, California; Concerned Citizen
Kurt Andersen, Liberty Lake, Washington; Postmaster, Agilent
Technologies
Kurt Anderson, Bangor, Maine; Info Security Assoc, Eastern Maine
Healthcare
Kurt D. Starsinic, Brooklyn, NY; Senior Software Architect,
WolfeTech Development
Kurt Overberg, San Francisco, CA; Analyst, KMDI Inc.
Kurt Schaeffer, Houston, TX; Technical Support Representative,
Larson Software Technology
Kurt Yoder, McLean, VA; Network administrator, Sport &
Health Clubs
K.V. Moffet, Lancaster, CA; Owner, Offworld Press
Kyle Davenport, Dallas, TX; SysAdmin, CompUSA
Kyle Hasselbacher, Elmhurst, IL; Programmer, n/a
Kyle Hoyt, Pinellas Park, FL; System Engineer, Raytheon
Kyle MacLea, Norwich, VT; Graduate Student, Dartmouth College
Kyle Mandli, Madison, Wisconsin; Software Engineer/Researcher,
Mandli Communications
Kyle McDonald, Burlington, MA; System Engineer/Programmer, Sun
Microsystems
Kyle Mesnard, Crystal Lake, IL; Student, University of Illinois
Kyle Wheeler, Cincinnati, Ohio; Student, Ohio University
Lamar Prosser, Charleston, SC; IT Coordinator for Ctr for Health
Care Research, Med Univ of SC
Lance Dryden, Astoria, New York; Network Administrator,
Modelwire
Lance Ivy, College Place, WA; Student, Walla Walla College
Lane Weast, Fort Myers, FL; Programmer Analyst I, Lee County
Clerk of Court
Lanny Powers, Athens, Alabama; President, LANPOWERS Inc.
Larry Groebe, Dallas, TX; VP New Media, Insider Marketing
Larry Hammer, Williamsburg, Virginia; Network Administrator,
Ecpi Technical College
Larry McVoy, San Francisco, CA; CEO, BitMover, Inc.
Larry Norris, Oklahoma City, OK; Director of Development, AFA
eDirect
Larry Sendlosky, Leominster, MA; Consulting Software Engineer,
Storigen Systems
Larry Smithmier, Cary, NC; Software Engineer, Oak Grove Software
Larry Staton Jr., Winter Park, Florida; Paralegal/Economist,
Holihan Diaz
Larry Works, Charlottesville, Virginia; Network Engineer, n/a
Lars R. Damerow, Oakland, CA; Senior UNIX System Administrator,
n/a
Laura Wick, San Diego, CA; Homemaker
Laurence Mills-Gahl, Chicago, IL; President, Webfarm, Inc.
Laurence Schorsch, Evanston, IL; Graduate Student, University of
Chicago
Lawrence Alkoff, Austin, TX; retired, n/a
Lawrence Gohar, New York, NY; Sr. Server/Network Engineer, n/a
Lawrence M. Brinley, Greenfield, IN; President/CEO, SOHO
Solutions
Lawrence R. Doolittle, Walnut Creek, California; Staff Engineer,
Lawrence Berkeley National Laboratory
Lawson Whitney, Concord, North Carolina; Citizen, United States
of America
Lee Adams, Lake Mary, Florida; BOFH, Synergy Southeast
Lee C Smith, Tyrone, GA; Regional Sales Mgr (Retiring),
Plastican Inc
Lee Glenn, Des Moines, Iowa; Software Engineer, n/a
Lee Graba, Minneapolis, Minnesota; Principal Engineer,
Honeywell, Inc.
Lee M. Bernbaum, Midwest City, OK; Programmer/Analyst, self-
employed
Lee Wenzbauer, Chicago, IL; Senior Consultant, DanielGraphics
Lee Willoughby, Kansas City, MO; Web Developer, AP Network
Services
Leif Sawyer, Anchorage, AK; Network Engineer, General
Communication, Inc
Lei Zhang, Los Angeles, CA; Student, UCLA Linux Users Group
Len Frazier, McAllen, TX; Systems Manager, Rio Grande Valley
Publishing
Leonard Park, Salem, MA; Sales Associate, Apple Computers
Leonard Schrieber, PhD, Fair Lawn, NJ; Senior Trading Systems
Analyst, n/a
Leon D. Shaner, Dearborn, ; Internet Architect, Sun
Microsystems, Inc.
Lewis Vincent, Melbourne, Vic; Manager, eDream Designs
Lex Mierop, Newbury Park, CA; Senior Software Engineer, Network
Telephone Services
Linchuan Liu, Mountain View, California; Student, University of
California at Berkeley
Linda Lawson, Phoenix, AZ; Flash Design and Production, n/a
Lindsay Pallickal, Elmsford, New York; Principle, Guidewalk LLC
Lion Templin, Minneapolis, Minnesota; Owner, LCR Systems
Lisa Applegate, Pekin, IL; Network/Systems Administrator, Pekin
School District 108
Lisa A Uber, Highland Park, New Jersey; Consultant/Project
Manager, Starling
Lisa Corner, Princeton, WV; System/Network Administrator, n/a
Lisa R. Bogue, Los Angeles, CA; System and Network
Administrator, n/a
Lisa Werner Carr, Dallas, Texas; Senior Content Developer, imc2
Lou Glassy, Bozeman, Montana; Software Engineer, RightNow
Technologies
Louis Canaiy, Fort Collins, Colorado; Systems Administrator,
Engineering Network Services (Colorado State University)
Lou Miller, Washington, DC; Project Coordinator, Washington
Metropolitan Area Transit Authority
Lucas McCauslin, Worcester, MA; Embedded Systems Engineer,
Microwave Radio Communications
Luc Lapalme, Sudbury, Ontario; Software Developer, Accutron
Instruments
Luke A. Kanies, Nashville, Tennessee; Infrastructure Architect,
Caterpillar Financial
Luke Crawford, Rochester, NY; Web Programmer, R Brooks
Associates
Lyle D. Vogtmann, Oak Harbor, WA; Pres., Whidbey Island Linux
User Group
Lynn Yuan, West Covina, California; Executive Director, i2s Inc.
MacDonald Jackson, Corvallis, OR; CAD Engineer, Intel
Malcolm Gin, Columbia, Maryland; Systems Architect, Member, ACM
Marcel Valcarce, Hollywood, CA; Designer/Director, Pacific Title
and Art Studio
Marc Grubb, Roslindale, MA; Director, IS, Panache Editorial
Marcia Baczynski, Jersey City, NJ; Member, New York Linux Users
Group
Marc Levine, Ukiah, California; Systems Analyst Programmer,
County of Mendocino
Marcus B. Sellers, Homer City, PA; Masters Candidate Biology,
Indiana University of Penna
Marcus I. Ryan, Ames, IA; Computer Engineer, Iowa Department of
Transportation
Marcus Porter, Falls Church, VA; Systems Engineer, National
Institutes of Health
Margaret Stephanie Leber CCP, Jeffersonville, PA; Chief
Technical Officer, Matrisync
Mario Martinez, New York, NY; Systems Engineer, Thomson
Financial
Marion Bates, Hanover, NH; Research Engineer, Institute for
Security Technology Studies
Mark ``Adam'' Baum, Elk River, MN; Software Engineer,
Lockheed Martin ATM
Mark Allshouse, Baltimore, Maryland; Student, Anne Arundel
Community College
Mark A. Lytle, Houston, Texas; Network Analyst, Phillips
Petroleum Co.
Mark Anderson, Chandler, Arizona; Component Engineer, Intel
Corp.
Mark A. Thomas, Germantown, Maryland; Owner, Play by Electron
Games
[[Page 28335]]
Mark Belnap, Pleasant Grove, UT; Software Developer, n/a
Mark C. Bradley, Eden Prairie, MN; Senior Software Engineer, n/a
Mark Clancy, Rochester, MN; Senior Analyst/Programmer, Mayo
Clinic
Mark Ericksen, Omaha, Nebraska; Software Engineer, n/a
Mark Fasheh, Los Angeles, CA; Student, UCLA Linux Users Group
Mark Gray, Atlanta, GA; Computer Systems Analyst, n/a
Mark Greene, Concord, NH; Sr. Systems Engineer, Capital Region
Health Care
Mark H. Bickford, Portland, ME; Programmer/Analyst, n/a
Mark Holbrook, Pocatello, Idaho; IS manager, AMI Semiconductor
Mark Horning, Aurora, CO; Unix Systems Administrator, IBM Global
Services
Mark Jackson, Fort Collins, Colorado; Software Engineer, Shuffle
Master
Mark Jacob, San Diego, CA; Software Engineer, Sony Computer
Entertainment America
Mark Jaroski, San Francisco, California; Senior Software
Engineer, World Health Organization
Mark J. Horn, Charlotte, NC; System/Network Administrator, n/a
Mark Juliano, Atlanta, GA; Unix Administrator, Autotrader.com
Mark King, Sun Valley, NV; Graphic Artist, n/a
Mark Kinzie, Baltimore, MD; Software Engineer, Johns Hopkins
University
Mark Martin, Rochester, New York; Experience Designer, Element K
Mark Miller, Berkeley, CA; Student, Univ. of California
Mark Mynsted, Lewisville, TX; Senior Application Developer, n/a
Mark Nottage, Berkeley, CA; Systems Engineer, n/a
Mark Parker, Salt Lake City, Utah; Lead Web Developer, Medicity
Mark Plimley, San Jose, CA; President, Plimley Consulting
Mark R. Andrachek, Jr., Richmond, VA; Concerned Citizen, n/a
Mark R. Millsap, Potomac Falls, Virginia; Business Development
Manager, Affiliated Information Resources, Inc.
Mark Rottler, Indianapolis, IN; Owner/President, SLM Industries
LLC
Mark R. Ritschard, Loveland, CO; Director of Computing, Colorado
State University
Mark Rushing, Seattle, WA; IT Consultant, Orbis Lumen
Mark Salisbury, Chelmsford, Ma; Senior Software Engineer,
Salisbury and Salisbury Inc.
Mark Schafer, Defiance, ohio; student, NSCC
Mark Schweikle, Gilbert, Arizona; Student, Byte Rain Development
Corporation
Mark Shepard, Dallas, TX; Software Engineer, Consultant
Mark Stevenson, Indianapolis, IN; Small businesss owner, n/a
Mark Stock, Ann Arbor, MI; PhD student, U of Michigan
Mark Stratman, Hoffman Estates, IL; Systems Administrator and
Software Developer, EMC Capital Management
Mark Swayne, Portland, OR; Computer Programmer, n/a
Mark Symonds, Fountain Valley, CA; Systems Administrator, n/a
Mark Tucker, Clifton Park, NY; Unix Systems Consultant, n/a
Mark Wagner, Fremont, California; Database Administrator, IBM/
CrossWorlds
Mark W. Alexander, Orlando, FL; Consumer, n/a
Mark Whiteford, BaltiMore, MD; Network Administrator, WW PCTechs
Mark wilson, Ithaca, NY; Student, Cornell University
Marlene Morley, Cleburne, Texas; Linux Administrator, Hypernet
Communications
Marshall D. Lewis, Charlottesville, VA; Senior Programmer,
ScholarOne Inc.
Martin Middleton, Bridgewater, MA; Release Engineer, n/a
Martin Slade, Pasadena, CA; Scientist, non-profit research lab
Marty Altman, Orlando, Florida; Senior Scientist, SAIC
Marty Paul Combs, San Francisco, CA; Systems Administrator,
Techprose
Mary Pat McDonald, Phoenix, Arizona; Educator, Cartwright School
District
Mary Peterson Hartzler, Alexandria, Virginia; self employed, n/a
Matt Curtis, American Fork, UT; Software Engineer, Clearst0ne
Corporation
Matt Dew, Denver, CO; Hardware Engineer, SEAKR Engineering
Matt Graha
M, Lansing,
MI; QA/Testing Lead, Group InfoTech
Matt Hell
Man, Urbandale, Iowa; Network Security Analyst, Principal
Financial Group
Matthew A.
Miller, Ahahei
M, California; Software Engineer, The van der Roest Group
Matthew Barr, New York, NY; Syste
Ms Ad
Ministrator, Barr Consulting
Matthew Bogosian, San Francisco, California; Software Engineer,
Grand Central Communications
Matthew Bohnsack, Ames, Iowa; Software Developer, bohnsack.com
Matthew Caughron, Omaha, Nebraska; Co-Founder, Proteron LLC
Matthew Conway, Cambridge, Massachusetts; Senior Software
Engineer, i2 Technolgies Inc.
Matthew C. Rees, Greenville, Rhode Island; Computer Programmer,
n/a
Matthew Goheen, Rochester, NY; Consultant, MRRC Consulting Corp.
Matthew Hornyak, Pittsburgh, PA; CTO, rTheory
Matthew Hudson, Seattle, WA; Network Security Engineer, AT&T
Wireless
Matthew Jenove, West New York, New Jersey; Software Engineer, n/
a
Matthew J. Evans, Espanola, New Mexico; Owner/Operator, Oasis
CyberCafe
Matthew Jones, Fort Wayne, Indiana; Macintosh computer lab
Administrator, Taylor University Fort Wayne
Matthew J. Turk, Grand Rapids, Michigan; Student, Northwestern
University (IL)
Matthew Kerr, Walnut Creek, CA; Student, Saint Mary's College of
California
Matthew Luu, Santa Ana, CA; Helpdesk Administrator, Goodwill
Industries of OC
Matthew Manor, Valley Stream, New York; President, Kingmanor
Enterprises
Matthew McNeil, Pocatello, ID; Student, Idaho State University
Matthew Patton, Springfield, VA; Network Security Officer, VGS
Matthew Poor, Englewood, FL; Citizen, Venice Auction
Matthew Radway, Rapid City, SD; Student, South Dakota School of
Mines and Technology
Matthew Ray, Austin, Texas; Software Developer, 360 Commerce
Matthew R Burack, Ames, IA; Software Developer, Computer Data
Services
Matthew Reed, Seattle, Washington; Student, n/a
Matthew Ross, Ephrata, Washington; Founder, nineinchnerds.org
Matthew Sachs, Merrick, NY; Lead Developer and Project Manager,
Zevils Software
Matthew Sexton, Kirkland, WA; Design Engineer, n/a
Matthew Strait, Oak Park, IL; Student, Carleton College
Matthew Toia, Washington Crossing, PA; Student, n/a
Matt Krabbenhoft, Austin, Texas; Graphic Designer, n/a
Matt Leonard, Denver, CO; Consultant, n/a
Matt Lewis, Sacramento, CA; Network Security Manager, WINfirst
Matt Oquist, Nashua, NH; Software Engineer, Compaq Computer
Corporation
Matt Potosnak, New York, New York; Programmer, RiskMetrics Group
Matt Pujol, Fort Collins, Colorado; Electrical Engineer, IEEE
Matt Schmill, Amherst, MA; Research Assistant, University of
Massachusetts
Matt Vanderveer, Charlottesville, VA; Systems Administrator,
Boxer Learning
Matt Welsh, Berkeley, CA; Graduate student researcher, UC
Berkeley Computer Science Division
Maureen Duffy, Troy, NY; Student, Rensselaer Polytechnic
Institute
Maurice P., Buckfield, ME; Technology Manager, MSAD #39
Max Bell, Portland, Oregon; Senior Systems Analyst, Max Bell
Consulting
Maxx Christopher Lobo, San Jose, CA; Network Architect,
ArrayComm, Inc.
Mayer Ilovitz, New York, NY; AVP, Citibank
Melissa Grams, Appleton, WI; Systems Analyst, Airadigm
Communications
Melissa Woo, Champaign, IL; Research Programmer, University of
Illinois at Urbana-Champaign
Meredith Dixon, Mannington, WV; Webmaster, Raven Days
Meryl Newbern, New York, NY; Consultant, n/a
Micah Cox, Kingston, TN; Lead Programmer, Ethereal Software
Micah John Cowan, Mountain View, CA; Software Engineer,
Transmeta Corporation
Michael A. DeLuca II, Hatboro, PA; Web Designer, Psidonia.org
Michael A. Jaskowiak, Centreville, VA; n/a
Michael Alatorre, Los Angeles, CA; EIS Liaison Analyst, Cedars-
Sinai Health System
[[Page 28336]]
Michael A. McLean, Raleigh, NC; QA Testing Engineer, Red Hat
Inc.
Michael Amster, Los Angeles, CA; Chief Technology Officer,
WebEasy
Michael A. Raymond, Eagan, MN; Software Engineer, SGI
Michael A. Schupp, New York, NY; Senior Developer/Systems
Architect, Crosslinks Systems
Michael Barnes, San Mateo, CA; Software Engineer, Cisco Systems
Michael Batchelder, Redwood City, CA; Software Engineer,
Counterpane Internet Security, Inc.
Michael Battle, Phoenix, AZ; Software Engineer, Motorola
Semiconductor Products Sector
Michael Bell, Pewaukee, WI; Programmer, n/a
Michael Blakeley, Foster City, CA; Internet consultant, self-
employed
Michael Bolen, Mishawaka, Indiana; Field Enginner, Service
Express, Inc.
Michael Bourgon, Fort Worth, TX; Database Administrator, n/a
Michael Brauwerman, Chevy Chase, FiD; Software Engineer, OPNET
Technologies
Michael Buice, Chicago, Illinois; Graduate Student, University
of Chicago
Michael Challis, Oklahoma City, OK; President, NeoDigita
Michael Charrier, Colorado Springs, Colorado; President,
Charrier Consulting International
Michael Cope, Richmond, VA; Photographer, Michael Cope
Photography
Michael Creighton, St. Louis, MO; Interactive Designer, Omni
Creative Group
Michael C. Schultheiss, Indianapolis, IN; CEO / CIO, Amellus
Enterprises, Ltd.
Michael D. Barry, Baltimore, FiD; Application Developer, n/a
Michael Desjardins, Gray, ME/ Computer Programmer, n/a
Michael Dill, San Jose, CA; Systems Administrator, Novellus
Systems
Michael Dinsmore, Gaithersburg, MID; MacGenius, Apple
Michael E Brown, Pflugerville, TX; Software Engineer, Dell
Computer Corp
Michael Fairchild, Ventura, CA; n/a
Michael Fair, Los Angeles; Member, linuxatlax.org
Michael F. Klein, Palo Alto, CA; Engineer and Domain
Administrator, n/a
Michael Fox, Seattle, Washington; Software Engineer, Self
Michael Galloway, Lenoir City, TN; System Engineer, Oak Ridge
National Lab
Michael Granger, Lakewood, CO; Architect, The FaerieMUD
Consortium
Michael Guymon, New York, NY; Systems Architect, Igicom
Michael Hagedorn, Houston, Tx; Sr Software Engineer, Pentasafe,
Inc
Michael Heyes, Fort Wayne, Indiana; Electrical Engineer, Lincoln
Foodseervice Products
Michael Hnatko, Syracuse, NY; Student, Syracuse University
Michael Hollander, San Francisco, CA; Software Engineer,
Intraspect Software
Michael Houda, Soquel, CA; Senior Engineering Technician, CSJ/
DPW/D&C
Michael Hrubik, Norton, Ohio; Student, The University of Akron
Michael Isaac Jones, Columbus, Ohio; Computer Science Student,
The Ohio State University
Michael Jennings, Portland, OR; Business Owner, Futurepower(R)
Computer Systems
Michael J. Manning, London, Ohio; Software Engineer, n/a
Michael J Myers, Manchester, PA; Sr Applications Developer, PA
State Employee's Retirement System
Michael J. O'Donnell, Chicago, Illinois; Professor in Computer
Science, The University of Chicago
Michael Jones, Ruckersville, VA; Java Programmer, Boxerlearning
Michael J. Porter, Newark, DE; Senior Systems Programmer,
University of Delaware
Michael King, Wheeling, Illinois; QA Software Tester, Zebra
Technologies
Michael Klein, Hermosa Beach, CA; Chief Architect, Greatmark
Software
Michael Komarnitsky, Boulder, CO; President, Komar Consulting
Group
Michael Kriss, Naperville, Illinois; System Administrator, n/a
Michael L. Broggy, New York, NY; System Analyst, New York Times
Michael Lee, Phoenix, Arizona; Cell Biologist, Environomics
Southwest
Michael Lewis, Fort Collins, Colorado; CEO, NicheStaffing
Michael Logue, Asheville, NC; Business Owner (Partner), Earth
Guild
Michael Lucas, Saint clair Shores, MI; Consultant, Great Lakes
Technologies Group
Michael McConnell, Edina, Minnesota; Chief Architect, http://
info-sapient.sourceforge.net
Michael McCray, San Bernardino, CA; Computer Technician, San
Bernardino Medical Group
Michael McGonagle, Chicago, Illinois; Owner,
FoundSoundRealizations
Michael McHenry, Long Beach, CA; Consultant, Rossum Technologies
Michael Mirande, Dufur, OR; Videographer, Self
Michael Monasco, Minneapolis, Minnesota; President, Cycle
Software Services
Michael Morrison, San Diego, Ca.; Software Engineer, Stonefly
Networks
Michael O'Neill, Holden, MA; n/a
Michael O'Toole, San Jose, Ca; Engineering Director, n/a
Michael Owens, Santa Fe, New Mexico; Systems Analyst, State of
New Mexico
Michael Parker, Los Angeles, CA; Software Architect, n/a
Michael Peay, Murrieta, CA; IT Manager, RedZone Interactive
Michael Percy, San Ramon, CA; Software Engineer, Portera Systems
Michael P McGill, Bethesda, MD; Director of Software
Development, HealthASPex Inc.
Michael Poole, Reston, Virginia; Design Engineer, n/a
Michael Remski, Merrimack, NH; Principal Software Engineer, n/a
Michael R. Jinks, Chicago, Illinois; Unix Systems Administrator,
James Franck Institute
Michael Roberts, Bloomington, Indiana; Owner, Vivtek http://
www.vivtek.com
Michael Roman, Ithaca, NY; Sr Systems Analyst, Cornell
University
Michael Sandford, Jacksonville, Florida; Student, University of
North Florida
Michael Shiplett, Ann Arbor, MI; Senior Software Developer,
Cisco Systems
Michael Sierchio, San Francisco, California; Information
Security Consultant, Tenebras, LLC
Michael Skora, Ann Arbor, MI; Web Master, University of Michigan
Michael Spencer Jr., Council Bluffs, Iowa; Programmer/Analyst,
Celebrity Personnel
Michael S. Scaramella, Esq., Cherry Hill, NJ; Senior Partner,
Scaramelia & Hoofnagle
Michael Tesch, Minneapolis, MN; Software Engineer, Independent
Contractor
Michael Tomkins, Kingman, AZ; Consultant, VMSupport
Michael T. Rankin, Walker Valley, NY; Software Support Manager,
n/a
Michael T. Scheidler, Greentown, IN; Unix/NT System
Administrator, Delphi Automotive Systems
Michael Warnock, San Francisco, California; Artificial Life
Programmer, InOrbit Entertainment Inc.
Michael Westcoat, San Francisco, CA; Software Engineer, n/a
Michael Wimpee, Olympia, Washington; Student, Whitman College
Michael W. Shaffer, Palo Alto, California; Network and Security
Administrator, Agilent Technologies
Michelangelo Grigni, Atlanta, GA; Associate Professor, Emory
University
Michelle Arden, Palo Alto, CA; Consultant, Arden Consulting
Michelle Klein-Hass, Van Nuys, CA; Citizen of the United States
of America, n/a
Mignon Belongie, Redwood City, CA; Software Engineer and co-
founder, Digital Persona, Inc.
Mike Cathey, Collegedale, TN; Network Administrator, RTC
Internet DBA Catt.com
Mike Dean, Cleveland, OH; Programmer, NBD, Inc.
Mike Doherty, Cleveland, OH; Self, Self
Mike Grello, Gaston, South Carolina; Principal Programmer,
MaranaTha Software
Mike Heath, Provo, UT; Software Developer, Terrapin Technologies
Mike Hokenson, Green Bay, WI; Systems Admin, DCT Technologies
Mike Lundy, San Jose, CA; Founder, Leland High School Linux/BSD
Club
Mike Schiller, Edgewater, MID; Electrical Engineer/Embedded
Programmer, n/a
Mike Schiraldi, Ashburn, VA; Research Scientist, VeriSign
Mike Shupp, Los Angeles, California; grad student, Cal State
University
Mike Simpson, Atlanta, Georgia; Senior Technical Architect, Abel
Solutions
Mike Vondrasek, Fort Worth, TX; Senior Windows Engineer,
CitiGroup
Mike Wexler, Santa Clara, CA; CTO, TIAS.COM
Mike Whitney, Austin, TX; Sr. Systems Analyst/Programmer,
Motorola
Miles Pickering, San Francisco, CA; Owner, 4by6.com
Milind Rao, Atlanta, GA; Software Architect, Brickstream
Mingyan Bao, Fort Collins, CO; Software Engineer, n/a
Miron W. Neal III, Portland, OR; Instructor, Portland Community
College
[[Page 28337]]
Mitch Lee, San Francisco, CA; Software Engineer, unemployed
M. Jamie Hejduk, Lexington Park, Maryland; Network Admin,
www.memorabledvds.com
M. Lisa Colvin, Nederland, Colorado; Disabled, Concerned
individual
M.L. McCauley, Dallas, Texas; President, Mtech Services
Molly Tomlinson, Somerville, MA; Consultant, PeaceGeeks
Mona T Magee, Tallahassee, Florida; State Worker, n/a
Morgan Collins, Yakima, WA; Owner, Morcant Software
Moses Lei, Falls Church, VA; Student, Thomas Jefferson High
School for Science and Technology, Alexandria, VA
Mukesh Agrawal, Pittsburgh, PA; Graduate Student, Carnegie
Mellon University
Nadia Pervez, Goleta, CA; Graduate Student, EE/CS, UCSB
Najati Imam, Lexington, Kentucky; Masters Student, University of
Kentucky
Nancy Goroff Whitney, East Setauket, NY; Assistant Professor,
SUNY Stony Brook
Nancy Lehrer, Thousand Oaks, CA; Software Architect, self
employed
Nasser Salim, Albuquerque, New Mexico; Systems Administrator,
Albuquerque High Performance Computing Center
Nate Fichthorn, Nokesville, Virginia; Student, n/a
Nate Sammons, Denver, CO; Senior Consultant, BEA Systems
Nathan Bargmann, Bremen, Kansas; Lead Electronics Technician,
Class A, Union Pacific Railroad
Nathan Black, Madison, WI; Consultant
Nathan Clegg, San Diego, CA; Software Engineer, MUSICMATCH
Nathan Cohick, Quartz Hill, California; Design Engineer,
(Advanced Bionics) Private Consultant
Nathan Currier, Los Alamos, NM; Graduate Research Assistant,
University of California
Nathan Egge, Austin, TX; Software Developer, Trilogy Software
Nathan Feltch, Provo, UT; Software Analyst, Dentrix Dental
Systems Inc.
Nathaniel Davis, Chicago, IL; Graphic Designer, The Creative
Group
Nathaniel Gray, Pasadena, CA; Graduate Student, California
Institute of Technology
Nathan Kunkee, Rolla, MO; Student, University of Missouri-Rolla
Nathan Myers, Placerville, CA; Software Engineer, n/a
Nathan Neulinger, Rolla, MO; Systems Administrator, University
of Missouri--;Rolla
Nathan O'Meara, Ravenna, OH; Student, SSCT
Nathan Paul Simons, Ridgecrest, California; Owner, Hard Core
Hackers
Nathan Roach, San Antonio, Texas; Product Manager, small
business
Nathan T. Spillson, Ann Arbor, Michigan; Principal, Innovative
Process Solutions
Nathan W. Labadie, Detroit, MI; Sr. Security Specialist, Wayne
State University
Neal J. Murphy, Orinda, CA; L.Ac., n/a
Neal Rauhauser, Omaha, Nebraska; Engineer, American Relay
Neal R. Haslam, Ashfield, PA; Telecommunications Engineer,
electric utility
Neal Young, Cambridge, MA; Senior Research Scientist, n/a
Neeraj Tulsian, Austin, Texas; n/a
Neil D. Rosenthal, Schenectady, New York; Consultant,
Applications Programming, James McGuinness & Associates, Inc.
Nell Drumm, Polk City, Iowa; Student, North Polk Community
School District
Neil Getker, Cincinnati, OH; Network Administrator, HR ProFile
Neill Haggard, Cary, North Carolina; Consultant, Self employed
Nevin Lyne, Rochester, FiN; Sr Network Administramor, Gippy's
Internet Solutions
Nicholas Allen, Columbus, OH; Computer Engineering Student, Ohio
State University
Nicholas Bender, Norton, NA; Quantitative Analyst, n/a
Nicholas Jones, Chicago, IL; Unix Administrator/Network Tech,
DuckSystems/SignalCorp
Nicholas Paulick, Oshkosh, WI; Mechanical Engineer, n/a
Nick Fankhauser, Liberty, IN; Programmer, Doxpop
Nick Grossman, New York, NY; Software Developer, n/a
Nick Ienatsch, Orinda, CA; Retired, State of California
Nick K. Aghazarian, Stockton, CA; Windows Software Engineer, n/a
Nick Scott, Arlington, VA; Engineer, Veritect
Nick Traxler, West Lafayette, Indiana; Student, Purdue
University
Nick Wesselman, Milwaukee, WI; Consultant, Digital visions
Niels Provos, Ann Arbor, Michigan; Ph.D. candidate, CITI,
University of Michigan
Nigel Gamble, Mountain View, CA; Operating System Software
Engineer, Afara Websystems
Nigel Olding, Folsom, CA; Consultant, CDI
Nino R. Pereira, Springfield, VA; Sr. Scientist, Ecopulse
Nitin Borwankar, Oakland, CA; President and CEO, Borwankar
Research Inc.
Noah Gibbs, Mountain View, CA; Software Engineer, Palm, Inc
Noel Holshouser, Plain Dealing, LA; Independent Consultant, n/a
Nolan Leake, San Francisco, CA; Software Engineer, Radik
Software
Norbert Roma, Pittsburgh, PA; Research Scientist, n/a
Norman Yamada, New York, NY; Independent software developer, n/a
Ocie Mitchell, Pasadena, California; Software Engineer, Paracel
Oliver Azevedo Barnes, Brooklyn, NY; Web Developer, self-
employed
Oliver Stacey, Berkeley, California; Software Engineer, n/a
Pablo Virgo, Middletown, Maryland; Student Tech Support, Earlham
College
Pamela Eachus, Manchester, New Hampshire; IS Operations Analyst,
Syndicated Services
Pamela Jasins, Ann Arbor, Michigan; GIS Technician, Washtenaw
County Government
Paonia J. Ezrine, Chelmsford, MA; Sr. Unix Consultant, n/a
Partha Narasimhan, Santa Clara, CA; Network Architect, n/a
Pat Augustine, Jacksonville, FL; Systems Administrator, n/a
Patricia A. Rupe, Ormond Beach, FL; Senior Applications Analyst,
n/a
Patrick B. Gardner, Aiken, South Carolina; Owner, Offdwall
Computers
Patrick Corrigan, Tigard, Oregon; n/a
Patrick Finnegan, West Lafayette, IN; Student, Purdue University
Patrick Insko, Roscoe, Illinois; Principal, Insko Computer
Consulting Group
Patrick J. LoPresti, Cambridge, NA; Founder, Curl Corporation
Patrick J. Santucci, Dayton, OH; Control Systems Programmer,
MCSi
Patrick McDonald, Boston, MA; President, Heed Technology
Patrick McMahon, Newark, DE; Computer Information Technology
Associate III, University of Delaware
Patrick Moon, Somerville, Massachusetts; Substitute Teacher,
Somerville High School
Patrick Nichols, Norfolk, VA; Web Developer, n/a
Patrick Scannell, Fairbanks, AK; Network Manager, USFWS
Paul Belt, Franklin, MA; Networking Consultant, Self
Paul Blair, Bluffton, SC; Software Development Manager,
Databuilt
Paul Bort, Euclid, Ohio; Systems Engineer, TMW Systems
Paul Bradley, Portland, Oregon; Technology Specialist, n/a
Paul Campbell, Seattle, WA; Tech Consultant, n/a
Paul Cantrell, St. Paul, MN; Software Engineer, Retek Inc.
Paul DeStefano, Beaverton, Oregon; Systems Analyist, n/a
Paul D. Robertson, Alexandria, Virginia; Director of Risk
Assessment, n/a
Paul Eberle, New Prague, MN; Software Developer, BlueCross
BlueShield of MN
Paul Felts, Ventura, CA; Network Administrator, CSF
Paul Forbes, Sunnyvale, CA; Network Engineer, Trimble
Paul G. Allen, El Cajon, CA; Engineering Consultant, Random
Logic Consulting Services
Paul Gardner, Carlsbad, CA; Software Engineer, n/a
Paul G. Ennis, Chapel Hill, NC; Attorney at Law, n/a
Paul Herzog, Flanders, New Jersey; President, Gapware Systems
Paul H. Lewis, Aiken, South Carolina; Government Documents
Librarian, University of S. Carolina--;Aiken
Paul Hoehne, Reston, VA; Manager, T4 Consulting Group
Paul Howard, St. Joseph, Michigan; Sole Proprietor, Tomcat
Robotics
Paul Keusemann, Savage, MN; Software Engineer, n/a
Paul Levitt, Brookline, MA; Space Systems Engineer, n/a
Paul Lorenz, Rochester, NY; Software Engineer, NetSetGo Inc.
Paul Lupa, Austin, TX; Sr. Systems Analyst, Motorola
Paul Lussier, Lunenburg, MA; Senior Network/Systems
Administrator, Mission Critical Linux
Paul M. Dubuc, Columbus, OH; Software Engineer, CAS
Paul Miller, Kalamazoo, MI; Systems Analyst, Bary County
Telephone
[[Page 28338]]
Paul Miller, Palm Bay, Fla.; Microsoft Support Tech, graphic-
mac.com
Paul Notley, San Francisco, California; QA Engineer, Isomorphic
Software
Paulo Raffaelli, San Francisco, CA; Principal Engineer,
ImagiWorks, Inc.
Paul Rupe, Chapel Hill, NC; Software developer and computer
hobbyist, n/a
Paul Schreiber, Cupertino, CA; Software Engineer, Apple Computer
Inc.
Paul Stroud, Raleigh, NC; Software Engineer, IBM
Paul Walmsley, Boulder, Colorado; n/a
Paul Z. Myers, Morris, MN; Professor, University of Minnesota,
Morris
Peter A. Schwenk, Newark, Delaware; CITA-3, Systems
Administrator, University of Delaware
Peter Bakke, Portland, Oregon; Webmaster, Independent
Peter Benjamin, Santa Monica, CA; Consulting Scientist, n/a
Peter Boothe, Laguna Beach, CA; Software Developer, Gordian Inc.
Peter DeWeese, Fairfax, VA; Developer Support Engineer,
webMethods
Peter F. Hollings, Atlanta, Georgia; Software Consultant, n/a
Peter Flugstad, Iowa City, Iowa; System Architect, Icon Labs
Peter Frischknecht, Clemson, SC; Net Admin, Empowering Solutions
Inc
Peter Gephardt, Columbus, Ohio; Engineer, n/a
Peter Havens, Dever, CO; Senior Engineer, Level 3 Communications
Peter J Scordamaglia, Holiday, FL; Senior Systems Engineer/
Developer, Pegasus TransTech
Peter Kasting, Santa Barbara, CA; Software Development Engineer,
Green Hills Software, Inc.
Peter Luichinger, Fort Wayne, Indiana; Software Engineer, TEK
Interactive Group
Peter Marreck, Greenwich, CT; Software Developer, FactSet
Peter Rinehart, Jupiter, FL; student of computer science,
Cornell University
Peter Schneider, Nashville, TN; Software Engineer, n/a
Peter Tagtmeyer, Hamilton, NY; Librarian, Colgate University
Peter Vessenes, Cambridge, HA; President, Ybos Corp
Pete Smith, New Smyrna Beach, Florida; Electronics Technician,
Bellsouth
Pete Toscano, Fairfax, VA; Systems Research Manager, n/a
Petre Scheie, St. Louis Park, MN; Unix System Administrator,
Nextel Partners
Petr Vicherek, Richester Hills, MI; Software Engineer, Eaton
Corporation
Phil Harris, Reston, Virginia; System Administrator, Cable &
Wireless
Philip Brogden, Tijeras, New Mexico; Senior Engineer, CWS
Philip Brown, Lakewood, California; System Administrator,
bolthole.com
Philip Budne, Arlington, MA; Consultant, n/a
Philip Hilton, Farmington, Maine; Student, University of Maine
at Farmington
Philip Sagstetter, Littleton, Colorado; Software Developer,
Lockheed Martin Corporation, Astronautics Company
Phillip Cox, Mesa, AZ; Network Engineer, Charles Schwab
Phillip Jones, Raleigh, NC; Java Devloper (Contractor), IBM
Phillip Karlsson, New York, NY; General Partner, Goats, LLC
Phillip Mocek, Seattle, WA; Software Engineer, Internap Network
Services
Phillip Pollard, Lansdale, PA; Programmer, Diversified
Consulting
Phil True, M.S., Eagan, MN; System Architect, n/a
P. Ryan Bergman, Des Moines, Iowa; Web Developer, GeoLearning
P. T. Kornman, Notasulga, AL; Dr., Central AL Comm College
P T Withington, Plymouth, MA; Software Journeyman, callitrope
Rachel Slatkin, Atlanta, Georgia; Electrical Engineer, n/a
Rafal Boni, Stoughton, MA; Software Engineer, n/a
Ralph Stanley, Austin, Texas; Probe Test Engineering, Motorola
Ramon R. Aviles, Montgomery, IL; Private citizen, n/a
Randall Campbell, Fort Collins, Colorado; Software Engineer,
Hewlett-Packard
Randall J. Parr, Seattle, WA; owner, Temporal Arts
Randall W Smock, Arvada, Colorado; Hardware/Software Systems
Engineer, Storagetek
Randolph H. Kramer, Bethlehem, Pa; Consultant, n/a
Randolph S. Kahle, Tucson, AZ; President, Kahle Associates, LLC
Randy Froc, Pepperell, MA; Software Engineer, Curl Corporation
Randy Tidd, McLean, VA; Software Engineer and Private Investor,
(Self)
Raylynn Knight, Acworth, GA; Sr. Software Design Engineer,
ChoicePoint
Ray McVay, Arlington, TX; Sr. Software Engineering Specialist,
Northrop Grumman Information Technology
Raymond Ferguson, Madison, WI; NOC-Analyst, Berbee
Raymond Kocian, Ridgefield, CT; Research Scientist,
Schlumberger-Doll Research
Raymond Leonard Haines, Columbus, Ohio; Support Analyst, OCLC
Ray Tayek, Lakewood, California; programmer, nanosoft
Rebecca Andrews, San Francisco, California; consultant, n/a
Rebecca Frankel, Boston, MA; Software Engineer, MIT Artificial
Intelligence Lab
Rebecca Sobol, Boulder, Colorado; Editor, LWN.net
Red Lloyd, San Antonio, Texas; Senior System Administrator,
Veridian
Rene Fromhold-Treu, Mountain View, CA; Consultant, Eike
Consulting
Renu Bora, Los Angeles, California; CFO, Linux Public
Broadcasting Network
Renwick Preston, Houston, Texas; Control Systems Specialist,
S&B Engineers & Constructors, LTD
Reuben Partida, Pasadena, CA; Specialist, Verizon Advanced
Services
Reuven Gevaryahu, Philadelphia, PA; Student, University of
Pennsylvania
Rev. Nicholas R. Robbins, Bay City, MI; ,
Richard A. Eiken, Kansas City, Missouri; PC Consultant, Eiken
Consulting
Richard A. Milewski, Sunnyvale, California; CTO, RamPage.Net
Richard Blumberg, Cincinnati, OH; Proprietor, Wm. Blake
Fabricators
Richard Brennan, Lockport, New York; n/a
Richard Bullington-McGuire, Arlington, VA; Managing Partner, PKR
Internet
Richard Clark, Warren, MI; Field Service Engineer, MBM Computer
System Solutions
Richard Congdon, Rockport, MA; Senior Programmer, Harvard
University
Richard Copeland, Marietta, Georgia; Senior Systems Engineer, n/
a
Richard D. Cravens, Columbia, MO; , Independent Consultant
Richard Forno, Arlington, VA; Chief Technology Officer,
Shadowlogic
Richard G. Misenheimer, Los Angeles, CA; Senior Engineering
Consultant, n/a
Richard Harris, Pittsburgh, PA; Director of Technology, Anexinet
Richard Jason Armstrong, Phoenix, Arizona; Network Systems
Engineer, Technica Corporation
Richard Johnson, Kansas City, MO; President, Northland Computer
Services
Richard Kelsch, Lakeside, California; Owner, RK Internet
Technologies
Richard Lesh, St. Peters, MO; President, Compass Genomics
Richard Linville, Spruce Pine, NC; Distance Education
Technician, Mayland CC
Richard M. Atwater, Indianapolis, IN; Software Engineer, Charles
E. Hill & Associates
Richard Moore, Newark, California; President, DACS Software,
Inc.
Richard Murphy, Las Cruces, New Mexico; Mechanical Engineer,
HTSI, NASA JSC White Sands Test Facility
Richard Nicoletti, Southborough, MA; Software Engineer,
Millennium Pharmaceuticals
Richard Plevin, Brattleboro, Vermont; President, Richard Plevin
and Associates
Richard Ross, Oxnard, CA; Lieutenant Commander, United States
Navy
Richard Sawey, San Carlos, CA; Citizen, USA
Richard Schumer, San Francisco, California; Auditor, Curtis
Hotel
Richard Tietjen, Guilford, CT; Publishing Technologist, McGraw-
Hill
Richard W. Ernst, San Diego, CA; n/a
Richard W. Lipp, Overland Park, KS; Information Systems Manager,
List & Clark Company
Richard Wynne, Raleigh, NC; System Administrator, AT&T
Rich Coe, Milwaukee, WI; Software Engineer, n/a
Rich Fuchs, Burlingame, CA; systems programmer, Research
Libraries Group
Rich Gordley, Des Moines, Iowa; Lead Programmer, Diversified
Software Technology
Rich Irvine, Minneapolis, Minnesota; SysAdmin/Senior Systems
Consultant, ArchWing Innovatons LLC
Rick Bradley, Harlingen, Texas; CTO, EastCore
Rick Buford, Columbia, MO; System Administrator, CARFAX
Rick Frankel, New York, New York; President, cyberCode
consulting inc
Rick Richardson, Wayzata, MN; Dad, Richardson Family
[[Page 28339]]
Rick Romero, Waukesha, WI; IT Manager, Valeo
Rick Thompson, Claremore, Oklahoma; Developer, aeonblue
Rick Wittstruck, Lincoln, NE; Computer Programmer, self-employed
Ricky Musci, Berkeley, California; Systems Administrator, The
Nautilus Institute
Rik Farrow, Sedona, Arizona; Security Consultant
RL ``Bob'' Morgan, Seattle, WA; Senior Technology
Architect, University of Washington
R.L.Dempsey, Carrollton, Texas; unemployed, concerned user
Roberta A. Kennedy, St. Augustine, FL; Applications Specialist,
n/a
Robert A. Cooper, Katy, Texas; Individual
Robert A. Glenn, New York, NY; Private citizen
Robert A. Jacobs, Omaha, Nebraska; Computer Analyst, Northrup
Grumman Information Technology
Robert A Salzman Jr., Beaverton, OR; Sr. Member of Technical
Staff, Responsys
Robert Bercik, Washington DC; Student, Computer Science,
Georgetown University
Robert Bingham, Westerville, OH; Student, Ohio State University
Robert Brown, Northfield, Minnesota; Chair, Northfield Citizens
Online
Robert Brown, Northfield, MN; Chair, Northfield Citizens Online
Robert Brown, Portland, Oregon; Network Manager, US District
Court of Oregon
Robert Bruggner, Notre Dame, Indiana; Student of CSE, University
of Notre Dame
Robert Burcham, Kansas City, MO; Software Engineer, Sprint PCS
Robert Burke, Santa Monica, California; Programmer, University
of California, Los Angeles
Robert Bushman, Chandler, Arizona; Senior Software Engineer,
Apollo Group
Robert B. Wamble II, Ramona, CA; Software Engineer, SeaSpace
Corporation
Robert Chastain, North Plainfield, NJ; Senior Analyst, NA
Robert Cober, Scottsdale, Arizona; Lead Developer, Scottsdale
Insurance
Robert Coli, San Francisco, CA; n/a
Robert Dodier, Boulder, Colorado; Programmer, Interested Citizen
Robert Eden, Cedar Hill, TX; System Administrator, n/a
Robert E. Gomez, Highland, IN; Senior Technical Analyst,
Neurosource
Robert Elshire, Urbana, IL; Director, Illinois Genetic Marker
Center
Robert Fowler, Miami, FL; Network Administrator MCP, n/a
Robert Freeborn, Hurst, TX; System Administrator, n/a
Robert Gentner, Mesa, Arizona; Systems Programmer, Avnet
Robert Grunloh, Tucson, Arizona; Support Systems Analyst,
University of Arizona
Robert Guthrie, Little Rock, Arkansas; Software Engineer, Acxiom
Corp.
Robert Helmer, El Cerrito, CA; Systems Administrator, Namodn
Robert Heyen, Boynton Beach, FL; Strategic Consultant, The
Network Institute (www.tneti.com)
Robert J. Berger, Saratoga, CA; Chairman and Founder,
UltraDevices
Robert J Brenneman, Poughkeepsie, NY; Software Engineer, IBM
Robert J. Wygand, III, San Francisco, CA; Founding Engineer,
FileFish Inc.
Robert Kelman, Long Beach, CA; Consultant, Deloitte Consulting
Robert Kennedy, Austin, TX; Systems Analyst, The University of
Texas at Austin
Robert Klein Tribit, Lindenwold, New Jersey; Systems
Administrator, Mobility Technologies
Robert Langer, Two Rivers, WI; Engineer, Dramm Corp
Robert Lasch, Trevor, WI; Software Engineer, n/a
Robert Leary, Atlanta, GA; Internet Marketing Manager, n/a
Robert Leland, Arlington, Virginia; Sr. Software Engineer,
Free2Create
Robert Love, Meadville, Pa; Systems Administrator, Stargate
Industries
Robert Lucas Marshall, Santa Clara, Utah; Webmaster, Developer
Shed
Robert Lusian, Spokane, WA; Software Engineer, n/a
Robert Melton, Arlington, VA; Software Developer, Metro DC
Police Department
Robert Mena, Downey, CA; President, Quadratel Systems
Robert Minvielle, Notre Dame, IN; Electronics Programmer
Specialist, University of Notre Dame
Robert Moeckel, East Wenatchee, WA; Track Manager, Pangborn Kart
Track
Robert Morris, Carrboro, NC; VP of Engineering, Eyetide Media
Robert Murawski, Lyndhurst, NJ; Graduate Student/Research
Assistant, Stevens Institute of Technology
Robert Nesius, Portland, Oregon; Systems Programmer, n/a
Roberto Rosario, Aguadilla, PR; Senior Integrator, Linux
Solutions of Puerto Rico
Robert Parnes, Mechanic Falls, ME; Author, consultant, n/a
Robert P. Booth, Rantoul, IL; Owner, Booth Systems Engineering
Robert P. Shaw, Cleveland, Ohio; Network Administrator,
Cronosys, LLC
Robert Ramsey, Iowa City, Iowa; IT Professional, Private citizen
Robert Riemersma, Holland, MI; Quality Process Technician,
Trans-Matic, Inc.
Robert S. Iacullo, Mountlake Terrace, WA; Software Test Analyst,
Self Employeed
Robert Simmons, Ventura, CA; Web Designer, McVey Design
Robert Spotswood, Houston, TX; Computer Consultant, Self-
Employed
Robert Werckmeister, Chicago, Illinois; Web Developer, Nuveen
Investments
Robert Winburn, Eminence, KY; Retired, US Govt, Web Sales
Robert W. Mielke, San Antonio, Texas; Project Manager, Rackspace
Managed Hosting.
Robert Woodraska, Sioux Falls, SD; IB Systems Administrator,
Precision Computer Systems
Rob Henerey, Williamsburg, MA; Web Developer, cogitowebworks.com
Robin Cook, San Antonio, Texas; Systems Engineer, Edgewood ISD
Robin Hopkins, Irvine, CA; Unix Systems Administrator, n/a
Robin Miller, Bradenton, Florida; Editor, Linux.com
Rob Rennier, Olney, IL; System Administzator, n/a
Rocky Marquiss, Gillette, Wyoming; Computer Programmer, Campbell
County Public Schools
Rod Martin, Springfield, IL; Owner, Network 23
Rod Nayfield, Denver, CO; Director, ``A Telecommunications
Company''
Rogan Hamby, Charlotte, NC; Assistant Manager, Public Library
Roger Fujii, Burke, VA; Software Engineer, N/A
Roger Humphrey, San Rafael, CA; Sr. Software Developer, OSI
Software
Roger K. Atkinson, San Diego, California; Sr. Operating Systems
Analyst, Cubic Corporation
Roger Partridge, West Chester, PA; software development manager;
member, IEEE
Roger Shaffer Jr., Chicago, IL; Electronics Engineering Student,
DeVry Institute of Technology
Roger West, Phoenix, AZ; Member, SourceForge
Roger Whitehead, Greenville, SC; Computer Engineering Student,
Clemson University
Ronald L. Chichester, Kingwood, TX; Adjunct Professor of Law,
South Texas College of Law
Ronald R. Gage, Saginaw, Michigan; Owner, Linux Network Services
(http://www.lns-saginaw.net)
Ron Golan, Los Angeles, California; Member, lula.org
Ron Hitchens, Lake Forest, CA; President, Ronsoft Technologies
Rory Louis Federico, Lemoore, CA; Personnel Supervisor
Accountant, US Navy
Ross Peterson, Missoula, Montana; President, Trilocal Inc.
Ross Youngblood, Chandler, Az; Applications Engineer, Credence
Systems Corporation
Roy James Milican, San Diego, CA; Network/System Administrator,
Anonymizer Inc.
Russell Hemati, Dallas, TX; Systems Engineer, Independent
Consultant
Russell Luzetski, Indianapolis, IN; Consultant, Praxis Solutions
Russell Stoneback, Austin, TX; Physicist, University of Texas at
Austin
Russ Urquhart, Plano, TX; Technical Writer, Multigen Paradigm,
Inc.
Rusty Carruth, Tempe, AZ; Staff Software Engineer, Schlumberger
T&T, Inc
Ruthann Sudman, Rochester, MN; A concerned computer-literate
U.S. citizen.
Ryan Boder, Columbus, Ohio; Student, Carnegie Mellon University
Ryan Breen, Durham, North Carolina; Director of Software
Engineering, Porivo Technologies
Ryan Gillespie, Newark, DE; Programmer, University of Delaware
Ryan Koga, Stanford, CA; Programmer, UCSD
Ryan Little, Augusta, GA; Training Developer, n/a
Ryan Osial, Rochester, NY; Student, Rochester Institute of
Technology
Ryan Smith, Nashville, TN; Creative Director, Monster Labs
Ryan Todd, Dallas, Texas; Network Administrator, EFO Holdings
[[Page 28340]]
Ryan Yoong, Wayzata, MN; Student, University of Minnesota
Sabrina L. Nelson, Castro Valley, CA; Freelance film/video
editor, n/a
Salvatore LaFata, Macomb Township, MI; Help Desk Coordinator,
EDS
Sam Denton, St. Louis, MO; Chief Systems Architect, WAN
Technologies
Sam Harrison aka Trey Harrison, Seattle, WA; Chief Software
Architect, Treyharrison.com
Sam Hill, Fort Worth, Texas; LAN Administrator, TCCD (http://
www.tccd.net/)
Sam Mertens, Bethesda, FID; Software Engineer, n/a
Sam Steingold, Boston, MA; Senior Analyst, Xchange Inc
Sam W. Bowman, Valencia, CA; Electrical Engineer, Medtronic
Minimed
Sam Wynn, Fort Worth, TX; Senior Embedded Software Engineer,
Lockheed Martin Aeronautics
Sandra L. Bartlett, Ann Arbor, MI; Adjunct Assistant Professor,
University of Michigan
Sanjay Linganna, Baltimore, MD; Quality Assurance Engineer,
eOriginal, Inc.
Sarah Barwig, Pasadena, California; Software Developer,
ArsDigita
Scott A. Clausen, Edgewood, WA; database programmer, n/a
Scott Ames, Corvallis, Oregon; Technical Support Representative,
n/a
Scott Baumann, San Francisco, CA; Creative Director, Heavy
Graphics
Scott Bell, Los Angeles, CA; Consumer, n/a
Scott Call, Santa Rosa, CA; Network Engineer
Scott Clark, Canton, MA; Principal Member of Technical Staff,
General Dynamics C4 Systems
Scott Disher, Overland Park, Kansas; Consultant, OnLine
Technical Solutions
Scott Dunbar, Kansas City, MO; Calibration Technician, Test
& Measurement, Inc.
Scott D. Webster, Bergenfield, NJ; Owner, Etc Services
Scott Dylewski, Ph.D., San Jose, CA; Hardware Development
Engineer, Agilent Technologies
Scott Francis, Murfreesboro, TN; Systems Administrator, Rum
Consortium
Scott Francis, North Hollywood, MO; Systems/Network Manager,
Tonos Entertainment
Scott Furman, Menlo Park, CA; Software Engineer, n/a
Scott J. Lopez, Chicago, IL; Unix System and Network Engineer,
n/a
Scott Lewis, Great Falls, Montana; Software Developer/Service
Technician, Davis Business Machines
Scott Lowe, Germantown, FiD; Director of Information Technology,
n/a
Scott Maxwell, Pasadena, CA; Software Developer, n/a
Scott M. Brylow, London, UK (US citizen living abroad);
Independent consultant (technology management)
Scott McMullen, Dripping Springs, Texas; n/a
Scott Meyer, St. Louis, Mo; Student, Fontbonne College
Scott Parish, Arma, KS; System Administrator, Pittsburg State
University
Scott Rachlinski, Baltimore, MID; Software Engineer,
Advertising.com
Scott Rockwell, San Jose, CA; Member, QOS, LLC
Scott R. Wilson, Ph.D., Corrales, New Mexico; Engineering
Manager, n/a
Scott Sesher, Raymore, MO; Systems Administrator, Sprint
Scott Thomason, East Troy, WI; Consultant, Interactive Business
Systems
Scott Wilder, Denver, CO; Lead Java Developer, Digital Reliance
Scott W. Starkey, Dayton, IN; Computer Support Technician,
Purdue University
Scott Yates, Des Moines, Iowa; Developer, Yatesframe.com
Sean Bruton, Dallas, Texas; Senior Engineer, NeoSpire
Sean McCune, Natrona Heights, PA; President, Red Hand Software
Sean M Lentner, Norwalk, CT; CEO, Lentner.com
Sean Perry, Palo Alto, CA; Student, UC Davis
Sean Reilly, Richmond, VA; Chief Technology Officer, Appgen
Personal Software
Sean Russell, Bend, OR; Sr. Software Developer, Germane Software
Sean T. Brann, Boston, MA; Principal, Bigcity Interactive
Sean T. Canty, Kansas City, MO; System Intergrator, Sunset
Systems
Sean Woods, Philadelphia, PA; Senior Network Engineer, The
Franklin Insitute
Seon Lee, Potomac Falls, VA; Software Engineer, n/a
Sergio Rey, La Mesa, CA; Associate Professor, Department of
Geography, San Diego State University
Seth Bjorn, Santa Ana, California; Network Engineer, Goodwill
Industries of Orange County
Seth Delackner, Brooklyn, N-Y; Programmer, Contractor
Seth Gordon, Boston, MA; Scientific Programmer, Whitehead
Institute
Seth Herstad, Urbana, Illinois; EE Graduate Student, University
of Illinois at Urbana-Champaign
Seth House, Salt Lake City, Utah; Student, University of Utah
Seth Lytle, Somerville, MA; programmer, independent contractor
Seth Russell, Ellensburg, WA; Student, Central Washington
University
Seth Taplin, Nederland, Colorado; Senior Software Engineer,
DigitalGlobe
Shane Kerr, Amsterdam, (US citizen, voting in Virginia); Senior
Database Software Engineer, RIPE NCC
Shane Williams, Austin, Texas; Systems Administrator, UT Austin
Shannon E. Bock, Rio Rancho, New Mexico; Business Systems
Support Analyst, Unisys
Sharon Lake, Los Angeles, CA; Web Designer, n/a
Sharon Stevens, Tucson, AZ; Student, University of Arizona
Shaun Reynolds, Northfield, MN; Student, Carleton College
Shawn Allen, Vancouver, WA; Software Engineer, self
Shawn Campbell, Canton, Ohio; Student Network Administrator,
Malone College
Shawn Cornelius, Broken Arrow, OK; Network Engineer, n/a
Shawn Dunn, Spring Creek, Nevada; Chief Cook and Bottlewasher,
Dumpsterdivers.net, and Dunn Consulting, Ltd.
Shawn Fogle, San Diego, CA; Aircraft Mechanic, USMC
Shawn Kinzel, St Paul, MN; System Engineer/Administrator, Self
Shawn McCarthy, Bowie, MD; Systems Administration Manager, n/a
Shawn Yarbrough, San Antonio, Texas; Software Developer,
nailstorm.com
Sherman Wang, Los Angeles, California; Student, University of
California Los Angeles
Shilon Shoaf, High Point, NC; Vice President, Orion Adv and
Design
Shimone Samuel, Pacifica, California; Web Developer, n/a
Shing Cheng, New York, New York; Graduate Student, New York
University
Shmuel (Seymour J.) Metz, Annandale, Virginia; Atid/2
Shon Burton, Irvine, CA; President, Dataverse Corporation
Sinan Karasu, Seattle WA; Electrical/Software Engineer,
bozuk.com
SI Reasoning, Birmingham, Alabama; Chief Technology Officer,
Protection Products
Sky Golightly, Capitola, CA; Systems Architect, Walking Thunder
Productions
Spencer Carter, Traverse City, MI; Lead Network Analyst, n/a
Spencer Cathey, Colville, WA; video game developer, unrapt.com
Sriram Kota, Miami, F1; Consultant, Independent
Stan Gatchel, Dallas, TX; President, Process Sciences Laboratory
Stan Novacki, Arlington, VA; Systems Engineer, n/a
Stefanie DeFiglia, Washington, DC; Program Manager, n/a
Steffen Hulegaard, Tiburon, California; President, TXL, Inc.
Stephan A. Greene, Herndon, VA; Systems Engineer, n/a
Stephen Bovy, Los Angeles, CA; Software Engineer, Computer
Associates
Stephen Degler, Philmont, New York; Director--;Systems and
Technology, Allegheny Energy Global Markets
Stephen Hughes, Dearborn, Michigan; President/CEO, Honeycomb
Electronics, Audio and
Stephen J. Wright, Madison, WI; Professor, University of
Wisconsin-Madison
Stephen Kemler, Cleveland, Ohio; Network Administrator, Athersys
Stephen Kuenzli, Phoenix, AZ; Software Engineer, Motorola
Stephen Martin, Murray Hill, NJ; Senior Developer, Binary
Blizzard Software
Stephen M. Deal, Perinton, NY; Systems Engineer, n/a
Stephen Mencik, Gambrills, Maryland; Senior INFOSEC Engineer,
ACS Defense (affiliation shown for identification only)
Stephen Milton, Redmond, Washington; ISP Owner, ISOMEDIA.COM
Stephen Moore, Tucson, AZ; Computer Programmer, University of
Arizona
Stephen Peters, Cambridge, MA; Doctoral Student, MIT AI Lab
Stephen Ronan, Cambridge, MA; Managing Director, Community
Technology Centers'' Network
[[Page 28341]]
Stephen R. Walter, Menlo Park, CA; Associate Chief Geologist, US
Geological Survey
Stephen Saunders, Los Angeles, CA; President, Kodan Web
Technologies, Inc.
Stephen Scrivner, Boulder, CO; Software Engineer, Micro
Motion--;division of Emerson
Stephen Waits, San Diego, CA; CEO, Waits Consulting
Stephen W. Hurst, Austin, Texas; Information Analyst, University
of Texas at Austin
Steve Colwell, Santa Barbara, CA; Software Architect, CodeWell
LLC
Steve Domenico, Louisville, Colorado; Webmaster,
wildwoodguitars.com
Steve Feldman, Newark, NJ; System Administrator, University of
Medicine and Dentistry of NJ
Steve Fox, Rochester, MN; Software Engineer, IBM
Steve Guerrero, San Francisco, California; concerned citizen, n/
a
Steve Johns, Greenbelt, MD; Software Engineer, Independent
Steve Kann, Roslyn Heights, NY; Chief Engineer, HorizonLive.com
Steve Kostecke, Providence, RI; Developer, Debian
Steve Lindt, San Jose, CA; Application Engineering Manager, LSI
Logic
Steve Metter, West Carrollton, OH; Senior Architect, Digineer
Steve Murtha, West Long Branch, NJ; President, Simulation Tools
Steven Armstrong, Milwaukee, WI; Information Technology
Consultant, Wisconsin Electric
Steven Bryant, New York, NY; Lab Manager, The Juilliard School
Steven Davis, Nurnberg, (originally Arizona); Solution Manager,
T-Systems
Steven Edwards, Nashville, TN; Software Engineer, (independent)
Steven F. Crisp, Amherst, NH; Senior Principal Engineer, MITRE
Corporation
Steven H. David, New York, NY; President, Steve David
Productions, inc.
Steven H Snover, Pasadena, California; Deputy Sheriff, Los
Angeles County Sheriff's Department
Steven K. Sharp, San Diego, California; Sr. Software Engineer,
n/a
Steven L. Bratt, Brush Prairie, WA; Communications Services
Manager, Vancouver School District
Steven L. Salzberg, Ph.D., Gaithersburg, MD; Senior Director of
Bioinformatics, The Institute for Genomic Research
Steven M. Palm, Loves Park, Illinois; Software Developer, n/a
Steven Nolting, Leslie, MO; IT Manager, SN Design
Steven O'Toole, Irvine, CA; Software Developer, self-employed
Steven Pierce, Kenosha, Wisconsin; Manager--;IS, ASF-
Keystone
Steven Pothier, Tucson, Arizona; Senior Scientist, SAIC
Steven Spencer-Priebe, Crofton, MD; Telecom System Engineer,
Science Applications International Corporation
Steven Thibault, Beverly, MA; Consultant in Engineering Systems,
FM Global Insurance
Steven Thomas, Boyton Beach, FL; IT Consultant, eDiets.com
Steve Wahl, Chanhassen, MN; Software Engineer, n/a
Stuart D. Pompian, Hanover, N-H; VP, Dartware, LLC
Stuart Levy, Champaign, IL; Sr. Research Programmer, University
of Illinois
Stuart Schneider, Portland, OR; Contractor, n/a
Sudhir Kumar, Ashburn, VA; Principal Member of Technical Staff,
Portal Software
Suman Karamched, Norcross, GA; PDM Consultant, n/a
Susan Farrell, Portland, OR; User Experience Specialist, ACM
Sylvester La Blanc, Anaheim. CA; Sr. Software Engineer, Anamex
Corp.
Tara Andrews, Somerville, MA; Systems Engineer, Akamai
Technologies
Tara de Wet, Tallahassee, FL; Student, n/a
Ted Chiang, Bellevue, WA; technical writer, (self-employed)
Ted Grzesik, Goffstown, N-H; Principal Software Engineer, i2
Technologies, Inc.
Ted Nitz, Santa Cruz, CA; Network Administrator, APT
Technologies Inc.
Ted Wright, Cleveland, Ohio; Engineer, NASA
Teresa L. Beumeler, Raleigh, NC; Accounting Assistant, Wright
Construction Company
Terrance C. Hansen, Sandy, Utah; Software Designer/Developer, n/
a
Terrence Egan, Cupertino, CA; Independent Software Developer,
Geodesic Tripoint
Terry Badger, Paso Robles, CA; Computer Technician, Cal Poly San
Luis Obispo
Terry Hibdon, Grandville, MI; Teacher, n/a
Terry Melton, Hoboken, NJ; Network Administrator, Engineering
Information
Thack Douglas, Denver, CO; senior network administrator, gambro
bct
Thaddeus Selden, Fredericksburg, VA; Scientist, Navsea
Theodore A. Jump, Austin, Texas; Senior Software Engineer,
NewsStand
Theodore J. Allen, Geneva, New York; Assistant Professor of
Physics, Hobart & William Smith Colleges
Theodore J Oliver, Tucson, Arizona; Database Administrator/
System Administrator, Desert Archaeology
Thomas A. Brown, San Diego, CA; Retired
Thomas Bohmbach, Jr., Minneapolis, FIN; Senior Software
Engineer, MLT Vacations, Inc.
Thomas Bradford Smith, El Paso, Texas; President/CEO, Southwest-
Technology Inc.
Thomas Gabriel von Schwerdtner, Wheaton, MD; Web Designer/Web
Applications Programmer, n/a
Thomas G. Moertel, Pittsburgh, PA; President, Moertel Consulting
Thomas J. Mather, New York City, NY; Software Developer,
Longitude
Thomas J. Philpot, Houston, Texas; Software Engineer, IBM
Thomas J. Teters, Ft. Collins, CO; Internet Tech., The Galactic
WareHouse
Thomas K. Egan, Altoona, PA; Programmer and Web Designer,
Liquidbinary
Thomas Malone, Long Beach, NY; Manager of IT Systems and
Administration, Lancer Insurance Company
Thomas McElroy, Morrisville, NC; Staff Software Engineer, n/a
Thomas Parker, Burke, VA; Technology consultant, n/a
Thomas P Mensch, Oakland, CA; Contracting Programmer,
Independant
Thomas P. Taggart, State College, PA; College Student, Penn
State University
Thomas R. Corbin, Fairfax, VA; CTO, SamSix
Thomas Smith, West Lafayette, IN; Developer, Debian
Thomas Warnock, Syracuse, New York; Senior Software Engineer,
AppliedTheory Corp.
Thomas Wiest, Orem, Utah; n/a
Thom Dieterich, Lynnwood, WA; Software Engineer, n/a
Tim Anderson, Walnut Creek, CA; President, T. Anderson
Associates, Inc.
Tim Curtin, Essex Junction, VT; Test Engineer, IBM
Tim Kennedy, Tewksbury, MA; Sr. Hardware Design Engineer, Avid
Technology, Inc.
Tim McClarren, San Francisco, CA; n/a
Tim O'Brien, Evanston, IL; Software Engineer, n/a
Timothy Basham, Bloomington, IL; Senior Programmer, AutoSafe
Intl.
Timothy E. Jedlicka, Glen Ellyn, IL; Network Entomologist, US
Citizen
Timothy E. Miller, Winston-Salem, North Carolina; Research
Assistant, Vanderbilt University Physics Department
Timothy Gray, Rosevelt Park, Michigan; I.S. Specialist, Gray
Technologies
Timothy H. Clapin, Laurel, MD; Systems Administrator, n/a
Timothy J. Stegner, Bolton, MA; Senior Systems Engineer,
Computer Corporation of America
Timothy J. Wood, Seattle, WA; Vice President, Omni Development
Timothy Kuo, Sterling, VA; Engineer, Orbital Sciences Corp.
Timothy MacDonald, Houston, Texas; Unix Administrator, Houston
Information Team
Timothy Musson, Cleveland; Software Engineer, Zin Technologies
Timothy P. Egbert, J.D., Ph.D., Salt Lake City, Utah; Senior
Software Developer, n/a
Timothy R. Butler, St. Peters, MO; Chairman & CEO, Universal
Networks (www.uninetsolutions.com)
Timothy Wall, Boston, MA; Director of Software Development,
Oculus Technologies
Timothy W. Lewis, Toledo, OH; Computer Science Student,
University of Toledo
Tim Sirianni, Cottage Grove, MN; SGI
Tim Thomas, Anchorage, AK; Editor, The Communique, Alaska Apple
User Group
Tim Uckun, Missoula, MT; IT Director, USIS
Todd A. Mizukami, Alpharetta, GA; NOC Manager, America Online
Todd Chatman, Urbana, IL; Graduate Student, University of
Illinois
Todd Eshler, Blacksburg, Virginia; Computer Engineering Graduate
Research Assistant, Virginia Tech
Todd Flinders, Sacramento, California; System Software
Specialist, California Department of Justice
Todd Hanson, Madison, WI; Software Engineer, Luhata Group
[[Page 28342]]
Todd Johnson, Evansville, IN; Unix Specialist, OneStar Long
Distance
Todd Lamothe, Boston, MA; Student, n/a
Todd Lawson, Phoenix, Arizona; Attorney at Law, n/a
Todd Sackett, San Francisco, CA; Software QA Engineer, n/a
Todd Warner, Durham, NC; Software Engineer, Red Hat Inc.
Tod Schmidt, Falls Church, VA; Network Engineer, Cable and
Wireless
Tom Arons, Davis, CA; Programmer/Analyst, University of
California
Tom Barclay, Long Beach, CA; Systems Analyst, PacifiCare Health
Systems
Tom Burton, Seward, AK; Student, Alaska Vocational Technical
Center
Tom B. Younker, Decatur, GA; Owner/Member, Dare Computer, LLC
Tom Callaway, Durham, NC; Software Engineer, Red Hat
Tom Cloud, Jamestown, RI; Senior Software Engineer, Healthcare
Automation
Tom Emmons, Chicago, IL; Technology Architect, Confirmative
Technologies
Tom Howland, San Jose, CA; Computer Scientist, n/a
Tommy M. McGuire, Austin, TX; Graduate Student, Dept. of Comp.
Sci., UT Austin
Tom Phoenix, Portland, Oregon; Perl Mentor, Stonehenge
Consulting Services
Tom Rauschenbach, Peterborough, New Hampshire; Computer
Programmer, U.S. citizen
Tom Raymond, Wausau, WI; Programmer/Analyst, Eastbay
Tom Rockwell, Lansing, MI; Graduate Student, Michigan State U.
Tom Scott, Bowling Green, Ohio; President, Vedatel
Tom Vanderpool, Kansas City, Mo; email administrator, n/a
Tom Voorheis, Ann Arbor, MI; Student, n/a
Tony Beauregard, San Antonio, TX; Manager, ISTI
Tony Duckett, Herndon, VA; System Administrator, n/a
Torleiv Ringer, Saint Paul, Minnesota; System Administrator, n/a
Toshi Isogai, Centennial, Co; Hardware Engineer, SEAKR
Engineering
Tracy Budd, Arlington, VA; Senior Software Engineer, Exadata
Analytics
Trammell Hudson, Bethesda, Maryland; CEO, Rotomotion Corporation
Travis J. Eckman, Jamestown, New York; Network Administrator,
Allied Fire Protection Systems
Travis Morga, Shawnee Mission, KS; Systems/Network Engineer, CIO
Inc.
Trever Furnish, Indianapolis, Indiana; Unix Administrator, Herff
Jones
Trevin Beattie, West Hollywood, CA; Software Developer, n/a
Trevor Johnson, Gardena, California; Software Engineer;
Contributor, FreeBSD Project
Trey Merrell, Newberg, OR; Programmer, Student
Troy D. Smith, Chicago, IL; Software Developer, Shoptalk
Troy Gutman, Lexington, KY; Programmer, Wyncom, Inc.
T. Shannon Gilvary, Union Beach, New Jersey; n/a
Tyler Palmer, Lawrence, Kansas; Software Architect/Network
Administrator, DesignLab
Ty Norton, Redmond, Washington; Network Administrator, n/a
Ty van den Akker, Arlington, MA; Java Developer, Oculus
Technologies
Valdis Kletnieks, Blacksburg, Virginia; Computer Systems Senior
Engineer, Virginia Tech Computing Center
Vance Shieh, Kingwood, TX; student, n/a
Vartan Piroumian, Palo Alto, CA; Senior Java Consultant, Sun
Microsystems
Vasant Ram, Richardson, TX; Electrical Engineer, none
Vaughan Johnson, San Francisco, CA; CEO, Vaughan Johnson Systems
Vic Parekh, Los Angeles, CA; Computer Programmer, n/a
Victor Didra, Quincy, WA; Graphics Artist, Quincy Valley Post-
Register
Victor D. Odhner, Phoenix, Arizona; Programmer/Analyst; n/a
Vijay Ramasubramanian, Manchester, CT; Aerospace Engineer, n/a
Vincent Broman, San Diego, CA; Scientist, Space and Naval
Warfare Systems Center
Vitaly Luban, Mountain View, CA; Software Development
Consultant, Los Altos Software Testing House
Vladislav Imshenetskiy, New York, NY; Software Engineer,
Micromuse Inc.
Wade E. Masshardt, Madison, WI; System/Network Administrator,
Wisconsin Alumni Association
Wade Hought, Mission viejo, California; Consultant, n/a
Wade Newbern, New York, NY; Copyeditor, n/a
Wally Flint, Marina del Rey, California; Independent Software
Developer, n/a
Walter Ellinthorpe, Herndon, VA; Field Engineer, United
Messaging
Walter Josh Staiger, Akron, OH; Student, Case Western Reserve
University
Walter K. Zydhek, Charlotte, North Carolina; NT Administrator,
Genesis II Networks, LLC
Walter W. Asher, Troy, Tennessee; TAGMA of Northwest Tennessee
Walter Wilson, Lexington, NC; Student-Computer Science, College
Warren Ferguson, Cary, North Carolina; Senior Software Engineer,
n/a
Warren Togami, Honolulu, Hawaii; Founder, Mid-Pacific Linux
Users Group
Warren Turkal, Memphis, TN; Computer Science Intern, DotLogix,
Inc.
W. C. Ryan Lewis, Janesville, WI; Owner, Red Moon Computers
Wendy Seltzer, New York, NY; lawyer and Fellow, Berkman Center
for Internet & Society
Wes Groleau, n/a, Indiana; Software Engineer, n/a
Wesley Ferrel, Omaha, NE; Technical Engineer, Distribution
Management Systems
Wesley P. Taylor, Bellingham, WA; Database Programmer, Premier
Agendas, Inc.
Wesley Townsend, Guttenberg, NJ; Computer Consultant, Deloitte
Consulting
Wesley Watters, Pittsburgh, PA; Graphic Artist, n/a
Wes Loder, Deer Lake, Pennsylvania; Campus Librarian, Penn State
Schuylkill
Wes Morgan, Grand Rapids, MI; Computer Science Undergrad
Student, Calvin College
Wes Price, Irving, TX; Systems Engineer II, Southwest Airlines
Whitney Tracy Austin, TX; n/a
Wilbur Liebson, Tucson, Arizona; retired
Will Grzanich, Chicago, IL; Software Developer, Morningstar
William A. Birch, New Ipswich, NH; Chief Techical Officer, The
lyte Research Group
William Barnett-Lewis, Madison, WI; Owner, Brain Candy Computing
William B. Cushman, Ph.D., Pensacola, Florida; President,
Poiesis Research
William Biese, Kaukauna, WI; Systems Analyst, Claim Management
Services Inc.
William Birch, New Ipswich, NH; CTO, The lyte Research Group
William Breen, Drexel Hill, Pennsylvania; Sr. Software Engineer,
InterDigital Communications Corp.
William Chapple, Ponchatoula, LA; Director of IS, n/a
William Costa, Durham, NH; Information Technologist, University
of New Hampshire
William Croft, Menlo Park, CA; Engineer, MITEM Corporation
William E. Shotts, Jr., Rockville, Maryland; VP, Technical
Services, Media Cybernetics, Inc.
William E. Stuckey, Indianapolis, IN; Network and Information
Systems Coordinator, School of Liberal Arts
William F. Mann, Sudbury, MA; Computer consultant, Self-employed
William G. Thompson, Jr., Bridgewater, NJ; Chief Japple
Evangelist, Saucon Technologies
William Hubscher, Huntsville, Alabama; Media Relations Manager,
Carleton Public Relations, Inc.
William James Stewart, Charleston, SC; Software Specialist,
Buist
William Lamb, Aurora, Illinois; President, William Lamb
Development, Inc.
William Leddy, Alexandria, VA; Director, St. Stephen's & St.
Agnes School
William Lee Irwin III, Hillsboro, OR; Linux kernel programmer,
IBM
William L. Moss IV, Atlanta, GA; Digital Technologies
Specialist, Atlanta Journal-Constitution
William Riley, Kirksville, MO; Owner, R and D Technologies
William Schneider, Rochester, Minnesota; Esquire, Retired
William Warner, Seattle, Washington; Software Engineer, A large
wireless carrier
William Wise, Norfolk, VA; Manager, Cell Signaling Technology
Will Secrest, Atlanta, Ga; IS Development Manager, Intercall
Will Sergent, Lakewood, OH; System Administrator, n/a
Will Symonds, Houston, TX; IT Consultant, thincpc.com
Will Wainwright, University City, Missouri; System
Administrator, Washington University in St. Louis
Wilson Jones, Vinita, OK; Independent Programmer, n/a
Winfield Hill, Stoneham, MA; Dir of E.E., Rowland Institute
Wolfgang Rupprecht, Fremont, CA; Software Engineer, wsrcc.com
W. Wood Harter, Orange, CA; Owner/President, Side-Eight Software
(www.side8.com)
[[Page 28343]]
Wyatt Bode, Lebanon, Pennsylvania; Manufacturing Information
Systems Coordinator, Curwood Specialty Films
Wynette Richards, Albuquerque, NM; Software Engineer, Los Alamos
National Laboratory
Young Hyun, San Diego, CA; Software Developer, San Diego
Supercomputer Center
Zac Feuerborn, Boise, ID; Consultant, n/a
Zachary Erbaugh, Richmond, Indiana; Computing Support
Specialist, Bethany Theological Seminary and Earlham School of
Religion
Zachary Weinberg, Berkeley, CA; Consultant, CodeSourcery LLC
Zach Dennis, Columbus, OH; Resource Specialist, EPRI
Zach Johnson, Minneapolis, MN; Student, University of
Minnesota--;Twin Cities
Zephaniah Hull, Atlanta, GA; Developer, Debian
Please note: we are signing this letter as individuals, not as
official representatives of the companies we work for or
organizations we belong to.
MTC-00028574
From: Brian Bender
To: Microsoft ATR
Date: 1/28/02 4:41pm
Subject: Microsoft Settlement
To Whom It May Concern,
As I understand the proposed settlement regarding the anti-trust
trial against Microsoft, little if anything is done to correct the
actions that have been found anti-competitive. The agreement simply
prevents them from continuing. This hardly seems sufficient to deter
a corporation from cheating its way into a dominant position. There
should be, in my opinion, actual peanalties paid for past actions,
so that there is a real disincentive to engaging in these practices
in the future.
Consider this a ``no'' vote on the proposed
settlement.
Thanks for your attention.
Sincerely,
Brian Bender
Pittsburgh, PA, USA
MTC-00028575
From: Lissa Levy
To: Microsoft ATR
Date: 1/28/02 4:41pm
Subject: Microsoft Settlement
I believe that the proposed settlement is a bad idea. It gives
too much control to Microsoft without concern for the consumer.
Thanks,
Lissa Levy
Chapel Hill, NC
MTC-76
From: Ford, Jim
To: Microsoft ATR
Date: 1/28/02 4:41pm
Subject: Microsoft Settlement
To Whom It May Concern:
I am writing this last minute email to state my support for the
Microsoft Settlement. I believe that this battle the DOJ has waged
against Microsoft has been, at the least, misguided, and has
threatened competition more than anything Microsoft itself has been
accused of. I would also point out that most of the key players in
this battle on the corporate side stand to gain greatly not because
DOJ will eliminate a threat to their well-being, but because DOJ is
beating down a competitor who has the pulse of the marketplace
(which they often do not).
Let's get this travesty of litigation out of the way and move on
to something important!
Jim Ford
Network Consulting
[email protected]
(888) 969-;6699
MTC-00028577
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:42pm
Subject: Microsoft settlement
Sir:
I am but a lowly consumer and cannot afford 10,000 dollar an
hour lawyers.
I have no way to file any briefs with any judges and would not
even know how. I can tell you one thing. On my computer I cant even
remove one small icon that has to do with the MSN network. I would
not even begin to be able to come close to removing or using any
other soft ware on my home PC. Now I know little of the law and have
no way of sending this letter to the judge.
I can tell you one thing micro soft has monopolized my system
and that's a fact.
Thank You
Thomas F. Sullivan
little guy consumer
MTC-00028578
From: Susan Kaltenbach
To: Microsoft ATR
Date: 1/28/02 4:43pm
Subject: Microsoft Settlement
To the Department of Justice (DOJ):
I would like to submit my comment on the issue of the Microsoft
settlement.
I understand that complainants against the settlement state that
it (a) Does not correct Microsoft's ``anti-competition''
errors, and (b) Having Microsoft donate $1B of hardware, software
and training is wrong because it perpetuates Microsoft's domination
of the operating system marketplace.
I cannot comment on topic (a) because I am not well educated on
the complaints and resolutions of this large and complex case. But I
can comment on topic (b).
I am an individual who cares deeply about getting more
underrepresented school kids interested in the sciences, and I have
expended effort and mentorship to try to facilitate this. (In
Washington state, ``underrepresented'' means racial
minorities and ``first generation'' college
students--;students who are the first in their family history to
attend college. I personally am a ``first generation''
college student.) I've heard comments from those opposed to the $1B
donation that these kids should receive Linux software, since it is
``free'' and ``open code,'' and would help
loosen Microsoft's grip on the operating system's marketplace.
I want to make my message perfectly clear: These kids would be
further ghettoized if the Linux proponents get their way. The
Microsoft Windows software and applications model is used throughout
the business world and is the dominant international software. To
donate a fringe operating system like Linux would make these non-
employable.
Not only is Linux useless in developing work skills for these
kids, it is also extremely difficult to learn. Thus, only those who
are supremely motivated--;such as young boys already pursuing
the maths and sciences--; would make the effort to learn. The
other, majority of students would avoid computing. And they would
lack computer skills needed for them to succeed academically and
professionally.
The present paradigm is to introduce kids to Windows or
MacIntosh operating systems. Then, the kids move to more specialized
operating systems as the need arises. Unix and Linux are often used
by academics--; not by the rest of the world.
I therefore respectfully submit that the settlement agreement
is, on topic (b), completely fair and valuable to the nation as a
whole.
Thank you for the opportunity to comment.
Susan Kaltenbach
Mercer Island, Washington
MTC-00028579
From: JJ Gifford
To: Microsoft ATR
Date: 1/28/02 4:43pm
Subjec: Microsoft Settlement
To Whom It May Concern:
Attached are my comments re. United States et al. v. Microsoft,
pursuant to the Tunney Act.
I have attached two copies of the same document, one in
Microsoft Word format; the other in Rich-Text Format. Either
document should be readable on any modern PC using up-to-date
software.
Thanks in advance,
JJ Gifford
212 226 3462
Jonathan Gifford
117 Sullivan St., 5A
New York, NY 10012
[email protected]
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
microsoft, [email protected]
re. Deficiencies in Microsoft settlement.
Pursuant to the Tunney Act, I am filing these comments on the
proposed resolution of United States, et al. v. Microsoft.
My Perspective, Experience, and Interest
I believe this case is tremendously important. As personal
computers and the Internet have become increasingly important to our
everyday lives, so too has the landscape of the technology markets
become increasingly important. Not only will the outcome of this
case impact the fortunes of a host of technology companies, but it
will also affect how I and millions of others communicate with our
friends and family, what choices we have for online services such as
digital photography, and of course how much we and businesses spend
on technology infrastructure. Once the government decided not to
seek a structural remedy, it necessarily embarked on a course
[[Page 28344]]
of regulation. Regulation only works when the conduct prohibitions
truly restrain anti-competitive behavior, and create a genuine
opportunity for innovators to enter the market and compete in it
based on their merits. Unfortunately, the Proposed Final Judgement
(PFJ) presented by the Department of Justice and several states
fails on all counts.
Its results will be only a mild, temporary modification to
Microsoft's well-documented behavior, with no lasting or significant
effect on competition. Microsoft will retain its monopoly and every
incentive to maintain it through any means not specifically
prohibited by the PFJ. Consumers will continue to be deprived of the
innovations and other benefits of a truly competitive market, in
part because innovators will be deprived of the opportunity and
incentive to challenge Microsoft's monopoly as it expands and
evolves. Most importantly, America's technology industry will
stagnate, as ever fewer competitors see any value in entering
markets dominated by Microsoft.
While I believe that many if not most Americans will be affected
by the disposition of this case, I have a particular interest in it
as a long-time technology consumer, entrepreneur, and enthusiast.
Since 1980, I have used personal computers nearly every day, first
as a hobby, then for school, and later for my career in the
technology industry. In the early 1990s, I managed a small but
pioneering desktop publishing department for a large advertising
agency. Later, I joined a groundbreaking multimedia company that
produced CD-ROMs for both Macintosh and Windows-based computers.
Most recently, I was a partner in a successful Internet
development firm, which designs and produces web sites and other
interactive media for corporate clients. Having sold my share of
that business, I currently consult for other companies in the
technology industry.
Definitions Are Critical: the Devil Is in the Details
1. Most provisions of the PFJ depend on the definition of
``Microsoft Middleware.'' Accordingly, we should expect
this term to be well-defined, with clear boundaries and
unquestionable meaning. Unfortunately, the reality is that it is
vaguely defined, in language that grants Microsoft itself much
control over what software it, and therefore the PFJ, governs.
1.1. Definition: According to the PFJ (PFJ VI.J),
``Microsoft Middleware'' is any software which:
. is distributed separately from the operating system,
. controls the user interface of the Microsoft Middleware,
. provides substantially similar functionality as a Microsoft
Middleware Product, and
. is trademarked.
1.2.
Definition gives Microsoft control. So Microsoft, which has long
stated its goal of incorporating browsing and other middleware
functions into its operating system products, can exclude code from
the Microsoft Middleware definition simply by not distributing it
separately from the operating system, or even just by not
trademarking it. Microsoft therefore will have enormous latitude in
determining which new operating system features will be governed by
the PFJ.
Clarity Is Essential to Compliance and Public Confidence.
2. The PFJ consists largely of vague prohibitions hobbled by
numerous qualifiers and exemptions.
For instance:
Limited replacement of Microsoft Middleware.
2.1. The PFJ requires Microsoft to enable users and OEMs to
specify that Non-Microsoft Middleware be used in place of Microsoft
Middleware (PFJ, III.H.2). This is a welcome change because it had
previously been difficult to replace Microsoft's Internet Explorer
(IE) without facing ``considerable uncertainty and
confusion'' when IE would nonetheless unexpectedly be invoked
under certain circumstances (Findings 171).
2.1.1. Exemption for Microsoft servers. Unfortunately, Microsoft
is exempt from this requirement when the Middleware Product would be
invoked ``solely for use in interoperating with a server
maintained by Microsoft'' (PFJ III.H). This may exempt
Microsoft's current move into network services (''.NET'')
from the judgement, inasmuch as such services communicate with
Microsoft-owned servers. Microsoft considers .NET to be the next
phase of the Internet, at last offering ``real''
applications and services. The first .NET service, Microsoft
Passport, aims at becoming a cornerstone of Internet shopping and
authentication transactions, and stores its data exclusively on
Microsoft-owned servers.
2.1.2. Exemption for proprietary technologies. Another exemption
allows Microsoft to launch its own middleware when the Non-Microsoft
Middleware ``fails to implement a reasonable technical
requirement'' (PFJ III H 3). Microsoft will be able to
capitalize on this loophole simply by emphasizing proprietary
technologies not supported by Non- Microsoft Middleware. To the
extent that Microsoft can implement features using proprietary
technologies, it will better be able to exclude Non-Microsoft
Middleware. A truly pro-competitive PFJ would encourage Microsoft to
use open industry standards.
OEM Distribution Channel Opened, But For Whom?
2.2. The PFJ requires Microsoft to allow OEMs to customize the
user's desktop by installing icons for Non-Microsoft Middleware and
other products (PFJ, III.C.1). This is important to the PFJ because
Microsoft has in the past excluded Netscape and other competitors
from the valuable OEM distribution channel, often by contractually
limiting an OEM's ability to customize the desktop. In addition,
Microsoft has used its control over the valuable desktop real-estate
as an incentive to get IAPs such as AOL to support Microsoft
Middleware instead of competing products.
2.2.1. OEMs lack incentive. Unfortunately, because Microsoft's
Internet Explorer is now the market leader, there is today little
consumer demand for alternatives to Microsoft Middleware. This makes
it unlikely that an OEM would see much gain, if any, in installing
Non-Microsoft Middleware. Such distribution may benefit the
middleware developers, but would not greatly benefit the OEM.
2.2.2. Customizations will be short-lived. This prohibition
remains in effect only for a 14-day window starting after the end
user first turns on his or her PC. Thereafter, Microsoft is free to
re-arrange the desktop as it sees fit, including automatic removal
of any non-Microsoft icons, e.g. by operating system features such
as the ``Clean Desktop Wizard'' built-in to Windows XP
(PFJ, III.H.3). So, any Non-Microsoft Middleware developers who do
manage to secure OEM distribution could well see their products
wiped off the desktop after a short two weeks.
2.2.3. Likely results. These limitations beg the question: will
any OEMs risk irritating Microsoft for such minor benefits? If they
do, will the results truly be increased competition in the
middleware market?
General Rule on Sharing APIs.
2.3. The PFJ requires Microsoft to share APIs used by Microsoft
Middleware with ISVs, et al. (PFJ III.D). In its Findings of Fact,
the District Court found that Microsoft had repeatedly withheld such
information from ISVs, or used its disclosure as an incentive for
``friendlier'' behavior, in an effort to preserve the
applications barrier to entry (Findings, 84, 90, 91).
Because ISVs depend on such information to develop software for a
given platform, withholding APIs can limit or destroy an ISV's
ability to create competitive products. Therefore full API
disclosure should be considered a basic condition for any kind of
effective competition.
2.3.1. Only APIs necessary to mimic Microsoft's products will be
disclosed. Unfortunately, the PFJ requires Microsoft to share only
those operating system APIs used by Microsoft Middleware. This is a
limited set of APIs, of use only to those ISVs who want to develop
middleware products similar to Microsoft's. It does little to help
ISVs offer features or innovations not already offered by
Microsoft's products. Since ISVs typically must provide innovations
to gain market share against an entrenched market leader, this
requirement is unlikely to promote competition in the middleware
market.
2.3.2. Many APIs may be withheld on dubious
``security'' grounds. The PFJ allows Microsoft to exclude
any APIs the disclosure of which ``would compromise the
security of a particular installation or group of installations of
anti-piracy, anti-virus, software licensing, digital rights
management, encryption or authentication systems'' (PFJ
III.J.1).
. This is a surprising exemption because few security
professionals believe API disclosure could weaken any well-designed
security system. Indeed, the complete source code (a level of
disclosure far greater than simple APIs) is publicly available for
several operating systems and security-related products that are
widely considered to be more secure than Windows (e.g. the Linux
operating system).
. Yet the inclusion of this exemption implies that there in fact
are such APIs
[[Page 28345]]
whose disclosure could compromise security, and thereby opens the
door for Microsoft to make claims about which ones they are. There
is no basis for the Competitive Impact Statement's
(``CIS'') optimism that security-related exemptions will
be limited to ``keys and tokens'' (CIS, IV.B.5) of
particular installations. Nothing in the PFJ's language so limits
the exemptable APIs, and such entities aren't generally visible at
the API level, anyhow.
. With Microsoft's current push into network services (under the
.NET moniker), we can expect privacy and security features to be
suffused throughout the code, increasing the number of APIs
Microsoft will try to exempt from disclosure. Indeed, Microsoft has
just this month announced that privacy and security will henceforth
be its main priorities.1 Associated Press, ``Microsoft
Announces Strategy Shift'', D. Ian Hopper and Ted Bridis,
January 17, 2002.
Inadequate Enforcement
3. The task of detecting whether Microsoft has violated these
and other provisions falls to a three- person ``Technical
Compliance'' committee (the ``TC''). This committee
will have access to the source code and tools used to create
Microsoft's products, as well as access to the relevant Microsoft
staff (PFJ IV.B.8). In theory, the TC's oversight will prevent
Microsoft from using technical strategies to camouflage non-
compliance, for instance by wrongly claiming that some important API
should not be disclosed for security reasons. While such oversight
may in fact be helpful, the TC is an inadequate, inefficient and
non-transparent attempt to ensure enforcement of a Judgement that
otherwise relies on voluntary compliance and enforces few penalties
for transgressions.
3.1. Severe employment restrictions threaten the TC's
performance. The PFJ includes employment restrictions which will
dramatically narrow the pool of TC candidates--;first, to those
experts not currently working for Microsoft or a competitor, and
then to those remaining candidates willing to forego any such
employment for two years after serving on the TC. In so doing, it
excludes nearly all of those experts in operating systems design and
programming whom the TC most needs, since it will be very difficult
to find any such experts not currently working for, and with no
intention of working for, Microsoft or a competitor. As a
professional in this field, I cannot imagine why a highly competent
independent minded computer scientist would wish to serve on the TC
under these circumstances.
3.2. The TC will be buried under a mountain of technical data.
Even if well staffed, the committee will have an enormously
difficult task from a technical standpoint. Inasmuch as deciphering
computer source code can be difficult even for the code's author,
much less a new reader, and inasmuch as Windows XP alone consists of
some 45 million lines of code2, this committee will have an
enormously difficult task. Even with a large support staff, it is
hard to imagine this committee effectively analyzing Microsoft's
source code and fully investigating allegations of non-compliance.
3.3. The TC cannot ensure timely remedies. Further, because the
committee is prohibited from public comment (PFJ, IV.B.10), it will
be unable to confirm any ISV's suspicions about Microsoft's
compliance, nor could it force a timely remedy. Its only recourse
will instead be to notify Microsoft and the Plaintiffs and to
suggest a possible remedy. Therefore, an ISV suspecting Microsoft of
non-compliance will not receive an immediate remedy, but must
instead rely on a bureaucracy whose natural tendency will be not to
pursue minor infractions. While such infractions may indeed be minor
in the scope of the overall judgement, they would assuredly be of
great importance to the ISV. 3.4.
The TC's findings may not be presented to the Court or the
public. Under the PFJ, the TC may not testify in any matter relating
to the Final Judgement, nor may its work product and recommendations
be submitted to the Court (PFJ, IV.D.4.d). Similarly, the TC is
prohibited from public comment (PFJ, IV.B. 10). Thus, even if the
TC's exclusive access to source code should produce evidence of
deception and non-compliance by Microsoft, this evidence will not be
presented to the Court. 2 BusinessWeek, ``Windows XP: a
Firewall for All'', Alex Salkever, June 12, 2001.
. In theory, the TC will report to the Plaintiffs, who may in
turn report such non- compliance to the Court, and produce evidence
of it via other means. This may well happen in the case of massive
or severe non-compliance. However, what happens to the small ISV who
suspects Microsoft of non-compliance, e.g. by not disclosing some
necessary API? Such an injured party may report its concerns to the
TC, and then hope that the TC is able to verify its claims, and
further is able to convince the Plaintiffs to go to court on their
behalf. During this bureaucratic pursuit, the ISV's business may
suffer irreparable harm, or even vanish altogether (as has very
nearly happened to Netscape). Were such ISVs to have access to
Microsoft's source code, perhaps in a secure facility, they could
investigate such concerns themselves, directly and immediately.
Indeed, API disclosure would not be an issue in the first place.
. The point here is that the nature of the TC is as the first
step in a bureaucracy whose natural instinct will be to pursue only
the most serious transgressions. In the context of a rapidly
changing technology industry, this is a serious weakness in the PFJ.
3.5. PFJ places enormous weight on third TC member. The PFJ proposes
that the Plaintiffs appoint one member of the TC, Microsoft appoint
a second, and then these two members themselves choose a third (PFJ
IV.B.3). This structure places enormous responsibility on the third
member, who can be expected to decide any disagreement between
Microsoft's representative and the Plaintiffs'', especially in
the context of the Voluntary Dispute Resolution process in IV.D. It
is unclear whether the TC reports to the Plaintiffs only as a single
unit, or whether a dissenter's view also gets submitted to the
Plaintiffs. A better structure would at the very least make it
crystal clear that any single member of the TC may report to the
Plaintiffs.
Also, creating such a fulcrum position in the TC makes this
third seat much less attractive and harder to fill, and injects an
element of politics into the TC that will distract from its
technical mission and smooth functioning. Because the TC is not a
decisional body, but simply a means to keep a watchful eye on
Microsoft's compliance, it is unclear why Microsoft should have
representation here at all. All of the TC's members should be
appointed by the Plaintiffs, perhaps with the DOJ appointing one
member, the States appointing a second member, and the Plaintiffs
collectively appointing the third. 3.6. Catch-22. Given the enormity
of the TC's tasks, the limits on its powers and enforcement
abilities, and the severe employment restrictions surrounding
service in the TC (IV.B.2), it is clear that any candidate for the
TC willing to accept the job is almost certainly too inexperienced
to be legitimately qualified for it.
In Today's Market, More is Needed.
4. In perhaps its broadest weakness, the PFJ fails to recognize
that the circumstances of the original case were unique, and that
circumstances today are very different. The Internet's rapid public
acceptance around 1994-;1995 took many established computer-
industry firms by surprise, and radically changed the personal
computer market. The basic reasons users wanted to own personal
computers changed dramatically within less than two years. Two
companies in particular, Netscape and Sun Microsystems, were able to
aggressively exploit the new technologies and to take advantage of
Microsoft's slow response to the burgeoning consumer demand. As a
result, they were able to present a serious threat to the
applications barrier to entry that has long protected Microsoft's
monopoly in Intel-compatible operating systems.
4.1. No longer any consumer demand for non-Microsoft Middleware.
But that window of opportunity is long closed. The Internet is an
established part of the personal computer market. Microsoft's
Internet Explorer is the dominant browser. There no longer is any
great consumer demand for alternative browsers. Netscape no longer
exists as an independent company, and development of the Netscape
browser occurs at a fraction of its former pace. Even the CIS
acknowledges that Microsoft has ``perhaps extinguished
altogether the process by which these two middleware technologies
[Java and the Netscape browser] could have facilitated the
introduction of competition into the market for Intel-compatible
personal computer operating systems'' (CIS, III.B.3).
4.2. Cannot resuscitate existing middleware competitors. Nothing
in the PFJ can or will restore these competitors to their former
strength. There is no way to rekindle the massive consumer demand,
then left unserviced by Microsoft, that gave these companies their
initial momentum.
4.3. Hoping for another thousand-year flood. Still, the CIS
claims the PFJ will ``restore the competitive threat that
middleware products posed prior to Microsoft's unlawful
undertakings'' (CIS, II). Given that Microsoft now dominates
the browser market and retains its operating systems monopoly, and
given that the PFJ
[[Page 28346]]
allows Microsoft to support its browser market share by tying the
browser to the operating system, this claim seems to rest on the
optimistic hope that some new disruptive technology will appear,
will be ignored by Microsoft, and will create massive consumer
demand for some non-Microsoft Middleware. Without such an event, the
PFJ merely establishes rules for a game that has no players.
Unconditional Surrender
Finally, in a bizarre and extreme limitation, the PFJ will
expire in only five years--;regardless of whether or not
Microsoft retains its operating systems monopoly (PFJ, V.A). The DOJ
must believe that not only is the PFJ an effective remedy, but that
it will be so effective that Microsoft will be reduced to a shadow
of its former self and must be unshackled in just five years (seven,
if the Plaintiffs seek and receive the maximum extension permitted
by the PFJ). Unfortunately, this clause is so careless that it will
release Microsoft no matter the circumstances--;that is, even if
Microsoft retains or even strengthens its monopoly power. The
message that the PFJ sends is ``we'll try this for five years,
and then we're giving up.''
Any judgement should remain in effect until the Court finds that
Microsoft no longer holds a monopoly in Intel-compatible operating
systems. It makes little sense to release Microsoft until
competition has re-entered the market and Microsoft may no longer
commit the illegal acts described by the Court'' s Findings of
Fact.
Alternatives
This PFJ illustrates the difficulty in devising effective
conduct remedies for complex software cases such as this, especially
where the defendant retains its monopoly power and the incentive to
expand and maintain it by any method not prohibited by the PFJ.
Vague technical definitions and even apparently narrow exemptions
can be exploited by the monopolist to maintain its ill-gotten gains.
It would be vastly preferable to create the proper structural
conditions for competition by decoupling parts of the monopolist
enterprise. Without a structural remedy, it is imperative that the
definitions and prohibitions in the Final Judgement be as clear and
comprehensive as possible, so as to fully restrict the anti-
competitive behavior that has been denying consumers choice,
innovation and fair market pricing. There are a number of specific
changes that ought to be made to the PFJ:
. Any judgement should remain in effect until Microsoft no
longer holds a monopoly in Intel- compatible operating systems.
Starting in 5 years, the Court should annually review Microsoft's
position in the Intel-compatible operating systems market. Should it
find that Microsoft no longer exercises monopoly power in that
market, and therefore cannot commit the illegal acts described in
the Court's Findings of Fact, it could release Microsoft from the
terms of the judgement.
. The TC should be appointed entirely by the Plaintiffs, perhaps
with the DOJ appointing one member, the States appointing a second
member, and the Plaintiffs collectively appointing the third.
. Definitions such as that of ``Microsoft Middleware''
should be tightened considerably, and the PFJ reworked to minimize
its reliance on such narrow categories.
. Microsoft should be required to make the full source-code for
its Intel-compatible operating systems available for viewing by ISVs
et al.. This will allow ISVs to better develop competitive products,
and will allow the ISVs themselves to monitor Microsoft's compliance
with the judgement's other technical requirements, instead of
relying on an inefficient, overworked TC.
. If the Court decides against requiring source-code sharing, it
should at a minimum require the disclosure of all operating system
APIs used by any Microsoft products (i.e. not just those APIs used
by Microsoft Middleware). A blanket disclosure requirement such as
this will close those existing loopholes whereby Microsoft might
withhold critical information from ISVs whose products threaten its
operating system monopoly.
. Exemptions permitting various proscribed behaviors under
certain circumstances should, as a whole, be stricken. Finally, the
judgment should include real consequences for non-compliance, such
as further conduct prohibitions, financial penalties, or further
disclosure requirements. The PFJ currently provides only a possible
Court-imposed two-year extension of its rather toothless provisions.
Conclusion
I hope that the PFJ is modified by the DOJ or the Court, and
that what seems to be a great opportunity for antitrust law to make
a difference for tomorrow's entrepreneurs and consumers is not lost
in a fog of complexity. The technology may be complex and changing,
but the underlying competitive issues are fundamental. I take both
comfort and concern from the fact that I am clearly not alone in
expressing these concerns. As the Financial Times editorialized:
``. . .It would be wrong for the states, or the
judge, to reject this settlement merely because it is not
sufficiently punitive. The test is whether the proposal provides
enough protection for the public and for Microsoft's competitors. As
it stands, it does not meet this test. Though a continued trial
would be expensive and distracting, it would be better than an
unsatisfactory settlement. This proposal should be rejected..''
(Financial Times, ``Micro-too-soft'', November 5, 2001)
I believe that the PFJ, if accepted by the Court in its current
form, will lead to clear and irreparable harm to consumers and to
the United States'' technology industry. So pervasive has
technology become that the technology industry is an obviously
critical component of the American economy.
Even Business Week, itself no anti-capitalist Microsoft critic,
recognized the broad implications of the resolution of this case:
``. . . [T]he Justice Dept.'s weak censure of
Microsoft for its serious monopolistic practices could cost the U.S.
mightily in the years ahead. The great strengths of the American
economy are its openness, its competitiveness, and its
innovativeness. Monopoly is the enemy of all three.''
(BusinessWeek, ``Slapping Microsoft's Wrist'', November
19, 2001)
Based on my experience, I do not find the PFJ to be in the
``public interest'', which is the standard that the DOJ
and the Court are subject to under the Tunney Act.
Respectfully submitted,
Jonathan Gifford
January 28, 2002
MTC-00028580
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 4:40pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200 Washington, DC 20530-;0001 Dear
Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Noreen Willig 7394 E. Brisa Drive Scottsdale, AZ 85262
MTC-00028581
From: Peter Anderson
To: Microsoft ATR
Date: 1/28/02 4:44pm
Subject: MICROSOFT SETTLEMENT
Please find attached my comments in the Microsoft Settlement.
Peter Anderson
5749 Bittersweet Place
Madison, WI 53705
(608) 233-;6167
Daytime: (608) 231-;1100
MTC-00028581--;0001
5749 Bittersweet Place
Madison, Wisconsin 53705
(608) 233-;6167
January 28, 2002
Ms. Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW Suite 1200
Washington, DC 20530-;0001
Re: MICROSOFT SETTLEMENT COMMENTS
Ms. Hesse:
I would like, if I may, to forgo adding any further efforts to
muddy the law and, instead, just comment on the proposed settlement
as a consumer who uses a PC computer. With all the drang and sturm
already surrounding this case, the interests of the consumer can
sometimes get lost in the legal crossfire.
Separate from the arcana of the law, there are two competing
views that have been expressed to determine the consumer's interest,
as regards the benevolence of the monopoly that Microsoft maintains
over desktop operating systems, and against
[[Page 28347]]
which the proposed settlement ought to be judged.
The first, and most easy to understand, is the view ably
championed by Microsoft. That points to the great advantages in
convenience from having a single seller that, alone, can erect a
seamless intra and inter connectivity among the various applications
on one's own desktop and in electronic communications with different
computer users using different platforms. Certainly the convenience
factor has some merit and, I must confess, some of my computer-using
colleagues with whom I discuss these issues second Mr. Gates''
feelings.
On the other hand, and less readily understood but eminently as
vital, is the essential creative energy for dynamic change and
future progress that only emanates from disorganization and chaos,
both of which are, too often, swallowed in the maw of a monopoly,
especially one, like here, that has been found to wantonly abuse its
monopoly power. That is why I believe this excerpt from the Pulitzer
Prize winning book, Guns, Germs and Steel, is so instructive for how
to structure a remedy in this case, if you will indulge me in this
short detour to an explanation of why civilizations expand and fall-
``Why did China lose its [technological] lead [over
Europe]? Its falling behind is initially surprising because China
enjoyed undoubted advantages . . .
``These advantages and head start enabled medieval China to
lead the world in technology. The long list of its major
technological firsts . . . In the early 15th century it
sent treasure fleets, each consisting of hundreds of ships up to 400
feet long and with total crews of up to 28,000, across the Indian
Ocean as far as the coast of Africa, decades before Columbus's three
puny ships crossed the narrow Atlantic Ocean to the Americas''
east coast. Why didn't Chinese ships proceed around Africa's
southern cape westward and colonize Europe, before Vasco da Gama's
own three puny ships rounded the Cape of Good Hope eastward and
launched Europe's colonization of East Asia? Why didn't Chinese
ships cross the Pacific to colonize the America's west coast? Why,
in brief, did China lose its technological lead to the formally so
backwards Europe?
``The end of China's treasure fleets gives us a clue. Seven
of those fleets sailed from China between A.D. 1405 and 1433. They
were then suspended as a result of a typical aberration of local
politics that could happen anywhere in the world: a power struggle
between two factions at the Chinese court (the eunuchs and their
opponents). The former faction had been identified with sending and
captaining the fleets. Hence when the latter faction gained the
upper hand in a power struggle, it stopped sending fleets,
eventually dismantling the shipyards, and forbade oceangoing
shipping . . . But in China . . . because the
entire region was politically unified . . . [o]ne decision
stopped fleets over the whole of China.
``Now contrast those events in China with what happened
when fleets of exploration began to sail from politically fragmented
Europe. Christopher Columbus, an Italian by birth, switched his
allegiance to the duke of Anjou in France, then to the king of
Portugal. When the latter refused his request for ships in which to
explore westward, Columbus turned to the duke of Medina-Sedonia, who
also refused, then to the count of Medina-Celi, who did likewise,
and finally to the king and queen of Spain, who denied Columbus's
first request but eventually granted his renewed appeal. Had Europe
been united under one of the first three rulers, its colonization of
the Americas might have been stillborn.'' Jared Diamond, Guns,
Germs and Steel: the Fates of Human Societies, W.W.Norton & Co.
(1999), at pp. 411-;413 (emphasis added).
The same motivating forces that animate a civilization described
by Mr. Diamond similarly infect those of companies, technologies and
markets. Microsoft certainly has much to be proud of in prevailing
over so many of its competitors. But innovation does not number high
on that list.
Whether we think back to the first ``killer app,'' the
spreadsheet, or the word processor, not to mention the mouse, the
user-friendly WYSIWYG interface, the world wide web, media
streaming, music sharing or almost anything else that has caught
fire in the market, it was someone other than Microsoft who
conceived and gave life to these ideas so critical to the
realization of the full potential of computing. Furthermore, the
fact that Microsoft exercised its monopoly power over the desktop to
destroy so many of these inventors, depriving them of their just
reward for their labors, is of great concern for an economy whose
lifeblood literally depends upon the nourishment of innovation.
What Microsoft has added to the equation apart from technical
refinements is, essentially, marketing--;marketing with the
unique power that arises not because it has developed the newest or
best product for the consumer, but rather the dominance that derives
from the illegal extension of its desktop operating system monopoly.
This is not a contentious statement. The company's executives
openly acknowledge the fact, as in the Wall Street Journal profile
that ran following Mr. Gates handing day-to-day control over to Mr.
Ballmer two years ago at the height of this litigation. ``Mr.
Ballmer's ascension signals--; ``the shift in power at
Microsoft from those with purely technical minds to those who can
fuse technology with business sense and customer concerns. For
example, Microsoft's consumer chief Rick Belluzzo, a longtime
Hewlett-Packard Co. executive whom Mr. Ballmer recruited, says the
success of Microsoft's Web efforts depend more on marketing than
technology.'' David Bank, ``How Steve Ballmer Is Already
Remaking Microsoft,'' Wall Street Journal (Jan. 17 ``00)
(emphasis added).
Nor ought that statement to be surprising. It is in the
essential nature of organization that, once primacy in some endeavor
is achieved, every sinew in its corporeal body is marshaled toward
the defense of the product at the source of its power, to be free of
the unpleasantness of brutish competition, and to enjoy the quiet
life of the monopolist.
Understandable though that may be for any monopoly, including
Microsoft, this condition does not demarcate the consumer interest.
Rather it is antithetical to it. Messy but vibrant competition is
the only proven engine to maintain the pressure to constantly strive
and to provide rewards for those who succeed.
Absent clear and enforceable constraints on the extension of
Microsoft's desktop monopoly to the web and beyond, the future will
be the worse for the dead weight of their monopoly. If the trial
court's original structural remedy breaking up the operating system
monopoly from applications and the web is off the table, then it is
absolutely essential that the final judgment erect an impenetrable
wall preventing Microsoft's conduct from extending its monopoly into
the new frontiers that advanced computation have opened.
This includes a ban on bundling or otherwise tying the sale of
its Windows operating system with any other software product whose
essential purpose is to communicate to or from the world wide web or
manipulate digitized sights and sounds, all of which are outside the
OS market and none of which is mission critical for a desktop
computer to operate. At the same time, Microsoft must also open all
its evolving source code with complete documentation to competing
developers so that they are given a fair opportunity to be the First
to market for mid-ware with product that is seamlessly integrated
into the operating system. Lastly, the defaults built into the
operating system cannot steer the passive user to Microsoft's
products, such as the Word folder that Outlook Explorer continues to
steer me to when attaching fries such as this to email, impervious
to my best efforts to change that default setting.
Mind you, none of this means that Microsoft ought to be stopped
from marketing any product that they chose, so long as it is
unbundled in its own shrink wrap to insure that they are forced to
compete on a level playing field. Even if they had acquired their
monopoly power on the desktop legally--;and the trial court
found otherwise--;that tragedy would be inexcusably compounded
in a black mark on the legal system were they now permitted to
leverage that illegal monopoly into new markets and, in the process,
slow the development of future opportunities on which America's
leadership depends.
For all his accomplishments, Mr. Gates ought not to be heard to
complain about the intervention of the anti-trust laws in his path
to market power inasmuch as Microsoft only exists by virtue of the
fact that the Justice Department had previously sued IBM for anti-
trust violations, which at the time had a near monopoly in mainframe
computers. The reason IBM visited young Mr. Gates that fateful day
in 1979 in search of an outside party to provide an operating system
for IBM's first personal computer was, by moving that product
extension in someone else's hands, to throw the antitrust wolves off
their traces, not because they had any capacity or desire to develop
their own product in-house.
Now it is time for him to recognize that the sun which has
shined on him is setting. For the immediate future, Microsoft can
continue to enjoy monopoly rents on a mature business so long as it
refrains from those acts
[[Page 28348]]
found unlawful that illegally sustain its monopoly, but it must
leave future markets to be conquered only by those who fairly
prevail on the field of competition.
It is in its dynamic economy that America has defined its
greatness. In that achievement, however, lay the seeds of our own
decline if we let ourselves become prey, as so many civilizations
have before us, to subside into complacency, lured by the siren call
of convenience and its hand maiden, the status quo.
With the future of economic growth so tied to the ability to
multiply human productivity through advances in computation, it
would be a tragedy of the first order to let that happen. This case
creates the opportunity to seize a far better future than the
convenient but far more limited one promised by Microsoft.
Sincerely,
Peter Anderson
MTC-00028582
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:45pm
Subject: Anti Trust settlement
Mr. Ashcroft,
Please read the attached letter regarding Microsoft. Thank you.
Regards,
James J Lennox
MTC-00028582--;0001
James Lennox
19 Dellwood Drive
Florham Park, NJ 07932
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The purpose of this letter is to go on record as a supporter of
the settlement that Microsoft and the Department of Justice has
reached. The antitrust suit against Microsoft has drained state and
federal government funds, as well as Microsoft's; am relieved to see
that it has ended.
A inordinate amount of money has been spent pursuing Microsoft,
and this settlement finally allows an end to the litigation. The
settlement was actually harder on Microsoft than I would have liked,
but I am relieved to see an end to the dispute. In fact, Microsoft
will be required under the agreement to supply its competitors with
its intellectual property in the form of source code and design
data, which makes up the internal structure of the Windows operating
system. This does not seem fair to me, but if it ends the suit
against Microsoft, I support it.
This settlement is fair enough, and I just hope that there will
be no further litigation against Microsoft.
Sincerely,
James Lennox
MTC-00028583
From:
paul--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
I urge the Federal Government and those states involved in the
settlement of the anti-trust case with Microsoft in November 2001 to
continue with the process of settlement and see it through to its
completion. I have read the terms of the settlement and the
punishment of Microsoft is stern but fair for all involved. I and
the other consumers who ultimately drive the economy will benefit
from this settlement and that is of utmost importance today. It is
time for the Federal Government the participating States and all
those who seek to further delay this settlement to move on to other
issues by allowing the completion of this settlement and ending the
Microsoft anti-trust case once and for all.
MTC-00028584
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Please honor this settlemnt and free time money and resources to
pursue solutions to the truly outrageous abuses perpetrated by ENRON
and ANDERSEN!!!
MTC-00028585
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
The government has no business determining software/hardware
combinations how technology can be improved how technology companies
can form partnerships and how companies can manage their
intellectual property. The market and consumers have already made
that decision and make it every day in their purchasing choices.
This settlement should be approved so that we can all move on to the
business of innovation.
MTC-00028586
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Because I am old (68) I remember the growth of computer
technology and it has been great. Microsoft has led the way. But
along the way there has been a lot complaining about the leadership.
As I remember it would come from people who were experts. It seemed
they had control of their world and didnt want it to change. But
technology is about change and therefore what ever Microsoft did it
made the present better and pushed us into the future. From my point
of view we should stop all law suites aginst Microsoft and get on
with business.
MTC-00028587
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
The settlement proposal appears to be more than fair and with
all the protection features necessary.
MTC-00028588
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Throughout this process Microsoft and Bill Gates have shown no
remorse or even signs that they have infringed on the rights of
others in the marketplace. The current settlement is a sellout to
Microsoft.
They concede nothing and give nothing. The day after this
settlement concludes Microsoft will continue to bully and coerce
smaller competitors protect their programs and deny what everyone
thought that they were supposed to yield. Their lawyers will find
protection in the samll print. Microsoft gained leadership through
shrewd buisness alignments initially and afterward by borrowing
technology from others. Did Microsoft introduce the mouse or pull
down screens? No! If it wern t for other competition Microsoft would
still have us using DOS. Microsoft has continuously introduced
mediocre software and mediocre upgrades that crash and crash again.
If they were building automobiles no one would buy a second one.
Microsoft has dominated the personal computer software field with
poor products soley because they have muscled every competitor into
submission. The proposed settlment does nothing to stop this still
arrogant corporation from continuing as it has in the past. Break up
Microsoft!
Give the Nation an honest and fair playing field for all. Thanks
!
MTC-00028589
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
I am shocked that the government has brought this case against
Microsoft. Microsoft is an innovative company that does a lot for it
s consumers. It s amazing that a small business can be successful
with the tools Microsoft has developed. This case against Microsoft
needs to be dropped. It s harming consumers and our economy to
continue such a fight against a company that has done so much for
the consumers and America! Please drop this case and move on.
Settlement is needed to help the economy to move forward. I am so
disappointed in the 9 states that are continuing the fight against
Microsoft. They are obviously not listening to the American people
since most of us do not want this to continue since Microsoft has
done so much to help improve our lives. It s so obvious that the 9
states are being pushed to continue to fight Microsoft just for
money and their power-hungry competitors that have not been able to
develop products as well as Microsoft. As a consumer I choose which
products I want to use. It s not forced upon me! Therefore I m not
sure how I m being harmed. I choose what I want to use and I will
continue to choose Microsoft. Please move forward and let things
continue the way they are.
MTC-00028590
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
It is time this case is settled as determined in November and
stop any futher costs
MTC-00028591
From:
[email protected]@inetgw
[[Page 28349]]
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Leave Microsoft alone. They have simplified the use of
computers. What happened to free enterprise?
they came up with a better mouse trap and other companies want
to capitalize on their expertise.
MTC-00028592
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Leave Microsoft alone. This is the first company in the history
of the United States to be number one in the world at what they do.
I think that Mocrosoft has done a wonderful service to this country
and I do not want any damage to the company that has managed to keep
the foreigners away from the leadership in this technology.
Microsoft deserves all of our support so that they will be able to
concentrate on bringing to us the newest advances in computer
software and related technology. Sincerely Frank
Caycedo
M.D.
MTC-00028593
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
It seems the loudest voice against the settlement is Microsoft
competitors. That should indicate to the court that they intend to
use the justice system to their benifit. The settlement is just and
fair and should be granted.
MTC-00028594
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Dear Sirs I encourage you to complete and settle the Microsoft
case as soon as possible in a manner that is the least intrusive of
Microsoft. It is my opinion that this entire case is based not upon
what is best for consumers as we enjoy the greatest technological
advantage in the world here in the USA largely due to the
contributions from Microsoft but based upon the desire of others as
Larry Elison and Scott McNealey (Oracle & Sun Corporations) to
themselves be # 1 in place of Microsoft. Both have openly and
repeatedly said as much on many venues. It is time to close this
case and move on. Best
Regards
Danny Chadwell
MTC-00028595
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
The origin of Microsoft is the story of America.Competition and
innovation should be encouraged cultivated and applauded.Tempered
with some rules and regulations but not punished for triumph.Every
contest has a winner and a loser.Does not the vanquished perpetually
cry foul upon defeat?Technology today is a profusion of
opportunities let`s not support regulatory suffocation!
MTC-00028597
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Microsoft is among the few companies who allowed the USA to
become the number one software exporter in the world. Don t break or
harm a company that brings so much money to the USA and that employs
(directly and indirectly) so many people. Microsoft keeps bringing a
lot of inovations at a very low cost for the customer.
MTC-00028599
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
i disagree with the gov. interfering with microsoft s effort to
increase the use of technolgy. i wish to support the settlement that
has been worked out between microsoft and the gov! please alow us
the opportunity to determine what we want--;-now get off their
back so they can provide us with new technolgy sincerely wesley and
lois arent.
MTC-00028601
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Please settle the case against Microsoft. Pursuing the case
against Microsoft is harming consumers. Microsoft has done a lot for
me as a small business owner. I do not support the actions of
fighting Microsoft since their programs and tools have helped my
business be successful. Please settle and let us consumers decide
which products we want to use.
MTC-00028602
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Why tear down one of your biggest corporations just to destroy
them? (EX> K-Mart). You have much bigger fish to fry. Go after
the real problems--;the stock market. The manipulations of the
anaylasts have done major damage to the ecomony. Go after those
people who are one of your biggest problems instead of wrecking
another major industry who has done so much to advance technology in
the country and the world.
MTC-00028603
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Microsoft brought the computer to this country for the common
people. They have done what the government could not do. Actually
Microsoft brought the computer to the World. You should be thankful
for this. Shame on you for being so selfish. Marcia
MTC-00028604
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
It s a shame when corporations suing Microsoft can t stand
competition. It also appears our legal system is willing to continue
trying to destroy Microsoft. Why don t we just let the market system
work? Let the people buy the product they want instead of forcing
Microsoft to give incentives to it s competitors.
MTC-00028605
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
The involvement of the government in this matter disturbs me a
great deal. The tax dollars used to fund the prosecution of
Microsoft far outweigh the consumer benefit (if any) a judgment
would provide. As I see it the only people who are being assisted by
this would be AOL SUN Oracle and others. So as a consumer I would
like to once again thank you for all you ve done to help big
business in my name.
MTC-00028606
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Get on with the settlement! As long as all parties aggree let s
get back to good competitive business.
MTC-00028607
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
I think the proposed settlement is in the public interest and
should be accepted.
MTC-00028608
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
It is my belief that government has gone too far in it s
pursuit/vendetta against Microsoft. When the public buys more goods
from a certain company it is usually because that company had the
foresight to see the needs of the public. Also the public has in
essence cast it s vote by buying goods and services from Microsoft
thereby showing it s trust and it s wish to continue a consumer/
producer relationship with that company. It makes me wonder what is
next on the government s agenda to attack and break up. This divide
and conquer strategy taken by our government can next attack
anything American. The people should beware and vote accordingly to
be assured that those who intend to use big government against the
public are not in a position to do so.
MTC-00028609
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
[[Page 28350]]
I do not support the settlement/s as written with Microsoft.
Microsoft retains a monopoly on my PC. I can not remove MS Explorer
from my PC. I favor Netscape. MS has been let off much to lightly.
MS should be split up ASAP.
MTC-00028610
From:
[email protected]@
inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Settle this problem now! This suit was not necessary to begin
with. Taking up to much precious time and money of the tax payers.
MTC-00028611
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Yes I agree hope it is settled and finished let Microsoft
continue with the creative course that made it famous and helped it
bring about so many new products and ideas!! Feel Bill Gates is a
deservering man --;- let him go on and on and on .......
MTC-00028612
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
It seems clear that the settlement reached in the Microsoft case
is a good one. The most important goal should be to end the use of
the taxpayers money on such an unworthy cause. Let s end the waste!
MTC-00028613
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
THE ATTEMPTED RUINATION OF AN INOVATIVE COMPANY BY VINDICTIVE
COMPETITORS SHOULD NOT FIND AN ALLY IN THE U.S. JUSTICE DEPT..
SETTLE THIS CASE AND LET S GET BACK TO BUSINESS.
MTC-00028614
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
I am concerned that this process has draged on long enough and
$35 Million taxpayer dollers was too much to spend already.
MTC-00028615
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
It seems to me to be more a matter of extortion than justice.The
complaints were brought by competitors rather than consumers. The
anti trust and monopoly laws were intended to protect consumers yet
consumers are not for the most part the ones complaining.If
Microsoft is a monopoly then how can there be competitors to bring
about these complaints? It seems to be another case like that of the
tobacco co.s of the government seeing a huge pile of cash that it
can extort from a legal corporation operating in a legal manner
producing a legal product being used in a legal manner.
MTC-00028616
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
Although it is obvious that Gates is a communist I can t see any
lawful authority for the government to tell him how to run his
business. And just as the government asked Howard Hughes to finance
World War II who do you think the government is going to ask to
finance World War III?
MTC-00028617
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:36pm
Subject: Microsoft Settlement
This is to register my support of Microsoft s position. I think
we should support a company that is contributing to the US and world
economy by providing a good product. It frustrates me that the
government goes after Microsoft... why weren t they on Enron
instead? Not enough contributions?
MTC-00028618
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
We as Americans need to quit spending our time and valuable
economic resources and focus on the real problems. Corporations like
Microsoft keep America s economy running the war is not against
Microsoft who provides job to thousands of Americans and helps to
the financial health of our nation. Microsoft as a leading
technology improvement corporation should be an example to follow
restraining it will cause a regression of the high tech industry. I
as a consumer and concerned citizen would like to see a little bit
of wisdom in my elected representatives if they could do a better
job by focusing on real problems and keep America rolling.
MTC-00028619
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Companies against Microsoft should go to work each day to
innovate rather than collude with the state AG s to litigate! It
seems that the only way to satisfy Microsoft s competitors is to
legislate and litigate the Microsoft Corp. completely into oblivion!
MTC-00028620
From:
paulbarker--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I think that the speedy resolution of the settlement is in the
best interest of everyone--;the technology industry the economy
and especially consumers. The nation has spent enough money on this
case and should move on to other cases more important. Besides the
lengthly negotiated settlement have been endorsed across the
business spectrum. Let s just move on.
MTC-00028621
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
This a fair and reasonable settlement time to let the agreement
move forward and gauge the results speak for themselves!! Not only
have i not benn overcharged for software but have received technical
support free of charge whenever it was needed usually because of a
problem on my end....I own a lot of software and by far Microsoft
has been the most deserving of it s price....features combined with
excellent customer service far exceedes almost all other competitors
software I have used....other operating systems that i have seen are
of no interest regardless if you give it to me for free! price vs.
results is of the utmost importance....and free or cheap has it s
costs....let free compition be thy guide not lawyers andspecial
interests....i stand firmly behind a company that stands behind
their products!!!! a satisfied Microsoft customer......
MTC-00028622
From:
joe--;[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
My Opinion is that the government should stay out of technology
and the web. They are currupting freedom of speech with every attack
on the Internet & Microsoft. People shouldn t be prosocuted for
doing good business and making good products. there hasn t been a
company that is better at doing business OR making good software for
consumers and business to use. Most Commerce on the internet is
backed by microsoft servers and a technology that microsoft has
made. That awesome advance (known as ACTIVE SERVER PAGES) in the
internet is downplayed by one or more tiny little losers in the
consumer market. Most people know and love windows its on something
like 90% of consumers PCs.
Your alternatives are Macintosh or Linux. Both of these options
are either too technical or too expensive. Windows is easy enough
for most Non-Technical people to use and learn. Macintosh says they
are the easiest but with most people they dont want a Macintosh
because they look dumb or they are too expensive you choose why.
Plus $1000 for a low end computer isn t desireable for me how about
you!?
Your other option are linux and OS2 (all flavors) do you program
C? I dont and im a database administrator enough said. Another
person (or the government) might take the opposite view. Well they
are soo good they are tring to take over all the companies that make
technology. I don t believe they are tring to take over anything. I
think that the consumers are making them. they are making products
that are far better than any others.I don t work for microsoft nor
do I believe in thier mission statements. But as a consumer in the
technology field I believe in their products. So be it is I will
continue to buy
[[Page 28351]]
Microsoft products reguardless of any government regulations%
MTC-00028623
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I feel that the US Gov t cannot keep their mitts off of
anything. I feel bad for the U.S. that we should target the
entrepreneurial spirit of this country and lambaste the winners of
the contest to see who can come out on top. It is to our shame that
an outfit like Microsoft (being the biggest boy on the block by far)
is hounded by the U.S. s own legal offices. My feelings about this
whole incident lean towards the abstinence of the corporate entity
in the marketplace from today on. In other words MS would close
their doors from this point on retire those people that they can
furlough those people that can t be retired and shut the doors. If
the U.S. infrastructure begins to fail so be it. The justice dept.
caused the whole thing. If the entire economic structure of the U.S.
is placed in jeopardy because of this incident maybe the DOJ will
put noses up their own a** instead of into other peoples businesses.
MTC-00028624
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Microsoft has done more for this country than any other ten
companies put together. Stop the action that seems to be planned to
go on forever. Finalize the settlement and stop further action.
MTC-00028625
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I am encouring a swift and fair conclusion to the Microsoft
case. They should be allowed to innovate and offer the consumer
their best product. They should be fair. The consumers will
ultimately determine the software choices best suited for their
needs.
MTC-00028626
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I do not believe that taxpayer interests are served by
government continuing to hear competitor-driven antitrust lawsuits
against Microsoft. It is regrettable that the original lawsuit was
heard.
Sincerely
Jeannene Murphy
MTC-00028627
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I think that Microsoft has been unjustly treated. They happen to
make the best internet browser and operating software in the
industry. Microsoft has made is easy for first time computer users
to access the Internet and I herald them for thier efforts... Now
get off of them and let them do business.
MTC-00028628
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Microsoft should be prevented from its longstanding and ongoing
deceptive and predatory business practices. If this requires
breaking the company into two or more smaller companies so be it.
MTC-00028629
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Attention: I am writing to tell you that I believe that there
has been no consumer harm whatsoever as a result of any actions
taken by Microsoft. In fact Microsofts products and services have
led to tremendous benefits for consumers such as my myself and my
family such as better products and lower prices. Antitrust law is
supposed to be about consumer harm and on that one key issue alone
the government has failed to show any harm whatsoever. So lets back
off now and leave Microsoft alone and this will also help our
economy tremendously! Given that the economy is now in recession the
last thing we need is more litigation and regulation of the high-
tech industry. Settlement of this case is in everyones best
interests the technology industry the economy and consumers. I hope
you heed this advice! Thank you! Sincerely Lisa Ludwig
MTC-00028630
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
In my humble opinion it is long past time to cease this
ridiculous persecution of the most innovative corporation in the
nation. The benefit that has accrued to the nation from Microsoft s
standardization of software and the continued increase in the
productivity thereof are vitually beyond calculation. And what do
they get as their reward? Persecution by the government because a
passel of would-be competitors simply are not sufficiently creative
to keep up with them. Can it.
MTC-00028631
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
The Dept. Of Justice should drop it s lawsuit against Microsoft.
Do not penalize a company for success. I feel that the lawsuit
against Microsoft in early 2000 was one of the prime reasons the
stock market started it s slide in 2000. Big Business drives the
economy of this country do not stand in the way of the economy lets
get the economy rolling again.
MTC-00028632
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Please let the settlement stand. Do not pursue further action
against Microsoft.
MTC-00028633
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
you have tried to strangle the goose that laid that golden egg
and spent too much $$$ onit.
MTC-00028634
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I buy Microsoft products because I like them and I want them.
The thought that Netscape or any other company is losing market
share due to a monopoly is ridiculous. If I thought other products
had merit I would buy them. The only reason Microsoft seems to have
a monopoly is because their products are many times better than the
competition! In my opinion the plaintiffs in this case are wasting
my tax dollars.
MTC-00028635
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I believe that the Microsoft settlement is fair and equitable
for the technology industry. Further litigation would be counter-
productive to the technology industry and to the general business
climate. It is time to end this protracted court action.
MTC-00028636
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I believe this settlement proposal unfair to Microsoft and
prohibits Microsoft to conduct their normal course of business not
unlike any other corporation. Microsoft has been unfairly targeted
as an industry monster and this settlement sends the wrong message
to other businesses and consumers alike.
MTC-00028637
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I have been a consumer of Microsoft products since 1991. I have
never felt disadvantaged by their pricing of their products. In fact
my personal productivity has increased significantly every year as
their products improved through innovations they incorporated into
their software and services. I think the settlement is fair and it
is time to end this costly legal battle. Our government has better
battles to fight. I would urge the judge to pressure the remaining
State s Attorney s to also settle the case and let s move on to more
serious offenders than Microsoft which has helped make America the
World leader in technology and software.
Sincerely
[[Page 28352]]
Rober J. Ballweber Jr.
President
MTC-00028638
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I do not agree that MicroSoft has violated any antitrust laws.
If it weren t for the intellect of Bill Gates where would we be
today? He has made a difference!!!
MTC-00028639
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I would strongly encourage the resolution of this suit by
agreeing to the terms of the proposed settlement.
MTC-00028640
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Renata Hesse: Please find in favor of the Microsoft Corporation
and direct the DOJ attention at more important matters such as
corporate welfare and Enron.
thank you
Bryan Rogowski
MTC-00028641
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Our anti-trust laws should be modified to reflect the
contemporary marketplace. Microsoft's competitors took advantage of
antiquated laws to hurt the company that has provided unprecedented
benefit to our society economy productivity as a nation and ability
to comunicate globally. Free enterprise has prevailed. It is indeed
the very size of Microsoft that enabled continuous reinvestment into
improving it's products. The state of our present computing systems
is now well ahead of where it might have been were Micrsoft
restricted. Re-do the laws. Leave Microsoft alone. Tell the
competitors to take their case to the market and not the courts.
MTC-00028642
From:
ew--;[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
To whom it may concern
I believe as a citizen of this free country the government does
not have right to intervene with any company. The companies of the
United States are like the citizens of the United States. They both
have the freedom to excel. This is what makes America what it is. In
the case regarding Microsoft I believe they have their right to
excel. They company has brought us new technology has helped out the
economy and had begin a new market. The comapny should not be
punished. I believe the majority of the citizens of the United
States are grateful for what Microsoft has done and what they will
continue to do. Its a shame that my tax money is being used against
a company that wanted to excel.
Thank you for this opportunity and your time.
Take Care
Eric W. Ross
MTC-00028643
From: Rick Moore
To: Microsoft ATR
Date: 1/28/02 4:42pm
Subject: Microsoft Settlement
Dear Sir or Madam,
The proposed settlement does not go nearly far enough in
stopping microsoft's egregious behavior. The company should be
dealt with decisively. How many anti-trust suits do my tax dollars
have to fund. You have a mandate to protect the consumer and
competition. Microsoft has repeatedly shown contempt for our
government and our people. If we are to fight terrorism around the
world we should begin at home. This monopoly only inhibits the
growth of our economy, It does not represent it. As a business
manager I am forced into disadvantageous purchasing decisions as a
direct result of microsoft breaking compliance with technologies
before their life cycles are realized. We are forced to spend
capital to replace equipment that is not broken just to remain on a
platform that they support. You let the best remedy escape when you
opposed the break up now you don't even have an enforceable
doctrine. Please for all our sakes take stronger action. I just
don't want to continue to buy lesser products because I have no
choice.
Thank You
Richard Moore
MTC-00028644
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
I am computer professional who for 20 years has worked for large
companies small startups and my own business. I urge the court to
accept the proposed settlement. Further litigation will severely
disrupt our industry and only serve those companies that directly
compete with Microsoft. This case has never been about the interests
of consumers or software developers. We have voted overwhelmingly in
the marketplace for Microsoft products. They have been the
underpinning of the great productivity and economic gains which we
experienced in the past decade. The courts should not be used by
corporations with inferior products as a mechanism for overturning
the will of the free market. I resent the use of my hard earned
taxpayer dollars to reverse my well thought out choices. I urge the
court to settle this case now.
Sincerely
Casey Simon
MTC-00028645
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Best would have been for the government to halt the lawsuit. But
this is acceptable
MTC-00028646
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 4:37pm
Subject: Microsoft Settlement
Judge Kollar Kotelly RE: U.S. vs. Microsoft Your Honor The U.S.
Government has no business going after Microsoft in the first
place--;Bill Gates started in a garage and made it
work--;his whining competitors should get over it. Please let
Microsoft get back to business. One thing about Microsoft is that it
is a U.S. company--;please free it from U.S. and state lawsuits.
We need good products to compete in the world market. Thank you Sir.
Sincerely H. David Young 7165 E. St. Rte. 41 Troy OH
45373-;9020 937-;335-;6422
MTC-00028647
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
My thoughts concerning the settlement are few and simple. I
believe that the government should have little to do with
obstructing the free actions of the marketplace. To my knowledge
Microsoft has not used force to compel anyone to purchase their
products.
MTC-00028648
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
On behalf of the Ohio Taxpayers Association and our over 5,000
Ohio members I am writing in support of the proposed settlement
between the Justice Department and the State of Ohio. No further
legal action is necessary or welcomed. The settlement provides a
fair and reasonable settlement that benefits technology consumers
and brings to end this lengthy case. Thousands of Ohioans are
employed in well paying jobs because of the work of Microsoft in
addition many more Ohioans are shareholders in the company.
Settlement allows Microsoft and the rest of the technology industry
in Ohio get back to work. The only thing this lawsuit has succeeded
in doing is driving down the share prices of technology companies
and wasted taxpayers dollars The positive benefits are numerous to
this agreed upon settlement. Implementation of the settlement is a
positive step for the American and Ohio taxpayer.
Sincerely
Scott A. Pullins
Ohio Taxpayers Association www.ohiotaxpayers.com
MTC-00028649
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
This settlement is for the COMPETITORs NOT the consumer !!! I
always thought a free market system would let the market decide. We
are not a free market system when the government dictates the market
especially when it has been obvious over the last 4 years of this
lawsuit that the competitors are
[[Page 28353]]
using our own government to gain their own advantages. Not many
consumers in the US today believe this lawsuit has anything to do
with them. We all know it has to do with jealously and posturing by
the competitition.
Please stop this nonsense and let consumers decide what is best
for them. Our dollar speaks loudly in a free market system.
MTC-00028650
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
The settlement action recently undertaken between the Justice
Department and Microsoft Corp. represents a fair and unbiased end to
the legal battles that have gone on for these several years. To
allow Microsoft s competitors to block this just settlement to aid
their own deficient products would be a travesty and not at all in
line with the fair competitive nature which benefits both consumers
and producers.
MTC-00028651
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
Though I do not believe that justice should be swayed by the
majority's opinion for majority'ssake I provide my opinion here
because the Microsoft case has been made open for public comment.
The American government has taken Microsoft to task for being a
productive innovative and successful company. The purpose of the
government is to defend its peoples' individual rights these rights
are impinged upon when force is used to undermine another's ability
to think live or produce through free choice. Controls on legitimate
spending contracts and productivity undermine civilized human
behavior and only cause more controls. Microsoft has settled rather
than fight the court system with its energy money and time. But the
justice system is wrong. These laws should never have existed in
America. There should be a complete separation between economy and
state only cases of national security fraud and broken contract
should be business matters of the court domain. To punish Microsoft
for being so successful is the equivalent of punishing an individual
for being good at living. I can only hope that the precedent set by
the outcome of this case does not seek to completely undermine all
that America stands for.
MTC-00028652
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
I think that the settlement between Microsoft and the state
attorneys general is fair and reasonable. I think it is time that
this lengthy process is over. The parites that are upset about the
settlement obviously want to see Microsoft crushed at the hands of
the federal government. If these parties were genuinley interested
is fairness which is what they claim then they should endorse the
settlement as well. The settlement is in the best interest of the
nations economy and the technology industry.
MTC-00028653
From: Doug Riddle
To: Microsoft ATR
Date: 1/28/02 4:47pm
Subject: Microsoft Settlement
To Whom It May Concern:
I think the increasing frequency of computer viruses and denial
of service attacks only serve to underscore how important
competition is in the market place, and how poor quality and service
can get in the face of a monopoly. Microsoft is knowingly producing
shoddy products because they can force suppliers to comply with
their demands. They use their size, market share and media assets to
avoid competition, while their lawyers tie up what competition and
complaints there are. I do not want to see them shut down, but I
want real accountability to the public built into the remedy. Please
help see to it that any proposed settlement has teeth, or do not
settle.
Warmest Regards,
Doug Riddle
http://www.dougriddle.com
MTC-00028654
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:38pm
Subject: Microsoft Settlement
This ruling against Microsoft is unjust. Settlements like these
will scare any company into becoming too successful. The evidence
against Microsoft failed to prove that Microsoft is a monopoly. This
was just an action by the business-hating Clinton Administration.
Don t Hang Microsoft out to dry.
MTC-00028655
From: Griffin, Joanne
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:45pm
Subject: I support Microsoft settlement
Please see my attached memo. THx.JSG
CC: ``fin(a)mobilizationoffice.com''
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to you to express my support for the settlement of
the anti-trust lawsuit against Microsoft. The agreement that has
been reached will not only help the economy, but it will ensure that
in the future, anticompetitive corporate action will not be
tolerated. Microsoft has not been let off lightly and the government
has proven its point.
The biggest provision of the settlement is the fact that
Microsoft will not attack other computer manufacturers who produce
rival products. This will definitely open up the market to fair
competition without fear of reprisal. I support Microsoft's position
and also think that it is necessary for small business to flourish
in partnership with larger companies. This settlement allows this to
happen.
Three years is long enough for a case to continue. Microsoft has
agreed to this settlement and now it is time for the government to
respond in kind. Anticompetitive laws have benefited greatly from
the result of this case and so have all sides concerned. Let
Microsoft continue to develop software that benefits us all without
the threat of further litigation hanging over the company. I urge
you to accept this settlement. Thank you.
Sincerely,
Joanne Griffin
1152 Center Drive
Saint Louis, MO 63117
MTC-00028656
From: Bruce Nazarian
To: Microsoft ATR
Date: 1/28/02 4:49pm
Subject: Microsoft Settlement.
Dear DOJ
The fact that this government has backed down from properly
seeking a strong settlement from Microsoft, in view of the finding
that it has promulgated monopolistic behavior is distressing. In my
view, and that of MANY literate computer professionals, what
Microsoft has wrought on the Country, World, and the Computer
business at large is nothing more than a thinly -veiled attempt to
create a monopolistic stranglehold on how we compute, and what we
compute with.
If there needs be any further evidence about how ineffective
Microsoft is at innovation, and how little they care about anything
other than Market share, it would be this: Their Latest ``state
of the art'' operating SYstem Windows XP, is so full of
security breaches and bugs that it makes matters WORSE rather than
better. And they KNOW it! In addition, they are patching these flaws
so quickly and so often that it is virtually impossible for IT
professional to maintain a stable computing environment in their
businesses.
I, for one, CATEGORICALLY REFUSE to operate their software, and
avoid using the Windows operating system completely. Many IT
professional are now switching to UNIX, Mac OS X and LINUX as a
stable alternative.
i wish that DOJ would SERIOUSLY REVIEW their proposed settlement
(which has been watered down significantly since, coincidentally, a
REPUBLICAN administratin took power) as it DOES NOT provide
protection for the American Computing Public, and, in fact, lays the
way clear for Microsoft to continue to promulgate Monopolistic
control of the way we work--; Iff you need more proof, look
seriously as the .NET Strategy, and their abusive software upgrade
``purchase'' policies.
I am disappointed with DOJ being prepared to THROW AWAY the ONLY
opportunity we have to remedy Microsoft's egregious business
practices, and to properly punish them. Please do the right
thing--;since you won't break them up, at least LEVEL THE
PLAYING FIELD so they can no longer usurp INNOVATION from third
parties and call it WINDOWS. LOOK AT WHAT THEY DID TO NETSCAPE!!!!
Mad, you're damn right I'm mad--;I pay your salaries! Now please
do the will of the people, NOT the will of the politicians. WE WANT
THIS ABUSER PUNISHED!
[[Page 28354]]
Bruce C. Nazarian
Common Citizen, and NON-Mircrosoft user
MTC-00028657
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:49pm
Subject: Microsoft settlement
My wife and I enjoy the quality and reliability of Microsoft
products. We have used competitors products in the past and have
found them to be inferior time and time again.
We think it would be in everyone's best interest to resolve the
case. We may just be two individuals in the population but our
opinion is that this drama has gone on too long as it is. The
company that provides a superior product at a reasonable price
should not be ``bashed'' just because it is preferred by
the user.
Approximately fifteen years ago a competition issue arose with
telephone companies and I have not experienced the same degree of
satisfaction in telephone service since the breakup of AT&T. I
would hate to see history repeat itself.
Maybe the time and monies used to prosecute Microsoft could be
better used investigating the pricing and merger activities within
the cable industry. At the consumer level these appear to be unfair,
monopolistic, and not in the best interest of the public.
Wesley & Lynn Sharpe
MTC-00028658
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 4:49pm
Subject: Microsoft Settlement
Dear Mr Ashcroft:
The settlement between Microsoft and the Department of Justice
in regards to the antitrust suit is a very fair settlemant for all
sides involved. I feel that there is no need to continue litigation.
It is a wast of time and money. the only people who profit from this
are the lawyers and the companies whose product are less popular
with consumers.
I feel that the settlement is a good thing and that it should be
finalized.
Regards Orrin O. Stromswold 2706 169th Ave N.E. Bellevue, Wa.
98008
MTC-00028659
From: Reid Flickinger
To: Microsoft ATR
Date: 1/28/02 4:49pm
Subject: Microsoft Settlement
Good Afternoon,
As a professional with 20 plus years of computer technical
experience and a decade-long owner of several successful computer
service companies I feel that I have a relevant perspective on this
case that should not be ignored. Important background to consider
first is that I initially gained experience with Microsoft's
competitor Apple, followed by various other competitor's systems. I
was slow to move to Microsoft's products but eventually found that
they offered superior products and support. As a developer in the
computer business, they were far more responsive to my needs than
Apple and delivered more cost effective solutions. Since then on
countless projects, this has been the case and it is for no other
reason then Microsoft's ability to offer better products and support
with lower total-cost-of-ownership that they have my business.
This case was never created for or even by consumers but for the
benefit of failed market competitors to Microsoft. It was presided
over by a judge with a personal axe to grind who was incapable of
understanding anything technical. The prosecution of Microsoft was
an insult and the behavior of the court was worse. Microsoft's
proposed settlement is more than fair and should be accepted.
Thank you for your time,
Sincerely,
Reid Flickinger
Reid Flickinger
Chief Technical Officer
MFC Inc, SaleView Systems & Contact24
Continuous Web Monitoring and Notification
[email protected]
925.831.8942 Ext. 11
www.saleview.com & www.contact24.com
Danville, California U.S.A
CC:[email protected]@
inetgw,letters@capitalis...
MTC-00028660
From: Minoofar(a)cox.net
To: Microsoft ATR
Date: 1/28/02 4:48pm
Subject: Microsoft
44 Blue Horizon
Laguna Niguel, CA 92677
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I was recently informed that the DOJ has asked for the public's
opinion on the antitrust lawsuit against Microsoft. As I feel very
strongly about this issue, I decided to take full advantage of this
opportunity. I am an avid support of Microsoft and if this
settlement brings closure to this three-year battle against them,
then I support the settlement as well. In my opinion, this lawsuit
as done nothing but attempt to tear down the IT industry leader. In
the process, major damage has been done to this industry and the
economy. It is time to bring closure to this case and I hope that
you will make the necessary decision to ensure this.
I have a hard time understanding the reasons behind the
States'' dissatisfaction with the settlement. The settlement
seems fair and serves to ensure that future antitrust violations
will not occur. Microsoft has even agreed to alter business
practices that were not found to be unlawful, just so that this
matter will close quickly. As for Microsoft competitors, they should
be more than pleased that Microsoft has agreed to grant them much
easier access to their company codes and interfaces. This is the
first time that this has happened in an antitrust case. Additionally
Microsoft will adhere to findings by a Technical Committee as it
relates to compliance disputes.
I am confident that I am one of many people who feel the same
way about this matter and hope that my comments and those of others
will play heavily on your decision to wrap this matter up quickly.
Thank you for taking the time to consider my thoughts on this
matter.
Sincerely,
Albert Minoofar
cc: Representative Darrell Issa
CC:[email protected]@
inetgw
MTC-00028661
From: Liz Bradley
To: Microsoft ATR
Date: 1/28/02 4:51pm
Subject: Microsoft anti-trust settlement
Greetings--;
I am a professor of computer science at the University of
Colorado at Boulder. I am a lifelong Unix user, but my professional
life has been significantly affected by the Microsoft monopoly, and
I would like to make a few points about the settlement.
Microsoft has a long history of business practices that
intentionally and effectively tie its users'' hands--;in
ways that benefit Microsoft, and that perpetuate and extend its
monopoly. Their business practices are predatory, and their design
choices have made it difficult for anyone to use any kind of
competing software or format. This is true from the system level
(e.g., the netscape lockout) to the social/practice level--;for
example, how hard it is to get a Microsoft email program to send
email messages in anything but Microsoft-proprietary format.
This last example, which hits me many times every day, may seem
petty, but it is really pernicious--;in the way that my history
classes taught me that the anti-trust act is intended to fix. I get
email from a non-computer-scientist colleague, complete with a Word
attachment. I email back, asking for a lingua franca format like pdf
or ascii. My correspondent can't figure out how to do the
translation, eventually gets frustrated, and castigates me for not
``getting with the program'' and using Microsoft. Since I
use computers professionally, doing so is not an option; moreover, I
know enough to not succumb to that kind of pressure. Neither of
those things is true for most people, and the pressure propagates
the Microsoft monopoly.
Encouraging an entire community of users to use a single set of
proprietary software is not only a matter of monopoly. It is also a
matter of security. Microsoft's email programs, for example, not
only force their naive users to send Microsoft-format attachments,
but also make those users vulnerable, because the defaults are set
up so incoming attachments are automatically ingested. Moreover,
those programs are full of security holes. This combination causes
dozens of virus attacks to propagate around the world every year. My
colleagues'' computers are routinely paralyzed during these
events, but I have never--;NEVER--;been affected by a virus
in my 20 years at MIT and Colorado.
It is well known in ecology that a diverse population is far
more robust. The goal of Microsoft's direct and indirect pressure is
a homogeneous population of computer users running Windows. A single
smart hacker would be able to take down this entire country if they
succeed.
File formats should be open, just like the design of a car
interface --;- the steering
[[Page 28355]]
wheel/accelerator layout, etc.--;is open. Competitors should not
be smothered using heavy handedness. (This is EXACTLY what catalyzed
the suit that ended up in Sherman!) The open-source community, in
particular, should be allowed to thrive, not squelched.
Manufacturers should be able to install any OS that they can sell,
without fear of retaliation. That kind of force is the very
antithesis of the free and open market.
Sincerely,
Elizabeth Bradley
Boulder CO
CC:[email protected]@
inetgw
MTC-00028662
From: Oliver Harris
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:47pm
Subject: Settlement
Our government or any part thereof, should never be used as some
sort of wrecking ball used against those entities which through
superior strategy and innovation realize the maximum benefits of our
capitalistic system. It is through such practices that the consumer
realizes the greatest benefits of innovations at competitive market
costs.
Therefore, it is a credit to our system of justice and fairness
that the anti-trust case against Microsoft, encouraged and driven by
those entities that choose to whine rather than compete, be
concluded in this settlement rather than some heavy handed judgement
by the DOJ against the Microsoft Corporation.
Thank You.
Oliver Harris
Loan Officer
CWCapital, Mid-Atlantic
6395 Dobbin Road
Suite 206
Columbia, MD 21045
410.772.2260 x4
410.772.0503
[email protected]
MTC-00028664
From: Jan Chesne
To: Microsoft ATR
Date: 1/28/02 4:50pm
Subject: Microsoft Settlement
The purpose of the settlement, I hope, is to restrain
Microsoft's monopolistic tactics in the future. Allowing them to
donate their software and compatible hardware to schools would be a
step in the wrong direction, only furthering their monopoly.
Anything to equalize the playing field would be helpful, e.g., let
them purchase competitors'' products for the schools.
I believe MS should be required to make most of its products and
Web services compatible with all other systems. Windows should be
provided separately from other MS products (Outlook Express, etc.)
so that hardware makers could include competing products and users
could make easier choices.
Good luck.
Janet Chesne
61 Village Park Way
Santa Monica, CA 90405
MTC-00028665
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:51pm
Subject: Microsoft Settlement
We strongly support the settlement and want to see this put
behind us. Microsoft is one of America's great companies and has
been punished enough. Let's move on.
Albert Strong
Privo.com
CC:[email protected]@in
etgw
MTC-00028666
From: Danny O. Bielby
To: Microsoft ATR
Date: 1/28/02 4:52pm
Subject: Microsoft Settlement
Freedom to inovate.
If this was a drug, wouldn't you have a patent on it. You can't,
what's new today is old tomorrow invclving the internet. In some
cases there having law suits today and making the rules tomorrow. I
have a little company,so should I automaticaly sue a bigger company
with not much of a cause. Who knows, I might win, if not it will be
a tax deduction.
Thank you, Danny O. Bielby
MTC-00028667
From: philippa jeffery
To: Microsoft ATR
Date: 1/28/02 4:56pm
Subject: Microsoft Settlement
Dear Sir/Madam,
Please find attached the Tunney Act Comments for Citizens
Against Government Waste.
Philippa Jeffery
Media Associate
Citizens Against Government Waste
1301 Connecticut Ave., Suite 400
Washington, DC 20036
202-;467-;5318- Direct Line
202-;467-;4253- Fax Number
[email protected]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff
Civil Action No. 98-;1232 (CKK)
V.
MICROSOFT CORP.,
Defendant
COMMENTS ON THE PROPOSED SETTLEMENT BY:
Citizens Against Government Waste
Thomas A. Schatz
President
1301 Connecticut Ave., NW--;Suite 400
Washington, DC 20036
(202) 467-;5300 FAX: (202) 467-;4253
On behalf of the one million members and supporters of Citizens
Against Government Waste (CAGW), I am providing comments on U.S. v.
Microsoft pursuant to the Tunney Act. CAGW supports the settlement
as being in the public interest and opposes further litigation in
this case. Further expenditure of tax dollars and government
resources on this case, which has stifled technology, innovation,
and investment at a time when the economy is in recession and the
nation is at war, would not benefit the American people.
CAGW is a nonprofit, nonpartisan organization founded in 1984 by
J. Peter Grace and Jack Anderson following the report of President
Reagan's Private Sector Survey on Cost Control, better known as the
Grace Commission. Since its founding, CAGW has been researching,
publicizing, and working to eliminate wasteful government spending.
In particular, CAGW has exposed mismanagement of governmental
resources in the technology sector, such as incompatible computer
and accounting systems, as well as billions of dollars spent on
hardware and software that simply did not work. On the basis of our
18 years of nationally recognized expertise representing the
interests of American taxpayers, we are submitting our comments to
you today.
On November 6, 2001, Microsoft, the Department of Justice (DO J)
and nine states agreed to a Proposed Final Judgment (PFJ) in the
lawsuit against the company. As the overriding element of the Tunney
Act is whether an antitrust settlement is in the public interest,
CAGW submits that the PFJ clearly meets this standard.
CAGW estimates that to date the Microsoft lawsuit has cost
taxpayers more than $35 million. It has also hobbled one of
America's premier high-tech engines of growth at a time when we need
to jump-start our economy. The PFJ is fair to all sides in the case,
including:
Microsoft, which will continue to be able to provide new
software that integrates new products;
Competitors, who will have more access to the Windows platform
to incorporate their products or make them compatible;
Software manufacturers, who will get back to the business of
creating innovative products;
Consumers, who will have more choices among software products;
and,
Investors, who will have stability in the marketplace.
Perhaps of greatest benefit to the American people, the settling
states will avoid additional costs and now be able to focus their
time and resources on matters of far greater significance. As noted
by District Court Judge Colleen Kollar-Kotelly, who pushed for a
settlement after the attacks of September 11, it is vital for the
country to move on from this lawsuit. The parties worked extremely
hard to reach this agreement, which has the benefit of taking effect
immediately rather than months or years from now when all appeals
from continuing the litigation would finally be exhausted.
Furthermore, Microsoft, DOJ and the nine states have accepted the
settlement as better than continued proceedings.
Specifically, Microsoft will not be broken up and will be able
to continue to immolate and provide new software and products.
Software developers and Internet service providers (ISPs), including
competitors, will have unprecedented access to Microsoft's
programming language and thus will be able to make Microsoft
programs compatible with their own. Competitors also benefit from
the provision that frees up computer manufacturers to disable or
uninstall any Microsoft application or element of an operating
system and install other programs. In addition, Microsoft cannot
retaliate against computer manufactures, ISPs, or other software
developers for using products
[[Page 28356]]
developed by Microsoft competitors. Plus, in an unprecedented
enforcement clause, a technical committee will work out of
Microsoft's headquarters for the next five years, at the company's
expense, and monitor Microsoft's behavior and compliance with the
settlement.
The settlement is compatible with the findings of the U.S. Court
of Appeals for the District of Columbia, which substantially
narrowed the scope of legal liability and instructed the U.S.
District Court to created remedies that fit the ``drastically
altered'' findings. As Assistant Attorney General for Antitrust
Charles James said in testimony before the Senate in December:
Of the twenty anticompetitive acts the court of appeals
reviewed, it reserved with respect to eight of the acts that the
district court had sustained as elements of the monopoly maintenance
claim. Additionally, the DC Circuit reversed the lower court's
findings that Microsoft's ``course of conduct'' separately
violated Section 2 of the Sherman Act. It reserved the district
court's rulings on the attempted monopolization and tying claims,
remanding the tying claim for further proceedings under a much more
difficult rule of reason standard. And, or course, it vacated the
district court's final judgment that set forth the break-up remedy
and interim conduct remedies.
Acceptance of the PFJ would send a clear signal to the nine
remaining states and the District of Columbia opposed to the
settlement that their remedy is not appropriate given the findings
of the court of appeals. The alternative proposed by the remaining
plaintiffs appears to be based on the original district court
decision, which is no longer relevant. Dragging the proceedings out
further, with a new remedy hearing, a new district court decision,
another appeal to the DC Circuit, an appeal to the Supreme Court,
and remand back to the court of appeals and district may be in the
interests of Microsoft's competitors, but it is not in the public
interest.
Most importantly, this settlement is fair to the computer users
and consumers of America, on whose behalf the lawsuit was allegedly
filed. Consumers will be able to select a variety of pre-installed
software on their computers. It will also be easier to substitute
competitors'' products after purchase as well. The PFJ even
covers issues and software that were not part of the original
lawsuit, such as Windows XP, which will have to be modified to
comply with the settlement.
Public opinion is squarely in favor of settlement. Voter
Consumer Research conducted polls of 1,000 eligible voters in Utah
and Kansas in November, 2001, and opposed further action by their
state attorneys general following the settlement by a 6 to 1 margin.
This is an even greater percentage than previous polls concluding,
by a 2 to 1 margin, that the lawsuit brought by DOJ and the 19
states was a waste of tax dollars.
The Microsoft case was supposedly brought on behalf of American
consumers, who have paid the price of litigation through their
taxes. Investment portfolios have been substantially devalued during
this battle, and now more than ever, the country needs the economic
stability this settlement can provide. This settlement is in the
public interest, and should be accepted without change.
Respectfully Submitted,
Thomas A. Schatz
President, Citizens Against Government Waste
MTC-00028668
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:51pm
Subject: Microsoft Settlement
Attn: Renata B. Hesse
Antitrust Division
U.S. Dept of Justice
In my opinion, the terms of the findings of the Court of Appeals
ruling has been met by Microsoft who has not only met but gone
beyond said findings. Microsoft has agreed that the terms are
reasonable and fair to all parties involved. It's time to drop the
matter and allow Microsoft, as well as the industry, to move
forward. Please NEVER forget what MICROSOFT has done for the
INDUSTRY.
Thank you for your attention to the foregoing.
Sylvia Earnst
MTC-00028669
From: Billy SG McCarthy
To: Microsoft ATR
Date: 1/28/02 4:50pm
Subject: Lack of Punishment
To whom it may concern,
I'm writing as a concerned citizen, and as a computer science
major to express my feelings about the settlement reached between
the United States Department of Justice and Microsoft. Like many
others out there, I do not think that the settlement reached goes
nearly far enough to punish Microsoft for it's illegal actions.
Also, the settlement does not give anyone any real power to prevent
any further antitrust issues from arising.
Microsoft was found guilty of numerous violations of antitrust
law, and they are walking away pretty much unscathed. It feels like
the US DOJ doesn't have the stamina to fight against a huge
corporation, and therefore took the easy way out. This is not right.
It is the government's job to find a remedy that is in the best
interest of the citizens of the United States of America. We are the
ones who were injured by Microsoft's anticompetive actions, and we
want to make sure that will never happen again.
Thank you for your time, and I hope that this joke of a
settlement is never agreed upon.
William SG McCarthy
18 Allston St.
Allston, MA
USA
MTC-00028670
From: Christina Jordan
To: Microsoft ATR
Date: 1/28/02 4:52pm
Subject: Microsoftsettlement
The anti-trust lawsuit the government filed against Microsoft
was the beginning of the recession. Let it go so we can get our
economy going again!
Christina Jordan
MTC-00028671
From: John Roth
To: Microsoft ATR
Date: 1/28/02 4:52pm
Subject: Microsoft Settlement
Dear Ladies and Gentlemen:
I would like to register my deep dissatisfaction with the
settlement terms offered by the Justice Department to Microsoft.
These terms are not in the public interest; rather, they seem to
serve only the interest, not even of the shareholders, but of the
executives of a few powerful corporations, including Microsoft.
I will not bother to repeat the observations of, for example,
Consumers Union, but rather focus on one specific failure of the
settlement: namely, to address the concerns of open-source software
development.
Many the most important tools that I use in my work as a
software developer are ``open-source'' software, including
the GNU/Linux operating system. These are non-commercial products
with many qualities that Microsoft products have never achieved,
such freedom from crashes, support for networking with standard
security protocols, compatibility between versions, and adaptability
which make them ideally suited to software development. These
products are developed largely on the volunteer work of thousands of
developers; their quality stems directly from the openness and
liberality of the copyright. Their low dollar cost does not reflect
their value.
One of the greatest challenges in open-source software
development is to implement interfaces to obfuscated, proprietary
protocols that companies such as Microsoft develop to lock-out
competitors. This point that was not lost on the Department of
Justice only a year or two ago. Unfortunately, the terms of the
settlement enable Microsoft to continue to use its monopoly power
against open-source products, since many of the remedies that are
supposed to prevent Microsoft from dominating by implementing
proprietary protocols are conditioned on there being an economically
viable corporation, rather than a more reasonable definition,
perhaps in terms of the number of users represented.
This is a slap in the face to open-source developers, absolutely
contrary to the public interest, which it is the Governments''
special responsibility to protect, and a failure to enforce the
spirit of anti-trust law, which is to prevent mere market domination
from stifling competition. There is no real wealth created by
Microsoft's use of proprietary protocols; only a guarantee of its
ability to stifle alternative platforms in the future.
Your Truly,
John Charles Roth
MTC-00028672
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:52pm
Subject: Microsoft Settlement
Greetings...
As a long time computer user (since ``82) and software
developer (since ``85), I have been extremely bothered and
dismayed at the methods that Microsoft has utilized in its business
practices. However, because of the
[[Page 28357]]
combination of Microsoft's massive pocketbook and their ability to
intimidate others within the industry, it seemed the the only relief
from Microsoft's tactics lay with the anti-trust efforts of the US
Govt and the various states. When Microsoft was found guilty of
predatory monoplistic behavior, Judge Jackson's orginal solution was
right on target for what was deserved and needed to remedy the
actions of Microsoft.
After this valid punishment was overturned on a technicality, an
settlement was proposed which does nothing but provide Microsoft
with a slap on the wrist and a promise to ``go forth and sin no
more''. This is the same ``punishment'' that
Microsoft received in ``94.. after which they went out and
obliterated Netscape from the Internet, held PC makers hostage to
their demands for the desktop and threatened Apple Computer with
actions that would have destroyed Apple unless Apple played the game
the Microsoft way.
Microsoft has truly proven itself to be a company that cannot be
trusted, despite all of Bill Gates'' ``aw-shucks''
mannerisms and speeches. This is a company that choses to not play
by the rules or behave like a responsible corporate citizen. Just
like with any other individual who continually operates outside the
rules, the Federal and State governments MUST PUNISH Microsoft in a
way that is comenserate with their crimes.
The proposed settlement does not in any way begin to match what
the court documents clearly show that Microsoft deserves. It should
be thrown out and a new plan devised that exacts from Microsoft the
punishment it deserves.
Thank you.
Dean Gillispie
[email protected]
(281) 280-;2883 (voice)
SSTF-Vehicle Sys Raytheon Technical Services Co. Houston, Texas,
USA
MTC-00028673
From: Anthony Correia
To: Microsoft ATR
Date: 1/28/02 4:52pm
Subject: Government Persecution of Big Business
Stop ``killing'' Big Business! Get on with the job you
all are getting paid for with our tax dollars--;
constitutionally--;to provide for the common defense of the
``several states'! Fight TERRORISM not American companies that
hire citizens who pay the very taxes you people frivolously fritter
away on ``unjust'' causes''.
If we find crooks in our American industries, there are many
legal and local authorities to chase them and prosecute to the
``fullest extent of the law''.
I pray to God that this message is CLEAR enough for the least of
you and your limited understanding of the Constitution!
An angry Korean ``Conflict'' veteran...
MTC-00028674
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:54pm
Subject: Microsoft Settlement
Dear DOJ,
I strongly object to the proposed settlement with Microsoft. It
is a gross and negligent miscarriage of justice.
I have some unique first-hand knowledge of the kind of financial
damage that Microsoft has inflicted upon other companies. I know
this because I was at the heart of the project at Compaq that
resulted in Microsoft terminating Compaq's license to Windows.
Let me provide some background for you. I am the former product
manager at Compaq Computer Corporation who was responsible for the
Compaq/AOL deal in 1995. I worked for Rod Schrock, who was Vice
President of the consumer division. You used several of my email
messages in your case against Microsoft.
In 1995, I was placed in charge of defining Compaq's consumer
online strategy. I proposed a relationship with America Online, one
which was great for America Online, and even better for Compaq. It
was worth HUNDREDS OF MILLIONS OF DOLLARS IN INCREMENTAL PROFIT to
our business unit. The deal, in a nutshell, involved Compaq heavily
promoting the AOL service, in exchange for AOL giving Compaq a
significant ongoing revenue share.
Microsoft heard about this forming relationship. They contacted
us and asked that we work with them instead of AOL, to promote their
new online service code-named Marvel (now known as MSN, the
Microsoft Network). We responded that we would be happy to work with
them, but we would expect them to pay us in a similar fashion to how
AOL was to pay us.
Their response? I'll paraphrase: We are Microsoft. We own the
customer, not you, Compaq. You Compaq have three choices:
1) Do the deal with Microsoft. We will pay you NOTHING, but
we'll have a closer relationship, with various intangible benefits
(wink wink lower price on the OS, etc.)
2) Cancel the deal and do it with nobody. We are OK with that.
3) Do the deal with America Online. WARNING: IF YOU PURSUE THIS
OPTION, WE WILL PUT YOU OUT OF BUSINESS.
Our team at Compaq reviewed the situation, and concluded that
Microsoft must be bluffing. They couldn't do it, because it would be
a blatant violation of anti-trust laws. We decided to proceed with
the deal.
Shortly afterward, Microsoft sent us a letter telling us that we
were in violation of their Windows License agreement, and we could
no longer sell PCs with Windows installed. Our license to Windows
was terminated. Since Microsoft Windows is the only viable operating
system on the market, we were effectively shut down as a company. As
Microsoft had threatened, THEY WERE PUTTING US OUT OF BUSINESS!!!
Needless to say, we ended up having to quickly appease Microsoft
and redo the deal with AOL, dramatically watering it down and making
it effectively into a nothing deal: no substantive benefit to AOL,
no substantive benefit to Compaq.
If this kind of behavior is not a flagrant abuse of monopoly
power, I don't know what is. Microsoft regularly wields this kind of
abusive power. They have it, and they use it most aggressively.
Speak with any of the myriad companies that have fallen victim to
Microsoft's stranglehold. Their corpses litter the high-tech
industry.
Just how powerful is Microsoft? Powerful enough to put just
about any company out of business in short order if they were
determined, including other huge powerful companies such as Intel.
How would they accomplish such an impossible-sounding feat? Simply
by making the following announcement: ``Microsoft today
announces a strategic relationship with Advanced Micro Devices.
Beginning with the next version of Windows, which will ship in six
months, only new co-branded AMD/Microsoft processors will run
Windows optimally. Legacy Intel processors will still run Windows,
but only at 1/4 speed, and only for a limited time. Microsoft
strongly encourages its customers to begin migrating to the AMD/
Microsoft platform immediately, in preparation for the release of
the exciting new Windows system.''
The proposed settlement does little or nothing to prevent this
kind of behavior in the future. The absurd thing is, it actually
gives Microsoft a government-sponsored leg-up to claim an additional
monopoly in one of the rare markets that they don't currently own:
the education market.
Microsoft (and some supporters) say that ``Microsoft is
good for the U.S. economy... they are a brilliant high-tech success
story for America ... don't punish successful companies.''
There is a half-truth in what they say, but their logic is flawed.
By that line of thinking, Standard Oil would never have been broken
up. In truth, Microsoft has not been a strong force for innovation.
To the contrary, they have systematically stifled innovation. Their
policy seems to be ``crush anything that Microsoft doesn't own
and control''.
We will never know how much innovation and economic growth might
have emerged from companies that fell victim to Microsoft's control
ploys. However, we can guess by looking at one rare example where
they failed. We know that Microsoft did not want the open Internet
to happen, that instead they had a vision of a Microsoft-owned-and-
controlled worldwide network (see early presentations on Microsoft's
Marvel Project). In this case, for once, they did not move quickly
enough to stop this emerging threat, and by the time they began
their attack, they met a force so powerful that even they could not
stop it. We now know just how much benefit the U.S. and the world
have realized from the advent of the Internet. How many other
promising technologies and markets has Microsoft successfully
stopped? How much economic growth has been stunted by the Robber
Baron of high-tech? The time has come to force Microsoft to play
fair.
I would be glad to discuss this further with anyone from the
DOJ. Please contact me at your earliest convenience.
Thank you,
Vaughn Rhodes
Formerly Strategic Planning Manager (and Product Manger) at
Compaq Computer in Houston, TX
650-;938-;8587 (home)
650-;279-;6221 (cell)
[email protected] (work email address)
[[Page 28358]]
[email protected] (home email address)
CC:[email protected]@
inetgw
MTC-00028675
From: Richard Ballard
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4:53pm
Subject: Microsoft Settlement
I find it interesting that now, after you made your decision,
you permit comments on your to little to late actions.
While following this case not once did I see where it was
mentioned all the third party software stolen by Microsoft and
``added'' to their Operating System. ICQ (now MS Message),
MP3 (Winamp, MuchMusic, etc. and here they decided to lower the
standard 128BPS), Java (They usurped the whole idea of java, making
programs usable on ALL OSs, by changing the code so it wouldn't work
on their own system). Internet Connection Sharing wasn't an MS idea,
I bought that programming back in Win 95s day. Now its a feature?
Another company product down the drain.
These are a few of many examples of Microsoft's brazen theft
that seemed to be ignored, while they cry ``foul''.
And for punishment you are trying to give them a foothold in the
Education market they ignored until Apple started showing it as a
viable market? What about the businesses and programmers they put
under?
Your punishment couldn't have been any better for Microsoft. Do
you own stock?
Richard Ballard
8812 Spring Lake RD.
Pine Bluff, AR
MTC-00028676
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:51pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Rita Carder
4 Brooks Road
none
Bel Air, MD 21014
MTC-00028677
From: Michael Myers
To: Microsoft ATR
Date: 1/28/02 4:53pm
Subject: Microsoft Settlement
I would like to take a moment to voice my objection to the
propsed settlement in the Microsoft Anti-Trust case. I believe that
the proposal is far too weak to have any meaningful effect on the
marketplace.
In the past, Microsoft has demonstrated it's willingness to do
whatever it sees fit in spite of the law, and to use it's billions
to fend off any legal action until it is far too late to rectify the
damage. I expect that if this settlement is accepted, it will be
less than a year until Microsoft breaks the agreement in the pursuit
of some competitor and creates another prolonged legal battle that
will not be resolved until the competitor is long dead. And I expect
that every last word in the agreement will be endlessly debated in
court case after court case, as Microsoft forestalls any enforcement
for years. Microsoft has shown little respect for the law to date
(in terms of previous broken agreements, falsifying testimony
related to IE and Windows, forging letters of support, etc). There
is no reason to expect them to behave differently in the future.
Such outrages are funded by a public that has little choice but
to pay Microsoft for it's products. I am writing this letter on a
Linux machine that I bought with Windows 98. Despite the fact that I
do not use MS products, I find that I am forced to buy them whenever
I buy hardware. So long as MS can ``tax'' us this way,
they can afford unlimited legal bills. I feel that any settlement
that does not split up the company or prevent it from using Windows
to enter new markets is doomed to fail.
Finally, I find it absurd that the DOJ won the first case, and
essentially ``won'' the appeal (in that all the findings
were upheld and only the remedy was vacated), and then suddenly
turned about and proposed the weakest remedy imaginable (filled with
all the legal loopholes MS could dream of). This smells heavily of
politics. It seems very much as if the new DOJ lead by Mr Ashcroft
is not interested in enforcing antitrust law or achieving justice
for consumers, but is instead catering to the worst elements of the
Republican party. Hopefully, the court will not accept this.
Sincerely,
Michael J Myers
Manchester, PA 17345
[email protected]
MTC-00028678
From: Bruce McDiffett
To: Microsoft ATR
Date: 1/28/02 4:53pm
Subject: Microsoft Settlement
Greetings,
I'd like to express my extreme personal and professional
disappointment at what I deeply believe will be the almost total
ineffectiveness of the proposed Microsoft antitrust settlement
agreement.
You might just as well sentence a serial killer to probation,
with the stern warning to not kill the victims again.
As a computer designer, I've had the opportunity to work with
Microsoft since the late 1970's. I've watched them stifle technical
innovation for almost a quarter century now. For nearly 25 years,
regardless of their corporate size, they have consistently shown
their only interest is maximizing their corporate profit by any
means, legal or illegal.
Microsoft has indeed made a bunch of money for some people. So
does dumping toxic waste into the environment. Why should Microsoft
be treated differently than anyone else, simply because they've made
a lot of money?
As a revealing exercise, consider how much human effort is
wasted by Microsoft software each year. Assuming 100,000,000 PC's
running MS software, and also assuming a week of unnecessary
downtime each year (a conservative estimate), every year we have
almost 2 million man-years of human life squandered--;simply
thrown away. This is technical innovation? This is business
leadership? No, this is an appalling disregard for human life. And
this tyrannical contempt for the lives of the people is made
possible by Microsoft's monopoly. Our country was founded to defend
the people from tyrants. And though the founding fathers of our
country believed in market freedoms, they believed more in the power
of our government to protect the public interest. That's why we have
a federal government, and not a federal marketplace. Please, have
the courage to create a settlement agreement that will actually
protect the American people.
Millions of us are depending on you.
Sincerely,
Bruce McDiffett
MTC-00028679
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:53pm
Subject: microsoft settlement-influence peddling
Dear US District judge Colleen Kollar-Kotelly,
The fact that Microsoft has blatantly failed to comply with any
honest behavior including the Tunney Act, as evidenced by the
interpretation of the acts creator, via his affadavit filed with the
court, comes as no surprise to anyone.
Surely any company which doesn't disclose that their top
monopoly monger, StevieBoy Balmer met with his kin, (Dickie to drunk
to disclose his three drunken driving convictions Cheney,) can't be
counted on to comply with a little ole paperwork disclosing the
millions spent lobbying the rest of congress and their staff's.
We all know Steve and Dick didn't talk technology shop. They
talked about the EnronBushCheney energy monopoly policy! But hey, by
golly, thats priviledged information according to Dick. Or maybe
they had a concensual sexual relationship, But hey a concenting
sexual relationship isn't covered under executive priviledge !!!! So
forget antitrust,enrongate,insider trading influence peddling and
the rest! Lets be good Republicans and spend 60 million and see if
those secret meetings were were about Steve bobbing
Dick!
MTC-00028680
From:
[email protected]@inetgw
[[Page 28359]]
To: Microsoft ATR
Date: 1/28/02 4:53pm
Subject: Microsoft Settlement
117 James Garland Road
Hot Springs, AR 71913
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am glad to see that the Microsoft case is coming to a close. I
believe that you should settle the case pursuant to the terms of the
agreement you reached with Microsoft in November 2001.
This settlement agreement provides you not only with the chance
to bring a close to the federal government's case, but also to help
the economy in the process.
Microsoft's agreement to discontinue a number of its more
restrictive business practices should have a positive impact on the
computer and software sector of the economy. The agreement to allow
competition from non-Microsoft software within Windows is of
particular importance because it could provide immediate
opportunities for designers and developers of non-Microsoft software
products.
I hope you approve the settlement and close this case as soon as
the law allows. Thank you for your time.
Sincerely,
Suzanne C. Akers
Robert C. Akers
E-mail--;[email protected]
MTC-00028681
From: Franziska Raedeker
To: Microsoft ATR
Date: 1/28/02 4:55pm
Subject: Microsoft Settlement
I want a fair choice of several options in computer
applications.
1. The proposed settlement is not in the public interest. The
settlement leaves the Microsoft monopoly intact. It is vague and
unenforceable. It leaves Microsoft with numerous opportunities to
exempt itself from crucial provisions.
2. The proposed settlement ignores the all-important
applications barrier to entry which must be reduced or eliminated.
Any settlement or order needs to provide ways for consumers to run
any of the 70,000 existing Windows applications on any other
operating system.
3. Consumers need a la carte competition and choice so they, not
Microsoft, decide what products are on their computers. The
settlement must provide ways for any combination of non-Microsoft
operating systems, applications, and software components to run
properly with Microsoft products.
4. The remedies proposed by the Plaintiff Litigating States are
in the public interest and absolutely necessary, but they are not
sufficient without the remedies mentioned above.
5. The court must hold public proceedings under the Tunney Act,
and these proceedings must give citizens and consumer groups an
equal opportunity to participate, along with Microsoft's competitors
and customers.
Sincerely,
Franziska Raedeker
925 Spruce Street
Berkeley, CA 94707
[email protected]
MTC-00028682
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:55pm
Subject: Microsoft Settlement
Any company that dominates the vehicles by which companies
achieve daily tasks and goals (while maintaining the illusion of
open market participation, owns and controls the very same roads
that facilitate those vital components of commerce AND maintains
mafia-esque enforcement practices to insure as few vehicles from any
and all rival competitors are equipped with the necessary technology
and mechanisms to use those purported ``public'' roads
constitutes the key issue in assessing the true injustice of
monopolistic practices.
To my mind the appropriate analogy would be if Ford or GM
suddenly decides to buy up all the major highways in the US and then
equip those highways with exclusive features and benefits that can
be only realized if you own their car. As a matter of fact, if your
vehicle is not made by that dominant manufacturer, it just doesn't
drive as well when it accesses those highways...it seems to go
slower, has trouble with maneuvering and steering and the radio
signal is weak or generates nothing but static. As a daily consumer
of those highways, one becomes quickly convinced to buy a vehicle
manufactured by the same company that is optimized for those
highways by virtue of their exclusive ownership and that can also
take exclusive advantage of any and all the extras and amenities
that are not accessible to any other manufacturers'' vehicles.
Microsoft must be disavowed of their monopoly in being made to
relinquish ownership either the Windows operating system or the
right to develop and market the primary applications which are
optimized to run within the Windows OS environment. Individually,
each currently dominates their respective markets (solely by virtue
of their combined ownership) and jointly present a total supremacy
of the marketplace in both areas.
MTC-00028684
From: Gossett, David M.
To: Microsoft ATR
Date: 1/28/02 4:5 1pm
Subject: Microsoft Settlement
Attached please find:
(1) Cover letter;
(2) Comments of Computer & Communications Industry
Association on the Revised Proposed Final Judgment;
(3) Declaration of Joseph E. Stiglitz and Jason Furman; and
(4) Declaration of Edward Roeder.
Please confirm receipt of this message. Thank you. Note that we
are having a copy of these documents delivered by messenger as well.
Regards,
David Gossett
David M. Gossett ++ Mayer, Brown & Platt
1909 K Street, NW, Washington, DC 20006
T: 202.263.3384 F: 202.263.5384
[email protected]
www.appellate.net/gossett
MAYER, BROWN & PLATT
555 COLLEGE AVENUE
PALO ALTO, CA 94306-;1433
DONALD M. FALK
DIRECT DIAL (650) 331-;2030
DirECT FAX (650) 331-;2068
[email protected]
MAIN TELEPHONE
(650) 331-;2000
MAIN FAX
(650) 331-;2060
January 28, 2002
VIA E-MAIL AND MESSENGER
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Re: Microsoft Settlement: United States v. Microsoft Corp., No.
98-;1232 Tunney Act proceedings
Dear Renata:
Enclosed please find the following comments on the settlement:
(1) Comments of Computer & Communications Industry
Association on the Revised Proposed Final Judgment;
(2) Declaration of Joseph E. Stiglitz and Jason Furman; and
(3) Declaration of Edward Roeder.
Thank you for your assistance. Please feel free to call my
Washington colleague, David Gossett (202-;263-;3384) or me
if you have any questions.
Hope all is well with you. It's a long way from the ELQ days.
Sincerely,
Donald M. Falk
Enclosures
CHARLOTTE CHICAGO COLOGNE FRANKFURT HOUSTON LONDON LOS ANGELES
NEW YORK PALO ALTO PARIS WASHINGTON INDEPENDENT MEXICO CITY
CORRESPONDENT: JAUREGUI, NAVARRETE, NADER Y ROJAS
BEFORE THE UNITED STATES DEPARTMENT OF JUSTICE UNITED STATES OF
AMERICA Plaintiff, v. MICROSOFT CORPORATION, Defendant. Civil Action
No. 98-;1232 (CKK) United States District Court for the
District of Columbia
STATE OF NEW YORK ex rel. Attorney General ELIOT SPITZER, et
al., Plaintiffs, v. MICROSOFT CORPORATION, Defendant. Civil Action
No. 98-;1233 (CKK) United States District Court for the
District of Columbia
COMMENTS OF COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION
ON THE REVISED PROPOSED FINAL JUDGMENT
Donald M. Falk Edward J. Black
Mayer, Brown & Platt Jason M. Mahler
555 College Avenue Computer & Communications
Palo Alto, California 94306 Industry Association
(650) 331-;2030 666 11th Street NW
(650) 331-;2060 facsimile Washington, DC 20001
[[Page 28360]]
(202) 783-;0070
David M. Gossett
Mayer, Brown & Platt
1909 K Street, NW
Washington, DC 20006
(202) 263-;3000
TABLE OF CONTENT
INTRODUCTION
A. Liability Rests On Microsoft's Suppression Of Middleware Threats
That Threatened To Erode The Applications Barrier To Entry--;6
B. The RPFJ Does Not Prevent Microsoft From Abusing Its Position And
Does Not Meet Basic Standards For An Antitrust Remedy--;9
C. The Obligations That Supposedly Restore Competitive Conditions In
Fact Make Microsoft Do Virtually Nothing Against Its Will--;11
D. The Public Interest Requires An Effective Remedy That The RPFJ
Does Not Provide--;15
I. The Tunney Act Requires Close Scrutiny Under The Present
Circumstances--;18
A. The Government's Victory On Liability Removes Litigation Risk And
Therefore Limits Deference--;19
1. The Imposition And Affirmance Of Liability Remove Any
Constitutional Concerns About Searching Review And Require The Court
To Perform Its Constitutional Duty--;19
2. The Extensive Record And Judicial Opinions Provide Clear,
Manageable Standards For Substantive Review Of The RPFJ--;23
B. Broad Deference Is Particularly Inappropriate Because The
Circumstances Are Suspicious--;26
1. Microsoft's Manifestly Inadequate Disclosure Under The Tunney
Act's Sunshine Provisions Weighs Strongly Against Judicial Deference
To The Terms Of The RPFJ--;26
2. The RPFJ Represents A Swift And Significant Retreat By
DOJ--;32
3. The CIS Overstates The Terms Of The RPFJ, Reflecting The
Indefensibility of the RPFJ Itself--;33
II. the rpfj must meet the legal standards normally applicable to
antitrust remedies--;34
A. The Relief Should ``Terminate The Illegal
Monopoly''.--;35
B. The Relief Should Prevent ``Practices Likely To Result In
Monopolization In The Future''--;36
C. The Relief Should ``Deny To The Defendant The Fruits Of Its
Statutory Violation''--;37
D. Broader Principles Applicable To Injunctive Relief Also Should
Inform The Analysis Of The RPFJ--;37
III. The RPFJ falls far short of providing a remedy for proven
offenses upheld on appeal--;39
A. DOJ's Effort To Minimize The Scope Of The DC Circuit's Affirmance
Cannot Obscure The Failure Of The RPFJ To Remediate Clear, Proven
Violations--;39
B. The RPFJ Simply Restates The Antitrust Laws At Critical Points
And Thus Forfeits The Clarity And Efficiency Of The Contempt
Process--;41
C. The RPFJ Provides No Remedy For Microsoft's Suppression Of The
Browser And Java--;42
IV. The Icon-focused Oem flexibility Provisions Are
Ineffective--;44
A. The PFJ Permits Microsoft's To Continue Illegally Commingling
Middleware Code With The Code For The Monopoly Operating
System--;45
1. The DC Circuit Specifically Condemned Commingling Twice--;46
2. The Failure To Limit Commingling Is Critical Because Ubiquity
Trumps Technology In Platform Software Markets--;49
3. The RPFJ Retreats From The 1995 Consent Decree--;52
4. The RPFJ Encourages Illegal Commingling By Placing The Critical
Definition of Windows Under Microsoft's Exclusive Control--;53
B. Empirical Evidence Shows That The Icon Flexibility Provisions
Will Not Be Used--;54
C. The Icon Flexibility Provisions Require--;And
Accomplish--;Little--;55
D. The 14-Day Sweep Provision Effectively Nullifies RPFJ
III(H)--;57
E. By Placing The Burden To Restore Competition On OEMs, The PFJ
Leads To No Remedy At All For Much Of The Misconduct At
Issue--;58
F. The RPFJ Permits Microsoft To Control Consumers'' Access To
Innovation To Suit Its Monopolistic Aims--;59
V. The API and Communications protocol Disclosure Provisions Are
ineffective--;60
A. The API Provisions Require Little, If Anything, Beyond Current
Disclosure Practices In Microsoft's Self-Interest--;60
B. The RPFJ Does Not Require Disclosure of Windows APIs, But Rather
Lets Microsoft Determine The Scope of Disclosure Through The Design
and Labeling of Its Operating System And Middleware--;61
C. The Definition of ``Microsoft Middleware'' Gives
Microsoft Further Leeway to Limit Its Disclosure Obligation--;63
1. The RPFJ Requires Microsoft To Disclose Only The APIs Used By The
``User Interface'' Or Shell Of Microsoft
Middleware--;64
2. The RPFJ Requires Microsoft To Disclose APIs Only For
``Microsoft Middleware'' That Is Distributed Separately
From Windows, Yet Is Distributed To Update Windows--;65
3. The Limitation Of Microsoft Middleware To
``Trademarked'' Products Further Eviscerates The API
Disclosure Provision--;65
D. The Disclosure Provisions--;Particularly Those Concerning
``Communications Protocols''--;Depend On An Undefined
And Thus Unenforceable Concept of
``Interoperability''--;69
E. The Narrow Scope Of The Disclosure Provisions Contrasts Sharply
With The Broader Definitions In DOJ's Earlier Remedy
Proposals--;70
F. The ``Security'' Exceptions in Section III(J) Permit
Microsoft To Avoid Its Disclosure Obligations--;72
1. The Exclusions for Security-Related APIs and Protocols in
RPFJ(J)(1) Permit Microsoft To Hobble Disclosures That Are Critical
in Internet Computing--;73
2. RPFJ III(J)(2) Permits Microsoft To Refuse Effective Disclosure
To A Range Of Potentially Effective Competitors--;77
G. RPFJ III(I) Would Place A Judicial Imprimatur On
Microsoft's Use Of Technical Information As A Lever To Extract
Competitors'' Intellectual Property
VI. built-in delays exacerbate the decree's unjustifiably brief
duration--;82
VII. Additional weaknesses undercut the rpfj
A. The Anti-Retaliation Provisions Are Deeply Flawed
B. Microsoft Can Evade The Price Discrimination Restrictions
C. Microsoft Can Enforce De Facto Exclusivity
VIII. THE RPFJ'S ENFORCEMENT MECHANISMS ARE FUNDAMENTALLY INADEQUATE
CONCLUSION
INTEREST OF THE COMMENTER
The Computer & Communications Industry Association
(``CCIA'') is an association of computer, communications,
Internet and technology companies that range from small
entrepreneurial firms to some of the largest members of the
industry. CCIA's members include equipment manufacturers, software
developers, providers of electronic commerce, networking,
telecommunications and on-line services, resellers, systems
integrators, and third-party vendors. Its member companies employ
nearly one million persons and generate annual revenues exceeding
$300 billion. CCIA's mission is to further the interests of its
members, their customers, and the industry at large by serving as
the leading industry advocate in promoting open, barrier-free
competition in the offering of computer and communications products
and services worldwide. CCIA's motto is ``Open Markets, Open
Systems, Open Networks, and Full, Fair and Open Competition,''
and its website is at www.ccianet.org.
For nearly 30 years, CCIA has supported antitrust policy that
ensures competition and a level playing field in the computer and
communications industries. That involvement antedates the founding
of Microsoft, much less its acquisition of its first monopoly and
its refinement of anticompetitive techniques. CCIA supported the
Tunney Act in the 1973 congressional hearings preceding the
enactment of that legislation, and played active roles on the side
of competition in other significant antitrust cases, including those
against AT&T and IBM. Before participating as amicus curiae at
the trial and appellate stages of the current Microsoft case, CCIA
participated as a leading amicus curiae in the proceedings examining
the last Microsoft consent decree in 1994-1995, both in the district
court and in the court of appeals. As a consequence, CCIA and its
members are intimately familiar with the shortcomings of that
decree, and its failure to prevent or deter Microsoft from
continuing on an anticompetitive course. Microsoft's conduct in the
intervening years, including the period while this case has been
litigated, has only sharpened CCIA's awareness of Microsoft's
dedication to driving out competition from as many aspects of the
computer-software and related industries as possible. Microsoft may
repeat
[[Page 28361]]
its attempts to mischaracterize CCIA as a mere voice for
competitors, but that innuendo cannot withstand scrutingy in light
of the diversity of CCIA's membership now and over the years,
combined with CCIA's 30 years of vigorous commitment to supporting
openness and competition in the computer technology and
communications industries. In hopes that a meaningful remedy in this
case will prevent Microsoft from further expanding the scope of its
monopoly, and with the certainty that the current Revised Proposed
Final Judgment (``RPFJ'') falls far short of that task,
CCIA submits this analysis of the RPFJ in conjunction with the
economic analysis of Nobel laureate Joseph Stiglitz and his
colleague Jason Furman, and the Declaration of Edward Roeder.
INTRODUCTION
The Tunney Act was designed to constrain the Department of
Justice (``DOJ'') from entering into settlements that
provided DOJ with an exit from an antitrust case but did not provide
the public with a remedy commensurate with the defendant's antitrust
violations. The Revised Proposed Final Judgment (RPFJ) in this case
does not provide adequate relief for the extensive and thoroughly
proven antitrust violations it purports to remedy.
Review of the RPFJ in this case should be especially searching
because there can be no doubt about Microsoft's liability. For the
first time in the history of the Tunney Act, the Court will review a
proposed settlement reached after liability has been not only
imposed, but unanimously affirmed on the government's most sweeping
and economically significant theory. That clear-cut liability, and
the voluminous Findings of Fact and trial record, place the Court in
this case in a different position from courts reviewing pre-trial
settlements.
Because there is no litigation risk on liability, the Court is
uniquely situated to evaluate any asserted litigation risk as to
remedy. Established principles of antitrust relief provide the Court
in this case with concrete, recognized standards to ensure that the
settlement serves the public interest in a way that courts reviewing
pre-trial settlements cannot. Magnifying the need for close
measurement of the RPFJ by objective principles is Microsoft's
silence, in its filing under 15 U.S.C. 16(g), about its
effort to truncate this case by a lobbying campaign of unprecedented
scope directed at the Executive and Legislative Branches
alike--;despite extensive public reports of that lobbying.
Microsoft's effort to deny the obvious gives rise to an inference
that it has something to hide.
The terms of the RPFJ provide the strongest reason for close
scrutiny, because they cannot withstand analysis. The RPFJ would not
provide a meaningful remedy for Microsoft's extensive campaign of
exclusionary acts. That campaign suppressed the most serious threat
to Microsoft's monopoly in the past decade, and not only prevented
the erosion of the applications barrier to entry that insulates the
monopoly, but increased the bar to new competition. The RPFJ ignores
some of the most significant holdings of the court of appeals,
however, including its separate imposition of liability for
Microsoft's commingling of middleware code with the code for the
Windows operating system.
More fundamentally, the RPFJ misses the point of Microsoft's
illegal conduct, which was to prevent erosion of the applications
barrier to entry by preventing middleware from attracting software
developers to the middleware application programming interfaces
(``APIs''). The RPFJ's basic premises, moreover, ignore
the current economic and technical realities of the computer and
software markets. In the seven years since Microsoft began the
illegal conduct at issue in this case, Microsoft has strengthened
its operating systems monopoly. The Internet browser, formerly a
threat to that monopoly, has become an adjunct to it, with
Microsoft's 91% share of that product adding further insulation to
the operating systems monopoly. Microsoft's unadjudicated monopoly
over personal productivity applications--;a key to the
applications barrier to entry in the operating systems
market--;likewise has grown in market share and market power.
But the RPFJ does not try to deprive Microsoft of any of the
benefits of its illegal activity directed at the browser and other
middleware. DOJ's remedial theory rests entirely on unidentified
future middleware threats. In fact, there are no technologies today
presenting a threat as intense as that presented by the Netscape
browser and Java, and the duration of the RPFJ is so short that it
almost certainly will expire before any significant new threats
materialize.
Aside from some restrictions on commercial retaliation that at
best might keep matters from getting worse, the RPFJ relies on two
sets of putative obligations to achieve a more competitive market.
But neither the provisions aimed at original equipment manufacturer
(``OEM'') flexibility nor those addressing information
disclosure requirements in fact require anything competitively
meaningful. In large part, these provisions replicate Microsoft's
current business practices respecting the disclosure of technical
information and the configuration of end-user access to middleware
products.
The OEM flexibility sections in RPFJ III(C)
and III(H) are literally superficial, principally addressing desktop
icons rather than the middleware code itself, which contains the
APIs relied on by software applications developers. Even if
successful, the flexibility provisions would not affect the
applications barrier to entry. Moreover, these provisions largely
restate current business practices or provide OEMs with flexibility
that both Microsoft and DOJ understand from experience will never be
exercised. OEMs have little or no incentive to exercise their
options; if they decline to do so, then the flexibility provisions
will have no competitive consequences for the industry.
The RPFJ's information disclosure sections
(III(D) and III(E)) are so transparently
insubstantial as to cast doubt on the entire proposal. The purported
disclosure requirements trace back to definitions that are committed
to Microsoft's control, are circular, or simply do not exist.
Neither DOJ nor any other objective observer could have any idea
precisely which APIs or protocols must be disclosed.
The RPFJ's provisions and definitions are so vague that only two
practical results are possible. Either everyone will simply ignore
the decree, which plainly would not be in the public interest for an
antitrust remedy, or the Court will have to take primary
responsibility for defining its terms during enforcement
proceedings. DOJ's answer seems to be to let Microsoft set the terms
of its obligations: the RPFJ gives the defendant ``sole
discretion'' to define the decree's most important term,
``Windows Operating System Product,'' which appears 46
times to delimit the RPFJ's 10 substantive provisions.
Indeed, much of DOJ's Competitive Impact Statement
(``CIS'') seems to reflect an understanding that the RPFJ
is inadequate in several critical respects. The CIS defines terms
not defined in the RPFJ, exaggerates the scope of certain RPFJ
provisions, and redefines other terms in order to minimize the
impact of some of the broad exemptions in the RPFJ. It is the RPFJ
that the Court would have to enforce, however, as the CIS is not
part of the contract between DOJ and Microsoft.
In sum, although the RPFJ's provisions superficially seem to
restrict Microsoft's practices, there is no substance behind them.
The provisions accomplish little beyond laying down criteria for
Microsoft to follow in order to avoid any interference with its
continuing campaign of illegal monopolization.
The terms of the RPFJ, as much as the circumstances of the
settlement, strongly suggest that Microsoft and the Department of
Justice shared a desire to end this case, rather than to provide an
effective remedy for Microsoft's substantial antitrust violations.
The 1995 consent decree with Microsoft produced uninterrupted
illegal monopolization, prompting the filing of this case in 1998.
The Court can expect the same with this decree. The RPFJ, if
approved, might temporarily end DOJ's involvement, but would not
provide the type of remedy that the public interest and the Tunney
Act demand. To the contrary, because the harm to the competitive
process caused by Microsoft's adjudicated illegal conduct is
certain, a remedy that masks but does not cure that harm
affirmatively injures the public interest, and therefore should be
rejected.
A. Liability Rests On Microsoft's Suppression Of Middleware
Threats
That Threatened To Erode The Applications Barrier To Entry This
case is about Microsoft's devastatingly thorough suppression of
threats to its Windows operating system (``OS'') monopoly
by ``middleware.'' That monopoly was insulated from
competition by the applications barrier to entry described by the
court of appeals and the CIS. See United States v. Microsoft Corp.,
253 F.3d 34, 55-;56 (DC Cir. 2001) (``Microsoft
III''); CIS 10-;11, 66 Fed. Reg. 59,452, 59,462 (2001).
See also Declaration of Joseph E. Stiglitz & Jason Furman
7-;9 (``Stiglitz/Furman Dec.'') (attached). The
middleware at issue in this case exposed APIs that could be used by
software applications developers to write programs
[[Page 28362]]
that did not rely on the underlying Windows operating system. As
Microsoft recognized, if developers embraced non- Microsoft
middleware APIs and designed their products to run on that
middleware rather than directly on an operating system,
``middleware'' of this kind ``would erode the
applications barrier to entry,'' as ``applications * * *
could run on any operating system on which the middleware product
was present with little, if any, porting.'' Microsoft III, 253
F.3d at 55. The threat that ``middleware could usurp the
operating system's platform function,'' id. at 53, prompted
Microsoft's anticompetitive conduct.
But non-Microsoft middleware can become a competing platform
only if developers write software that calls on the non-Microsoft
middleware APIs. Most developers will create software only to run on
platforms that are distributed widely enough for the developers to
be reasonably certain that the APIs (on which their programs rely)
will be present on most, if not all PCs. Likewise, if developers can
be certain that Microsoft's middleware APIs are present on all PCs,
this will strongly influence their initial decision as to whether it
is worth the effort to write applications to alternative, non-
Microsoft middleware APIs.
The successful theory of the case--;proved and accepted by
two courts--;is that Microsoft engaged in an ``extensive
campaign of exclusionary acts'' that were designed ``to
maintain its monopoly'' by suppressing middleware threats posed
by the Netscape Navigator Internet browser and the cross-platform
Java technologies. CIS 9, 66 Fed. Reg. 59,462; Microsoft III, 253
F.3d at 53-;56, 60-;62, 74-;78. Microsoft's response
to this threat guaranteed that developers would not use the APIs of
competing middleware, destroying the platform threat.
Because Microsoft has a monopoly over the OS, it can ensure that
its own versions of a middleware product have universal
distribution, so that Microsoft's middle- ware APIs will be present
on all PCs. For example, because Windows is both an operating system
and a distribution channel for Microsoft's technologies, Microsoft
could and did ensure that the code for its Internet Explorer
(``IE'') browser was distributed to every PC.
Ensuring that the code for Microsoft middleware was on every PC
accomplished two related goals. First, it guaranteed instant and
unassailable ubiquity for the Microsoft version of the middleware
and the middleware APIs on which developers rely. Second, the forced
ubiquity of Microsoft middleware prevents competing middleware from
achieving ubiquity, or anything like it, because few distribution
channels will incur the support and other costs of distributing two
versions of the same functionality. A key theory of the case is that
the applications barrier to entry could have been eroded only if
developers chose and used alternative middleware platforms on which
to write software. End-user access to middleware was significant
only to the extent it influenced developers'' choices to write
to the APIs of that middleware.
Thus, ensuring that the code for the Microsoft version of
middleware is on every PC destroys the competitive threat presented
by the competing middleware's APIs, since few developers will them
in preference to Microsoft middleware APIS that are certain to be
ubiquitous. This fact provides the essential context for any
meaningful analysis of the information disclosure and OEM
flexibility provisions of the RPFJ.
B. The RPFJ Does Not Prevent Microsoft From Abusing Its Position
And Does Not Meet Basic Standards For An Antitrust Remedy
The DC Circuit set out a simple standard for measuring the legal
sufficiency of any remedy selected in the Microsoft litigation: the
remedy must ``seek to unfetter [the] market from
anticompetitive conduct,'' * * * to `terminate the
illegal monopoly, deny to the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future.''' Microsoft HI,
253 F.3d at 103 (quoting Ford Motor Co. v. United States, 405 U.S.
562, 577 (1972), and United States v. United Shoe Machinery Corp.,
391 U.S. 244, 250 (1968)). As the District Court recognized in
beginning remedy proceedings on remand (9/28/01 Tr. 6-;7), not
one word in the DC Circuit's opinion suggests the slightest
antipathy toward any conduct remedy related to the illegal
monopolization that the Court of Appeals exhaustively condemned.\1\
The District Court warned the plaintiffs to be ``cautiously
attentive to the efficacy of every element of the proposed
relief.'' 9/28/01 Tr. 8. That is, the plaintiffs must make sure
that the proposed remedy works.
---------------------------------------------------------------------------
\1\Indeed, in denying rehearing, the DC Circuit made
crystal clear that ``[n]othing in the Court's opinion is
intended to preclude the District Court's consideration of remedy
issues.'' Order, at 1 (DC Cir. Aug. 2, 2001) (per curiam).
---------------------------------------------------------------------------
That admonition appears to have fallen on deaf ears. Because
liability has been established and affirmed in great detail, the
scope of the District Court's appropriate deference to DOJ is
extremely limited because the range of permissible action by DOJ is
closely confined. There is no litigation risk other than the risk
that the District Court would not approve a particular remedy, or
that the District Court's exercise of discretion in approving a
remedy might be reversed on appeal. A remedy, even one imposed by
agreement, must provide adequate relief for the violations that have
been proved, however. DOJ is entitled to deference only for choices
that fall within the range of adequate relief.
The RPFJ misses the point of the central theory of liability.
The RPFJ does not impose certain, enforceable, or competitively
significant obligations on Microsoft to restore competition or to
avoid suppressing future threats. The RPFJ allows Microsoft to keep
every anticompetitive gain that resulted from its illegal conduct,
simply requiring Microsoft to find new and slightly different ways
to accomplish its anticompetitive goals. DOJ seems to recognize that
the case focused on two specific products--;Netscape Navigator
and Java--;that embodied the broader threat of middleware and
the Internet to the stability and significance of Microsoft's
monopoly. The RPFJ does nothing to restore the specific competitive
threat posed by an independent Internet browser. It does nothing to
restore the threat of cross-platform Java. And it does nothing to
protect any other middleware threat--;in the unlikely event that
another such threat might arise within the short duration of the
RPFJ--;from much similar exclusionary conduct, or indeed from
the identical commingling of code that sealed Netscape's fate.
Rather, the RPFJ appears to assume that it is still 1995, and that
the threat of the Internet browser can begin anew without
confronting a more thoroughly entrenched Microsoft. The RPFJ does
not take account of the impact on participants at different levels
of the computer and software industries of an additional seven years
of Microsoft's anticompetitive abuses. That view does not accord
with reality, and the provisions intended to permit open competition
in that counterfactual world cannot achieve their goal.
C. The Obligations That Supposedly Restore Competitive
Conditions In Fact Make Microsoft Do Virtually Nothing Against Its
Will
The RPFJ purports to give current and future middleware the
ability to present the same threats to the Microsoft monopoly that
Netscape and Java presented before the onset of Microsoft's illegal
conduct. DOJ describes the obligations in the RPFJ as if they would
have stopped Microsoft's suppression of Netscape, and as if they
would allow rival middleware vendors to obtain the technical
information that they need to ``emulate Microsoft's integrated
functions'' (Testimony of Charles James before Senate Judiciary
Committee 7 (Dec. 12, 2001)) and to step into the shoes of Microsoft
middleware in relation to Windows and the Windows monopoly. The RPFJ
does not achieve those goals.
Most of the RPFJ reduces to two sets of obligations, along with
some prohibitions on exclusive deals and on retaliation against
those who take advantage of Microsoft's obligations. One set of
obligations appears to restrain Microsoft from taking particular
actions to interfere with OEMs'' placement of the icons of Non-
Microsoft Middleware on their machines, or with end-users'' use
of those products. These OEM flexibility provisions principally rely
on the OEMs to provide a remedy for Microsoft's misconduct. The
other set of obligations requires a certain degree of disclosure of
APIs and Communications Protocols to allow competing software
products can ``interoperate''--; an undefined
term--;with the monopoly OS.
For the most part, the obligations placed on Microsoft by the
RPFJ simply replicate current options voluntarily provided by
Microsoft. For example, Microsoft must continue to disclose the APIs
it currently discloses in the Microsoft Developers'' Network
(MSDN), a program Microsoft developed to further its self-interest
in making the Windows platform popular with software developers. And
Microsoft must continue to allow end-users to delete icons from the
desktop and start menu. Such provisions at most simply prohibit
Microsoft from making matters worse than they are after Microsoft's
years-long anticompetitive campaign. Indeed, the RPFJ in some
instances specifically approves potential
[[Page 28363]]
misuse of Microsoft's current voluntary implementations of the
flexibility and disclosure provisions.
To begin with the flexibility provisions, their chief flaw is
their focus on icons rather than on middleware functionality. This
is literally a superficial approach. Microsoft can include its own
middleware and middleware APIs on every PC. Developers will know
those APIs are there and consequently will write to them in
preference to the APIs of a competing product that may or may not be
on a particular machine. No provision of the RPFJ restricts
Microsoft's insertion and commingling of middleware code into the
``Windows Operating System Product'' bundle that Microsoft
receives the right to define for decree purposes ``in its sole
discretion.'' RPFJ VI(U). From the point of view
of developers--;and thus of the ability of middleware to erode
the applications barrier to entry--;these
``flexibility'' provisions are meaningless.
Even to the extent that competing middleware vendors might
obtain favorable placement for their products'' icons in
preference to the icons for Microsoft products, that achievement
would be both superficial and temporary. The functionality of the
Microsoft product would remain on the machine, and Microsoft could
insist on its invocation for a variety of functions. And, 14 days
after a PC first boots up, Microsoft would be free to nag users to
click a ``Clean Desktop Wizard'' which would organize
icons in the way that suited Microsoft. There is nothing in the RPFJ
to stop that ``Wizard'' from resetting default
applications to coincide with Microsoft's preferences as well, or
even from enhancing the product so that it becomes a Clean File
Wizard to remove code of competing middleware with a single click.
These provisions place responsibility for restoring competition
on innocent OEMs and ISVs rather than on Microsoft. And many
provisions give end-users what they have now: the ability to remove
an icon from the desktop or a program menu by right-clicking it and
selecting ``Delete,'' or by dragging it to the Recycle
Bin. The provisions do change the status quo in one way. The
``Add/Remove'' function, which now removes some underlying
code for applications, will only remove a few icons when the removed
application is Microsoft middleware.
The disclosure provisions are no better. The RPFJ requires
Microsoft to disclose APIs between ``Microsoft
Middleware'' and a ``Windows Operating System
Product,'' but the definitions of those terms are so completely
within Microsoft's control that it is impossible to tell whether
Microsoft ever would have to disclose an API that might have
competitive significance. As noted above, a ``Windows Operating
System Product'' is whatever Microsoft says it is.
``Microsoft Middleware'' must be distributed separately
from the OS (unlike, e.g., the current version of Windows Media
Player). ``Microsoft Middleware'' must be
``Trademarked'' in a way that would exclude Windows
Messenger, may exclude Windows Media Player, and certainly would
exclude any products that followed Microsoft's practice of simply
combining the Microsoft(r) or Windows(r) marks with a generic or
descriptive term.
Indeed, because ``Microsoft Middleware'' need not mean
any more than the user interface of a middleware functionality that
meets the other definitional requirements, see RPFJ
VI(J)(4), the only APIs that must be disclosed are
those between the middleware user interface and
``Windows,'' which Microsoft in its discretion can define
to include all of any given middleware functionality. See id.
VI(U). Microsoft need not disclose how the middleware
actually invokes Windows to work, except for the way that the OS
displays the middleware's shell.
The disclosure provisions applying to Communications Protocols
are similarly weakened by non-existent definitions. The disclosable
Protocols are those required to
``interoperate''--;whatever that may mean--;with
equally undefined ``Microsoft server operating products.''
RPFJ III(E). In addition, the Communications Protocol
disclosure provisions are limited by sweeping exceptions applying to
security protocols that are intertwined with all significant
computer-to-computer communication. See id. III(J)(I).
Microsoft can withhold parts of those Protocols (and, indeed, parts
of APIs) on the basis that disclosure would compromise security of
an installation.
If this exemption were limited to the customer-specific data
like encryption keys or authorization tokens, it would be necessary,
not objectionable. But the exemption explicitly permits Microsoft to
withhold portions of the Protocols and APIs themselves, which
necessarily makes ``interoperation'' (as that term
normally is used) incomplete. Interoperation, however, is an all-or-
nothing state. Software that can use only parts of APIs and
Communications Protocols simply cannot ``intemperate''
with the software on the other side of the API or Protocol.
But that is not all. RPFJ III(J)(2) permits
Microsoft to refuse to (disclose security-related Protocols or APIs
to any company that does not meet Microsoft's standards of business
viability or its standards for a business need. Again, little if
anything is left of this disclosure requirement if Microsoft chooses
to resist disclosure when that serves its anticompetitive goals.
One thing is certain. Unless Microsoft and DOJ alike render the
RPFJ irrelevant by simply ignoring it, the District Court will be
faced again and again with the task of interpreting the RPFJ's
indistinct provisions. Microsoft has demonstrated its incentive and
ability to contest even the most seemingly obvious points of any
court order.
D. The Public Interest Requires An Effective Remedy That The
RPFJ Does Not Provide
Despite the belated efforts of DOJ to minimize the scope of this
case, it remains the largest, most successful prosecution for
monopolization liability since at least the Second World War. The DC
Circuit affirmed ``the District Court's holding that Microsoft
violated ? 2 of the Sherman Act in a variety of ways.'' 253
F.3d at 59. The breadth of that holding is clear from the 20 Federal
Reporter pages consumed by the court's detailed discussion of
Microsoft's array of exclusionary behavior. The competitive
significance of the conduct condemned by that holding is explained
both in the opinion, in the Declaration of Joseph E. Stiglitz and
Jason Furman (``Stiglitz/Furman Dec.'') 16-;20, and
in the Comment of Robert E. Litan, Roger G. Noll, and William D.
Nordhaus (``Litan/Noll/Nordhaus Comment'') 12-;31,
among other submissions for this Tunney Act proceeding. The
difficulties encountered by peripheral claims are irrelevant,
particularly because all of the challenged conduct supported
monopolization liability in addition to one or more of the since-
abandoned theories. The supposed ``narrowing'' left a huge
monopolization case with a stark judgment affirming the government's
theory. e RPFJ does not provide a remedy commensurate with that
liability.
The RPFJ is insufficient for another overarching reason. The
passage of time has only exacerbated the problem of Microsoft's
successful abuse of its operating systems monopoly to extend that
monopoly to embrace other sectors of computing and to forestall
threats to the monopoly from those sectors. Microsoft's monopoly
over Internet browsing is complete, as its current 91% market share
indicates. Julia Angwin, et al., AOL Sues Microsoft Over Netscape in
Case That Could Seek Billions, WALL ST. J., Jan. 23, 2002, at B 1.
Even the RPFJ recognizes, albeit through toothless provisions, that
Microsoft is using its desktop OS monopoly to force greater use of
its server operating systems. And Microsoft's efforts to use the
inclusion of its Passport authentication software on every Windows
machine as a means of directing through a Microsoft server all
authentication and identification transactions--;gaining a
literal chokehold over the communications aspect of Internet
computing--;is so significant that Microsoft sought and obtained
an exemption in the RPFJ specifically designed to excuse that known
monopolistic strategy. See RPFJ
III(H)(1)[second]\2\ see also id.
Ill(J).
---------------------------------------------------------------------------
\2\RPFJ III(H) contains two subsections (1)
and (2). We distinguish between the two sets of subsections with the
bracketed terms ``first'' and ``second.''
---------------------------------------------------------------------------
Microsoft has made ample use of the seven years since the
beginning of the conduct at issue in this case. The RPFJ is wholly
inadequate even on its own terms, which assume that the world has
returned to 1995. But the RPFJ does not begin to address what has
happened since then. The public interest in a remedy that achieves
what antitrust law says it must cannot be obscured by focusing
either on the preference of the technology industry for standards,
or on the never-litigated assumption that Microsoft obtained its
original operating systems monopoly legally in the 1980s. The last
premise, after all, still suggests that the last ten years or so of
Microsoft's hegemony have resulted from the illegal acts that
prompted two government antitrust lawsuits. If DOJ's enforcement
history is to be credited, Microsoft has at least doubled the life
of its monopoly through illegal conduct.
In addition, even if the nature of software platforms generally,
or computer operating
[[Page 28364]]
systems in particular, results in transitory single-firm dominance,
that does not mean that competition has no place, or that entrenched
monopoly is somehow without social costs. See Stiglitz/Furman Dec.
13-;16. Innovation results in the periodic replacement or
``leapfrogging'' of one standard by another. This is not
some meaningless replacement of one monopoly with another, as some
would have it. To the contrary, as economists--;including those
of the Chicago school--;have recognized, ``competition * *
* `for the field''' provides consumers with
substantial benefits. See Microsoft III, 253 F.3d at 49 and sources
cited therein. But if competition in a market is limited in scope to
serial competition for transitory dominance, predatory conduct is
especially harmful. See generally Stiglitz/Furman Dec. 13-;16.
The monopolist may need to eliminate only a few incipient but
significant threats in the course of a decade in order to transform
transitory dominance into a durable, even impregnable monopoly.
That is what happened here. Although Netscape Navigator had not
developed into a competing applications platform when Microsoft cut
off its revenue sources, Netscape contemplated just such a
development--;and Microsoft both contemplated and deeply feared
it. The outcome of the competition that Microsoft thwarted is
unknowable. But there will be no further competition--;much less
competitive outcomes--;if Microsoft is allowed to repeat the
course of conduct it undertook here.
But the RPFJ permits Microsoft to continue to fortify and expand
its monopoly. Indeed, the RPFJ provides an imprimatur for Microsoft
to continue and expand a whole range of additional, related
anticompetitive practices. As a consequence, the RPFJ is an
instrument of monopolization, not a remedy for it. The Court should
not add judicial endorsement to DOJ's agreement to give up the case.
The ``public interest,'' within the meaning of the Tunney
Act, 15 U.S.C. 16(e), requires far more effective
relief.
I. THE TUNNEY ACT REQUIRES CLOSE SCRUTINY UNDER THE PRESENT
CIRCUMSTANCES
The Tunney Act exists ``to prevent `judicial rubber
stamping''' of proposed antitrust consent decrees. United
States v. Microsoft Corp., 56 F.3d 1448, 1458 (DC Cir. 1995)
(quoting H.R. Rep. No. 1463, 93d Cong. 2d sess. 8, reprinted in 1974
U.S.C.C.A.N. 6535, 6538) (``Microsoft/'); United States v. BNS,
Inc., 858 F.2d 456, 459 (9th Cir. 1988); In re IBM, 687 F.2d 591,600
(2d Cir. 1982). Upon enactment it was immediately clear that
``Congress did not intend the court's'' review of a
proposed settlement ``to be merely pro forma, or to be limited
to what appears on the surface.'' United States v. Gillette
Co., 406 F. Supp. 713,715 (D. Mass. 1975) (Aldrich, J.).
The Tunney Act requires particularly close scrutiny of the RPFJ
in this case. The government seeks to remedy a proven, well-defined,
serious violation of the antitrust laws. Microsoft's heavy lobbying
of the executive and legislative branches in order to bring
political pressure for a lenient settlement heightens the need for
scrutiny, and in addition makes necessary the Court's active
investigation into Microsoft's failure to disclose the bulk of that
lobbying despite the command of 15 U.S.C. 16(g). The lenient terms
of the RPFJ itself further underscore the need for close judicial
scrutiny. Never in the history of the Tunney Act has a Court been
confronted with this combination of an impregnable judgment of
liability, pervasive lobbying, and apparent surrender by the federal
government. The circumstances here indicate exactly the sort of
``failure of the government to discharge its
duty''--;whether or not actually
``corrupt''--;that even DOJ concedes warrants close
judicial scrutiny of a settlement. CIS 66, 66 Fed. Reg. 59,476
(quoting United States v. Mid-America Dairymen, Inc., 1997-;1
Trade Cas. * 61,508, at 71,980, 1977 WL 4352 at * 8 (W.D. Mo.
1977)).
A. The Government's Victory On Liability Removes Litigation Risk
And Therefore Limits Deference
The CIS suggests (at 65-;68, 66 Fed. Reg. at
59,475-;476) that the Court owes nearly absolute deference to
DOJ's decision to retreat from its appellate victory. That is not
true. The affirmance of liability on appeal removes any speculation
that ``remedies which appear less than vigorous'' simply
``reflect an underlying weakness in the government's
case.'' Microsoft I, 56 F.3d at 1461. There is no
``underlying weakness''; liability is a given, and
provides a clear benchmark for measuring whether the proposed relief
is sufficiently effective to come ``within the reaches of the
public interest.'' Id. at 1460. Those ``reaches'' are
narrower when liability is proved and affirmed than when it is
merely alleged, as it was in Microsoft I.
1. The Imposition And Affirmance Of Liability Remove Any
Constitutional Concerns About Searching Review And Require The Court
To Perform Its Constitutional Duty
Most important, the current posture of this case places it
beyond the scope of the prudential and constitutional concerns
expressed by some courts (and dissenting Justices) about judicial
scrutiny of DOJ's charging decisions, or of its settlement of
unproven claims. It may be that when ``the government is
challenged for not bringing as extensive an action as it might, a
district judge must be careful not to exceed his or her
constitutional role.'' Microsoft I, 56 F.3d at 1462. Such
concerns did not persuade the majority of the Supreme Court,
however, which over a dissent rejected similar arguments in
summarily affirming the modifications imposed by the district court
in the AT&T consent decree. See Maryland v. United States, 460
U.S. 1001 (1983).
In any event, when the action has been brought, tried, and won,
and the only question is whether the proposed relief is adequate,
the constitutional concerns dissipate. Because DOJ already made the
discretionary decision to bring the case, and successfully proved
liability to the satisfaction of two courts, the Court in reviewing
this settlement runs no risk that by exercising its normal remedial
discretion under established legal principles it somehow might be
said ``to assume the role of Attorney General.'' Microsoft
I, 56 F.3d at 1462. It was precisely the absence of a
``judicial finding of illegality'' that might impede the
Tunney Act from ``supply[ing] a judicially manageable standard
for review.'' Id. at 1459. Here, two courts have provided the
``findings that the defendant has actually engaged in illegal
practices'' that were missing in both Microsoft I and AT&T
(like other cases settled before trial). Id. at 1460-;1461
(emphasis added). In addition, the appellate affirmance imposed
monopolization liability for all of the significant conduct that had
been alleged to support the additional, largely supererogatory legal
theories that were rejected as ground for additional liability.
It is accordingly entirely appropriate, and indeed necessary,
for the Court in this case ``to measure the remedies in the
decree as if they were fashioned after trial,'' Microsoft I, 56
F.3d at 1461, because they were ``fashioned after trial''
and appellate affirmance. The Court need not ``assume that the
allegations in the complaint have been formally made out''
(id.), but rather knows beyond doubt exactly which allegations were
proved. There is a ``judicial finding of relevant markets,
closed or otherwise, to be opened'' and ``of
anticompetitive activity to be prevented.'' Maryland v. United
States, 460 U.S. at 1004 (Rehnquist, J., dissenting). ``IT]hat
there was an antitrust violation,'' and ``the scope and
effects of the violation,'' were not assumed, as they must be
in a pretrial settlement, but proved to the satisfaction of two
courts. Id.
Very limited prosecutorial discretion remains in this situation.
The amorphous, policy-laden choices whether to bring a case and how
much to allege, are behind us. The predictive judgment as to the
chances of success on liability likewise is beyond serious dispute
in light of the unanimous affirmance of monopolization liability by
the en banc court of appeals. DOJ has some leeway in choosing a
remedy, but its chosen remedy must be ``adequate to remedy the
antitrust violations alleged in the complaint,'' United States
v. Bechtel Corp., 648 F.2d 660, 665 (9th Cir. 1981), under the well-
established legal standards for antitrust relief. See Microsoft III,
253 F.3d at 103. Those standards inform the ``public
interest'' determination under the Tunney Act, and, by contrast
with the ``public interest'' standing alone, are
judicially manageable without a doubt.
The DC Circuit has made crystal clear that a consent decree
``even entered as a pretrial settlement, is a judicial
act,'' so that ``the district judge is not obliged to
accept one that, on its face and even after government explanation,
appears to make a mockery of judicial power.'' Microsoft I, 56
F.3d at 1462. Judicial approval of the settlement in this case is
far more of a classic ``judicial act'' than the typical
settlement without proof of liability. As in the context of post-
conviction criminal sentencing, the Court must act as more than a
passive recipient of arrangements made between the parties
There is no serious question that a federal court may reject a
plea bargain in its sound discretion, Fed. R. Crim. P. 11,
Santobello v. New York, 454 U.S. 257, 262 (1971), for reasons that
may include the ``court's belief
[[Page 28365]]
that the defendant would receive too light a sentence under the
circumstances.'' United States v. Adams, 634 F.2d 830, 835 (5th
Cir. 1981).\3\ Granted, plea bargains in the criminal context
generally involve admissions of liability. But the case here, if
anything, is stronger here, where liability has been, not admitted,
but established after extensive litigation and affirmed by an en
banc court of appeals over the vigorous objection of the defendant.
---------------------------------------------------------------------------
\3\See also, e.g., United States v. Robertson, 250 F.3d
500, 509 (6th Cir. 2001); United States v. Greener, 979 F.2d 517,
521 (7th Cir. 1992); United States v. McGovern, 822 F.2d 739, 742
n.4 (8th Cir. 1987); United States v. Randahl, 712 F.2d 1274, 1275
(8th Cir. 1983).
---------------------------------------------------------------------------
At this stage, ``the discrepancy between the remedy and
undisputed facts of antitrust violations'' can ``be such
as to render the decree `a mockery of judicial
power.''' Massachusetts School of Law, Inc. v. United
States, 118 F.3d 776, 782 (DC Cir. 1997) (quoting Microsoft I, 56
F.3d at 1462). By contrast with the concerns expressed in the
pretrial settlement context about the intrusion of Tunney Act courts
on functions that are constitutionally allocated to the executive
branch, the situation after liability is established presents
opposite concerns under our system of separated powers, and of
checks and balances between the branches of government.
Constitutional concerns in this case would arise only if the Court
failed to apply the legal standards governing antitrust relief to
the adjudicated liability here. DOJ asks the Court not only to
abandon its traditional power over the relief to be imposed in an
adjudicated case, but also to ignore the clear command of Congress
to provide a check on the irresponsible exercise of power by a
suddenly and inexplicably compliant prosecutor. The Court should
refuse that suggestion.
2. The Extensive Record And Judicial Opinions Provide Clear,
Manageable Standards For Substantive Review Of The RPFJ
None of the authorities on which DOJ relies involved a full
trial in which liability was proved, much less one in which
liability was affirmed on appeal. Indeed, the statements quoted in
the CIS draw heavily on that fact--;that in each case there had
been no finding of liability, and that review of the settlement at
issue necessarily involved second-guessing DOJ's prosecutorial
discretion in making two rather standardless assessments: (1)
whether to bring a case at all, and thus place the matter in a
judicial forum, see Microsoft I, 56 F.3d at 1459-;1460, and (2)
the chances for success. See, e.g., Mid-America Dairymen, 1977 WL
4352, at *8 (Tunney Act ``did not give this Court authority to
substitute its judgment about the advisability of settlement by
consent judgment in lieu of trial'') (emphasis added).
Here, neither of these fundamentally discretionary prosecutorial
judgments is at issue. The decision to bring the case was made years
ago, and the case was litigated and won, establishing liability to a
known extent.
It is telling that in asking for broad deference DOJ places
heavy reliance on language from the Ninth Circuit's decision in
United States v. Bechtel Corp., 648 F.2d 660 (9th Cir. 1981). See
CIS 66-;67 & n.4; 66 Fed. Reg. 59,476. One could hardly
find a setting more distant from this one. Not only did Bechtel not
involve a finding of liability after full litigation and affirmance
on appeal; and not only did the setting there--;alleged
complicity in the ``Arab boycott'' of Israel in the mid-
1970s--;implicate the foreign policy powers of the executive
branch; but the issue before the curt in Bechtel was the defendant's
effort to avoid its own settlement by arguing that the settlement to
which it had agreed was ``not in the public interest.''
Bechtel, 648 F.2d at 665.\4\
---------------------------------------------------------------------------
\4\4 Decided in an equally remote context was United
States v. BNS, Inc., 858 F.2d 456 (9th Cir. 1988), in which the
Ninth Circuit approved a preliminary injunction, entered over DOJ's
objection, against a tender offer for an acquisition that a proposed
consent decree would have permitted.
---------------------------------------------------------------------------
As it happens, however, the court of appeals in Bechtel
enunciated the legal standard that should be applied here:
``whether the relief provided for in the proposed judgment was
adequate to remedy the antitrust violations alleged in the
complaint.'' Bechtel, 648 F.2d at 665 (emphasis added). That is
precisely the standard that DOJ wishes to avoid. Where liability is
a given, as it is here, the Court must ensure that the
``remedies negotiated between the parties and proposed by the
Justice Department clearly and effectively address the
anticompetitive harms'' that have been proved. United States v.
Thomson Corp., 949 F. Supp. 907, 913 (D.DC 1996). When the
``anticompetitive harms'' and their illegality have been
proved, the fit between those harms and the proposed remedies must
be closer than when those harms merely have been ``initially
identified,'' id., as is usually the case in Tunney Act
proceedings.
Even if there were no finding a liability, the Court would not
be compelled ``unquestionably [to] accept a consent decree as
long as it somehow, and, however inadequately, deals with the
antitrust problems implicated in the lawsuit.'' United States
v. Alcan Aluminum, Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985)
(citing United States v. AT&T, 552 F. Supp. 131,151 (D.DC 1982),
aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983). With
liability in place, however, the Court need not proceed ``on
the assumption that the government would have won.'' Gillette,
406 F. Supp. at 716 n.2.
The government did win. The Court in this case need not
``speculate in regard to the probability of what facts may or
may not have been established at trial.'' United States v. Mid-
America Dairymen, Inc., 1977 WL 4352, at *1. Those facts are a
matter of record.
Whatever narrow deference may be afforded here amounts only to
the tested rule that ``[i]t is not the court's duty to
determine whether this is the best possible settlement that could
have been obtained.'' Gillette, 406 F. Supp. at 716 (emphasis
added). Although the Court may not be able to insist on the
``best possible'' decree, the proof and affirmance of
liability require the Court to ensure that the RPFJ is at least
adequate on that record under well-established remedial principles.
Bechtel, 648 F.2d at 665.
The differences are real, but not dramatic, between the Court's
role in deciding whether to accept this settlement in Track I, and
in deciding in Track II what relief to impose at the request of
those plaintiffs who have not abandoned the pursuit of a full and
effective remedy in this case. In each track, the Court must measure
proposed remedies against the legal standards set out by the DC
Circuit and by the Supreme Court. In each track, the Court should
not approve a remedy that is inadequate to meet those standards. In
evaluating the RPFJ, the Court is not at liberty to substitute its
view of equally effective, or marginally more effective relief, if
the terms of the RPFJ are fully adequate to the task as the law
defines it. That is, the DOJ's choices among adequate alternatives
warrant deference, but its determination of what is adequate
warrants none. In the other track, the Court does have the liberty,
not merely to go beyond any decree that might be entered in this
track, but also to insist that the final decree address the
competitive issues in a way that satisfies the Court's view as to
the best and most effective means of opening the operating systems
market to competition, depriving Microsoft of the fruits of its
illegal conduct, and preventing similar monopolistic abuses in the
future. That is, while in this track of the proceeding the Court
cannot insist on the ``best possible settlement,''
Gillette, 406 F. Supp. at 716, so long as the proposed relief meets
the remedial standards anchored in antitrust law, in Track II the
Court has not only the power but the duty to impose the ``best
possible'' decree.
B. Broad Deference Is Particularly Circumstances Are Suspicious
1. Inappropriate Because The Microsoft's Manifestly Inadequate
Disclosure Under The Tunney Act's Sunshine Provisions Weighs
Strongly Against Judicial Deference To The Terms Of The RPFJ Section
2(g) of the Tunney Act requires Microsoft to file a ``true and
complete description'' of ``any and all written or oral
communications'' by it or on its behalf ``with any officer
or employee of the United States concerning or relevant to''
the proposed settlement. 15 U.S.C. 16(g) (emphasis
added). The only exception from this requirement is for settlement
negotiations between ``counsel of record alone'' and
``employees of the Department of Justice alone.''/d.
(emphasis added).
When Senator Tunney first introduced his bill, he focused on the
significance of the disclosure provision. ``Sunlight is the
best of disinfectants,'' he explained (quoting Justice
Brandeis), and thus ``sunlight * * * is required in the case of
lobbying activities attempting to influence the enforcement of the
antitrust laws.'' 119 Cong. Rec. 3449, 3453 (1973). Minor
amendments to Section 2(g) were designed ``to insure that no
loopholes exist in the obligation to disclose all lobbying contacts
made by defendants in antitrust cases culminating in a proposal for
a consent decree.'' H.R. Rep. No. 1463, at 12 (emphasis added).
The breadth of Microsoft's effort to use political pressure to
curtail this case has no parallel in the history of the antitrust
laws.
[[Page 28366]]
The ITT episode that prompted the Tunney Act pales in comparison. It
has been widely known that since 1998 Microsoft has comprehensively
lobbied both the legislative and executive branches of the federal
government in an effort to create political pressure to end this
case.\5\ But Microsoft did not disclose any of these contacts, much
less all of them, as the Tunney Act requires.
---------------------------------------------------------------------------
\5\See generally Declaration of Edward Roeder (attached).
See also, e.g., Ian Hopper, Microsoft Lobbied Congress Over Case,
SAN JOSE MERCURY NEWS, Jan. 11, 2002, at C3; Heather Fleming
Phillips, Washington Politicians Chime In On Microsoft, SAN JOSE
MERCURY NEWS, June 30, 2001, at A1; Rajiv Chandrasekaran & John
Mintz, Microsoft's Window of Influence,'' Intensive Lobbying
Aims to Neutralize Antitrust Efforts, WASH. POST, May 7, 1999, at A
1; James Grimaldi & Jay Greene, Microsoft Hard At Work Outside
Courtroom, SEATTLE TIMES, Feb. 17, 1999, at A1. See also Microsoft's
Political Donation In Question; South Carolina GOP Says Decision To
Quit Lawsuit Coincidental, CHI. TRIB., Dec. 25, 1998, at 3.
---------------------------------------------------------------------------
Rather, Microsoft disclosed only meetings that occurred during
the last round of settlement negotiations ordered by the Court.
Microsoft's insupportable interpretation of its statutory disclosure
duty effectively nullifies the sunshine provisions of the Act, which
are crucial to the Act's protection of the public interest.
a. Contacts With All Branches Must Be Disclosed.
All contacts with ``any officer or employee of the United
States'' must be disclosed. As Senator Tunney explained,
Included under [section 16(g)] are contacts on behalf of a
defendant by any of its officers, directors, employees, or agents or
any other person acting on behalf of the defendant, with any Federal
official or employee. Thus, * * * the provision would include
contacts with Members of Congress or staff, Cabinet officials, staff
members of executive departments and White House staff 119 Cong.
Rec. at 3453 (emphasis added). In other words, the disclosure
applies equally to contact with any branch of Government, including
the Congress. * * * [T]here is a great deal to be gained by having a
corporate official who seeks to influence a pending antitrust case
through congressional pressure, know that this activity is subject
to public view.
Id. Indeed, it is firmly established in other areas of the law
that ``officer'' of the United States includes Members of
Congress and their employees.\6\
---------------------------------------------------------------------------
\6\ee, e.g., Williams v. Brooks, 945 F.2d 1322, 1325 n.2
(5th Cir. 1991) (``a congressman is an ``officer of the
United States'' within the meaning of [28 U.S.C.
1442(a)(1)]''); Nebraska v. Finch, 339 F. Supp. 528, 531 (D.
Neb. 1972) (``It is * * * clear that a representative to the
Congress of the United States is an officer of the United States,
not an officer of the district in which he was elected.'');
United States v. Meyers, 75 F. Supp. 486, 487 (D.DC 1948)
(``Obviously, a Senator of the United States is an officer of
the United States.'').
---------------------------------------------------------------------------
But Microsoft did not disclose its extensive and heavily
reported lobbying of Congress. Indeed, upon the remand to the
District Court, Microsoft's lobbying of Congress produced a letter
signed by more than 100 Members urging a swift settlement. But
Microsoft did not disclose even that lobbying, aimed at pressuring a
swift capitulation by the government despite its victory on appeal,
directly before the last round of settlement negotiations.
b. The ``Counsel of Record'' Exception Is Very Narrow.
Section 16(g) provides a narrow exception from disclosure for
contacts between ``counsel of record alone'' (emphasis
added)--;that is, without any other corporate officers or
employees also involved--;and ``the Attorney General or the
employees of the Department of Justice alone.'' As Senator
Tunney explained, this ``limited exception'' for attorneys
of record ``is designed to avoid interference with legitimate
settlement negotiations between attorneys representing a defendant
and Justice Department attorneys handling the litigation. * * *
[T]he provision is not intended as loophole for extensive lobbying
activities by a horde of `counsel of record.'' 119 Cong.
Rec. at 3453. The House Report further clarifies that this
``limited exception'' distinguishes
```lawyering'' contacts of defendants from their
`lobbying contacts'.'' H.R. REP. No. 1463, supra,
at 9.
Microsoft did not disclose the well-publicized participation in
the last round of settlement negotiations of its lobbyist-lawyer,
Charles F. ``Rick'' Rule. It appears that the critical
``negotiations'' leading to the RPFJ took place, not in
the offices of Microsoft's counsel of record, but ``in
Justice's offices and those of Microsoft legal consultant Rick
Rule.'' Paul Davidson, Some States Fear Microsoft Deal Has Big
Loopholes, USA TODAY, Nov. 5, 2001. Rule has been a registered
lobbyist for Microsoft for some years, but was not named as counsel
of record until November 15, 2001, after the settlement negotiations
were complete. See Notice of Appearance (D.DC filed Nov. 15, 2001).
That designation--;long after the settlement deal had been
struck cannot retroactively shield his extensive prior contacts with
Mr. James or other executive or legislative officials from
disclosure. Contacts by ``[a]ttorneys not counsel of
record'' must be disclosed. Id. Of course, Microsoft's many
other lobbyists do not conceivably come within this exception. But
Microsoft concealed all of those lobbying contacts.
c. All Communications Urging The Government To Abandon Or Settle
The Case Were ``Relevant To'' The Proposed Settlement
Section 16(g) requires the disclosure of all contacts
``concerning or relevant to'' a proposed settlement. This
statutory definition is intentionally broad. Microsoft's disclosure
interprets the word ``concerning'' very narrowly, so that
the provision covers only actual settlement discussions--;and
only the last round of them. In Microsoft's view, the Tunney Act
would require disclosure only of the very meetings that must precede
any settlement. Microsoft reads the words ``relevant to''
right out of the statute. That this statutory provision is broad is
obvious by its very terms; in order for the phrase ``relevant
to'' not to be mere surplusage, it must encompass contacts less
directly focused on the settlement than those that
``concern[]'' that agreement.
Senator Tunney an example: ``the provision would require
disclosure * * * of a meeting between a corporate official and a
Cabinet officer discussing `antitrust policy'' during the
pendency of antitrust litigation against that corporation.''
119 Cong. Rec. at 3453. The Act borrows from evidentiary concepts,
including the privilege for settlement discussions, which prompted
the narrow exception for counsel of record. The evidentiary concept
of relevance is very broad. See Fed. R. Evid. 401. ``Relevance
of evidence is established by any showing, however slight, that the
evidence'' makes a legally important factor ``more or less
likely.'' United States v. Mora, 81 F.3d 781,783 (8th Cir.
1996) (emphasis added) (citation omitted). Plainly
``relevant'' to the question whether a defendant's
lobbying activities influenced the existence and terms of a consent
decree are contacts with the administration, and with members of
Congress, that touch on the desirability of the government's
agreeing to end the case. It is startling, for example, that
Microsoft would omit reference to its efforts to enlist support for
congressional proposals that would have cut DOJ's funding for the
pursuit of this case, and for antitrust enforcement in high
technology industries in general.\7\
---------------------------------------------------------------------------
\7\See Chandrasekaran & Mintz, supra, WASH. POST, May
7, 1999, at A 1; Grimaldi & Greene, supra, SEATTLE TIMES, Feb.
17, 1999, at A1.
---------------------------------------------------------------------------
Disclosure under Section 2(g) is not usually burdensome; most
defendants do not try to win their case politically rather than in
the courtroom. Microsoft's massive and unprecedented effort to
distort the judicial process through political pressure makes its
compliance burdensome, but all the more necessary. It is exactly
this sort of manipulation that the Tunney Act was designed to
discourage by bringing it to light.
d. Microsoft's Flouting Of Its Statutory Duty Counsels
Painstaking Judicial Scrutiny Of The RPFJ
Microsoft's cunning ``interpretation'' of the
statutory disclosure requirements--;so that disclosures reach
only the very settlement discussions that the Tunney Act was not
concerned about--;sheds considerable light on Microsoft's likely
``interpretations'' of any remedy imposed on it,
especially one like the RPFJ of which it can claim to be an equal
drafter, if not the principal author. Microsoft's disclosure is so
inadequate as to raise questions about Microsoft's good faith. The
filing includes no disclosure of any lobbying contacts between
Microsoft and the administration; it includes no disclosure of any
contacts between Microsoft and members of Congress; it includes no
disclosure of any contacts whatsoever before September 27, 2001,
although it is well known that Microsoft and the government have
tried to settle the government's antitrust action since before it
was filed, and that Microsoft lobbied Congress to bring pressure on
DOJ to settle or simply abandon the case.
Microsoft should face contempt sanctions for its certification
``that the requirements of [Section 16(g)] have been complied
with and that such filing is a true and complete description of such
communications known to the defendant or which the defendant
reasonably should have known.'' DOJ should refuse to acquiesce
in Microsoft's deception. Although DOJ cannot be expected to be
[[Page 28367]]
aware of all of Microsoft's lobbying of Congress in an effort to
create pressure for a favorable settlement, DOJ should reveal the
end-product of that pressure in the form of communications from
Members and their staffs. And there is no excuse for DOJ to be
complicit with Microsoft when it comes to contacts with DOJ itself.
In particular, DOJ certainly is aware of Mr. Rule's lobbying
contacts with before he belatedly appeared as counsel after the
settlement had been concluded. The proper resolution of this issue
is the appointment of a special master with the ability to examine
the relevant participants under oath. In view of its responsibility
to enforce 15 U.S.C. 16(g) along with the rest of the
antitrust laws, DOJ should request (and support) the implementation
of such a procedure by the Court.
2. The RPFJ Represents A Swift And Significant Retreat By DOJ
Another factor counseling against deference here is the DOJ's
striking capitulation to Microsoft's view of an appropriate remedy,
despite the unanimous affirmance of the core of DOJ's case. The
insubstantial provisions of the RPFJ provide ample ``reason to
infer a sell-out by the Department,'' Massachusetts School of
Law, 118 F.3d at 784.
After prevailing on liability in the district court, DOJ sought
and obtained not only structural relief--;as is
``common'' in broad monopolization cases, see Microsoft
III, 253 F.3d at 105--;but also ``interim'' conduct
restrictions that clearly could not stand alone as a monopolization
remedy. DOJ earlier recognized that the interim conduct remedies
were stopgaps to keep the competitive situation from continuing to
decline in the year or so before divestiture jumpstarted
competition. See Plaintiffs'' Memorandum in Support of Proposed
Final Judgment 30-;31 (corrected version) (filed May 2, 2000).
On remand, DOJ abandoned the structural relief that it formerly
found necessary, even though liability on the monopolization
claim--;which alone could support structural relief in the first
place--;was affirmed with minor modifications. DOJ stated that
it would pursue relief ``modeled upon'' the interim
``conduct-related provisions,'' along ``with such
additional provisions as Plaintiffs may conclude are necessary to
ensure that the relief is effective, given their decision not to
seek a structural reorganization of the company.'' Joint Status
Report 2 (filed Sept. 20, 2001).
Instead of fortifying the proposed decree to compensate for the
abandonment of structural relief, however, DOJ moved considerably
backward from the interim remedies, narrowing Microsoft's duties and
providing broad exceptions. Indeed, the RPFJ is weaker than the
final proposal in the settlement negotiations that took place during
Spring 2000, before any judgment of antitrust liability, much less
appellate affirmance.\8\ Then, there was litigation risk as to
liability. Now there is none. Nonetheless, the definitions and
obligations in the current RPFJ fall short of those in the pre-
judgment offer.
---------------------------------------------------------------------------
\8\8 That final proposal, known as Draft 18, was formerly
posted on a now-defunct website, www.contentville.com, in connection
with a review of a book that detailed the progress of this case. The
text of Draft 18 may now be viewed at www.ccianet.org/legal/ms/draft
18.php3.
---------------------------------------------------------------------------
``[T]he government's virtual abandonment of the relief
originally requested'' is ``a sufficient showing that the
public interest was not * * * adequately represented'' in the
RPFJ. United States v. Associated Milk Producers, Inc., 534 F.2d
113, 117 (8th Cir. 1976). It is precisely when DOJ appears to have
``abruptly ``knuckled under,'' id. at 118, as here,
that judicial scrutiny under the Tunney Act should be most
substantive and searching.
3. The CIS Overstates The Terms Of The RPFJ, Reflecting The
Indefensibility of the RPFJ Itself
The CIS underscores the need for close scrutiny of the actual
terms of the RPFJ and their effectiveness. The CIS seeks to convey
an image of stringency by adding terms to provisions of the RPFJ
that are absent from the RPFJ itself. But it is the RPFJ, not the
CIS, that defines the enforceable bargain between the parties. As
the Supreme Court has recognized, ``any command of a consent
decree * * * must be found within its four comers, and not by
reference to any purposes of the parties.'' United States v.
ITT Continental Baking Co., 420 U.S. 223,233 (1975) (citations and
internal quotation marks omitted). While the CIS may be useful in
interpreting ambiguous terms in the REFJ, the wording of the CIS is
not independently enforceable. Only the RPFJ would be entered as a
judgment, and ``[t]he government cannot unilaterally change the
meaning of a judgment.'' Bechtel, 648 F.2d at 665. It would be
different, of course, if the CIS or its relevant refinements were
``expressly incorporated in the decree.'' ITT Continental,
420 U.S. at 238. In particular, the CIS goes beyond the text of the
RPFJ to paint a far stricter picture of Microsoft's disclosure
obligations than the RPFJ supports. It is no wonder that DOJ seeks
to defend a document--;the CIS--;to which Microsoft would
not be bound, rather than the far weaker RPFJ that alone would be
judicially enforceable. The CIS cannot transform the RPFJ into a
better deal for competition and consumers than it is.
II. THE RPFJ MUST MEET THE LEGAL STANDARDS NORMALLY APPLICABLE
TO ANTITRUST REMEDIES
The ``public interest'' standard in the Tunney Act is
not without content. Rather, those ``words take meaning from
the purposes of the regulatory legislation,'' NAACP v. Federal
Power Comm'n, 425 U.S. 662, 669 (1976). The well-developed
jurisprudence of antitrust remedies provides sound guidance for the
public interest determination.
Although a district court should not ``engage in an
unrestricted evaluation of what relief would best serve the
public,'' Microsoft I, 56 F.3d at 1458 (quoting Bechtel, 648
F.2d at 666) (emphasis added), principled restrictions for that
evaluation in this case arise from the extensive, unvacated Findings
of Fact, the comprehensive opinion affirming monopolization
liability on appeal, and the long-standing remedial principles of
antitrust law, principles that the DC Circuit instructed the
District Court to apply to any proposed relief on remand. See
Microsoft III, 253 F.3d at 103. The ``appropriate''
inquiry (Bechtel, 648 F.2d at 666) is ``whether the relief
provided for in the proposed judgment [i]s adequate to remedy the
antitrust violations'' that were proved at trial and affirmed
on appeal. Id. at 665.
The DC Circuit provided benchmarks rooted in Supreme Court
jurisprudence to guide the evaluation whether a remedy is
``adequate.'' A remedy in this case must serve ``the
objectives that the Supreme Court deems relevant,'' Microsoft
III, 253 F.3d at 103. That is, a remedy must ``seek to * * *
[1] `terminate the illegal monopoly, [2] deny to the defendant
the fruits of its statutory violation, and [3] ensure that there
remain no practices likely to result in monopolization in the
future.''' Id. at 103 (quoting Ford, 405 U.S. at 577, and
United Shoe, 391 U.S. at 250).\9\
---------------------------------------------------------------------------
\9\9 It is telling that the CIS ignores the remedial
standard that the DC Circuit set out. See CIS 24, 66 Fed. Reg.
59,465. The CIS submerges the need to craft relief that tends to
``terminate'' the illegally maintained monopoly, despite
the court of appeals'' contrary instructions. See 253 F.3d at
103. Rather, the CIS endorses a watered-down standard in order to
set a lower bar for the RPFJ to clear, in tacit recognition that the
RPFJ cannot satisfy the DC Circuit's standard. The CIS would require
relief only to ``[e]nd the unlawful conduct,'' to prevent
recurrence of the violation ``and others like it,'' and to
``undo its anticompetitive effects.'' CIS 24, 66 Fed. Reg.
59,465. The RPFJ falls short even of these modified, more modest
objectives, however, particularly when measured by its failure to
prevent future violations that work slight variations on the conduct
condemned by two courts, and its failure to ``undo'' any
of the ``anticompetitive effects'' of Microsoft's
sweeping, coordinated, and successful anticompetitive campaign.
---------------------------------------------------------------------------
A. The Relief Should ``Terminate The Illegal
Monopoly''
In a monopolization case, the problem to be remedied is the
monopoly itself. Because the RPFJ would leave the illegally
maintained monopoly in place without making the market structure
more competitive, to satisfy this criterion relief must exclude the
possibility that Microsoft again will prolong its monopoly power by
abusing it. At a minimum, however, a monopolist should emerge from a
remedy facing competitive threats of similar scope and significance
to those it illegally stamped out. The DC 35
Circuit recognized that the illegal conduct in this case was
aimed at increasing and hardening the applications barrier to entry
that insulates Microsoft's OS monopoly. See id. at 55-;56, 79.
The CIS similarly recognized that ``[c]ompetition was injured
in this case principally because Microsoft's illegal conduct
maintained the applications barrier to entry * * * by thwarting the
success of middleware.'' CIS 24, 66 Fed. Reg. 59,465. A remedy
that does not literally terminate the monopoly accordingly must
undermine the applications barrier to entry that was strengthened by
the illegal conduct.
B. The Relief Should Prevent ``Practices Likely To Result
In Monopolization In The Future''
To satisfy this criterion, any remedy must both (1) prevent the
monopolist from
[[Page 28368]]
engaging in the same sorts of conduct that underlie the current
finding of liability, and (2) prevent other types of conduct that
could preserve the monopoly. The ``monopolization in the
future'' that must be prevented includes both the simple
maintenance of the current monopoly and the expansion of that
monopoly's scope. Relief should make it impossible for the
monopolist to continue its pattern of using current market power to
foreclose imminent or contemplated competitive threats. Because
Microsoft has been ``caught violating the [Sherman] Act,''
it ``must expect some fencing in.'' Otter Tail Power Co.
v. United States, 410 U.S. 366, 381 (1973).
A monopolist that has been litigating for years no doubt has
developed anticompetitive techniques that achieve the same goals
through slightly different means. Microsoft embarrassed DOJ by
obtaining language in the 1995 consent decree that was tailored to
exclude, at least arguably, the company's next planned
anticompetitive initiative. Exemptions, provisos, and narrow
definitions should be scrutinized on the assumption that Microsoft
again has tried to ensure that the RPFJ will not impede currently
planned anticompetitive acts.
C. The Relief Should ``Deny To The Defendant The Fruits Of
Its Statutory Violation''
Relief in an antitrust case not only must prevent
``recurrence of the violation,'' but also must
``eliminate its consequences.'' National Society of
Professional Engineers v. United States, 435 U.S. 679, 697 (1978).
Thus, a remedy should prevent a monopolist from retaining the
accrued competitive benefits of its illegal conduct. These
advantages may permit a monopolist to maintain its monopoly without
additional antitrust violations. Relief that allows a wrongdoer the
full benefit of its illegal activity fails the most basic test of
any remedy under any branch of the law.
In this case, the ``fruits'' of Microsoft's illegal
conduct may be the most important target of a responsible remedy.
One of the chief advantages that Microsoft gained by incorporating
the Internet browser into the Windows monopoly was the ability to
control not only the browser for its own sake, suppressing the
possibility that the Internet browser would provide a source of
alternate, OS-neutral APIs, but also the browser as the gateway to
all Internet computing. As the Litan/Noll/Nordhaus Comment explains
(at 58-;60), one of the most important fruits of monopolistic
conduct is the suppressed development of competitive threats. That
is why a forward-looking remedy must be rooted in current market
conditions, and must seek to restore competition to where it likely
would have been in the absence of the anticompetitive conduct.
Litan/Noll/Nordhaus Comment 35-;36, 40-;42, 58-;59.
D. Broader Principles Applicable To Injunctive Relief Also
Should Inform The Analysis Of The RPFJ
The remedial analysis here resembles other remedial
undertakings. Although civil antitrust relief is not punitive,
effective antitrust relief shares with criminal sentencing the broad
goals of incapacitation and deterrence. As much as possible, an
illegal monopolist should be flatly prevented from engaging in the
same or similar suppression of competition in the future. In
addition, the remedy should be enforceable with sufficient speed and
certainty to make stiff contempt sanctions likely if the monopolist
nonetheless manages to engage in anticompetitive conduct again.
The point of antitrust relief after a finding of liability is to
learn from history, not to permit the offender to repeat it. This
consideration is particularly acute here, where the purposes of the
expiring 1995 consent decree clearly have not been realized, but
rather have been evaded or neutralized.
Because antitrust relief necessarily is forward-looking, a
remedy's effectiveness should be judged with respect to where the
market is going, not where it has been. Microsoft has directed its
efforts to destroy the competitive threat of Internet computing. The
more functionality that is performed on the Web, the less
significant the operating system on a particular client device
connected to the Web. Thus, Internet computing represents the
maturation of the competitive threat posed by the Internet browser
and squelched by Microsoft's illegal conduct. The current industry-
wide focus on Web-based services reflects the realization that a
competitive market still survives in this sector. The Court will
have to consider whether the RPFJ in fact is ``all about the
past, not the future battle in Internet services[, and] doesn't
touch the company's ability to use Windows XP to extend its monopoly
to these new areas.'' Walter Mossberg, For Microsoft, 2001 Was
A Good Year, WALL ST. J., Dec. 27, 2001, at B1. See Stiglitz/Furman
Dec. 38-;39.
III. THE RPFJ FALLS FAR SHORT OF PROVIDING A REMEDY FOR PROVEN
OFFENSES UPHELD ON APPEAL
The RPFJ lights upon narrowly defined practices and prohibits
narrowly defined versions of them, in ways that might have
mitigated, but would not have ended, the very conduct at issue in
this case. The RPFJ does not measure up to the sweeping
monopolization violations found by two courts. The RPFJ's provisions
do not address Microsoft's ability and incentives to strengthen the
applications barrier to entry, which was the underlying issue at the
core of the case, instead focusing on techniques of monopolization
that have been defined so narrowly that Microsoft's actual behavior
need not change. And when addressing a precise technique that
directly implicated the reinforcement of the applications barrier to
entry--;Microsoft's ability to stop porting its Office
productivity suite to the Apple Macintosh platform--;the RPFJ
permits Microsoft to retain the ability to repeat that threat in
slightly altered contexts.
A. DOJ's Effort To Minimize The Scope Of The DC Circuit's
Affirmance Cannot Obscure The Failure Of The RPFJ To Remediate
Clear, Proven Violations
DOJ has tried to lower the bar for approval of its proposal by
minimizing the most significant appellate imposition of
monopolization liability in the past half-century, and adopting
Microsoft's crabbed view of its own liability. In Senate testimony,
Assistant Attorney General James made the remarkable assertion that
the DC Circuit, despite affirming ``the District Court's
holding that Microsoft violated 2 of the Sherman Act in a
variety of ways,'' 253 F.3d at 59, somehow precluded any
consideration, for remedial purposes of Microsoft's astonishing
anticompetitive campaign as a whole. See James Testimony 5. To the
contrary, the court of appeals never rejected the common-sense
notion that ``Microsoft's specific practices could be viewed as
parts of a broader, more general monopolistic scheme''; much
less did the court of appeals insist (or even hint) that
``Microsoft's practices must be viewed individually'' for
all purposes. Id. Rather, the court of appeals clearly considered
some illegal acts in the context of others. Thus, the court held
that Microsoft's exclusive contracts with ISVs, though affecting
only ``a relatively small channel for browser
distribution,'' had ``greater significance because * * *
Microsoft had largely foreclosed the two primary channels to its
rivals.'' 253 F.3d at 72.
The DC Circuit's examination of the divestiture remedy is
telling. If the many separately illegal monopolistic acts could not
be viewed as cumulatively contributing to the illegal maintenance of
Microsoft's monopoly, divestiture would have been an unthinkable
remedy, since no specific act held illegal on appeal changed the
structure of the company or of the market. But the court of appeals
recognized that divestiture could be justified if the many separate
illegal acts, taken together, were shown to have had a sufficiently
certain causal connection to justify using structural relief to
undermine, if not end, the monopoly. See 253 F.3d at 80,
106-;107.
The court of appeals did ``reverse [the] conclusion that
Microsoft's course of conduct separately violates 2 of the Sherman
Act.'' 253 F.3d at 78 (emphasis added). But the reversal
occurred because the district court purported to find that a series
of acts that did not constitute separate, free-standing antitrust
violations had a ``cumulative effect * * * significant enough
to form an independent basis for liability''--;but never
specified acts other than those that separately violated Section 2
that might be aggregated into such a violation. Id.
It is a remarkable leap from this unremarkable holding to the
absurd notion that Microsoft's extraordinary series of separate
adjudicated antitrust violations cannot be considered together for
any purpose. Even the CIS recognizes that those violations are part
of one coordinated and ``extensive pattern of conduct designed
to eliminate the threat posed by middleware.'' CIS 11, 66 Fed.
Reg. 59,462. They should be remedied as such.
B. The RPFJ Simply Restates The Antitrust Laws At Critical
Points And Thus Forfeits The Clarity And Efficiency Of The Contempt
Process
Another striking feature of the RPFJ is its repeated reliance on
a reasonableness standard of conduct that simply imports full rule-
of-reason analysis under the antitrust laws. Antitrust remedies,
like other injunctive decrees, are supposed to be amenable to swift
and sure enforcement,
[[Page 28369]]
according to standards that give warning of what is forbidden and
what is permitted both to the wrongdoer and to its potential
victims. But the RPFJ would regularly require the decree Court to
determine whether Microsoft's conduct was ``reasonable.''
For example, the Court would have to determine
*whether volume discounts were ``reasonable''
or exclusionary (RPFJ III(B)(2));
*whether technical requirements for the bootup sequence
that Microsoft imposed on OEMs were ``reasonable'' (id.
III(C)(5));
*whether the terms on which Microsoft makes
Communications Protocols available are ``reasonable'' (id.
III(E));
*whether exclusivity requirements imposed on ISVs were
``reasonable'' in ``scope and duration'' (id.
III(F)(2)); see also id. (III(G)(2));
*whether technical requirements designed to force the
invocation of Microsoft Middleware despite contrary consumer or OEM
preferences are ``reasonable'' (id.
III(H)(2)[second]);
*whether the licensing terms accompanying required
disclosures, and terms of mandatory cross-licenses required for
access to the disclosures, are ``reasonable'' (id. ???*
and whether Microsoft's bases for excluding ISVs from access to
security-related protocols are ``reasonable'' (id.
III(J)(2)(b)-;(c)).
It is telling that the RPFJ states so many of its provisions in
terms that simply duplicate the antitrust rule of reason. Rule of
reason disputes are notoriously difficult to litigate, see Arizona
v. Maricopa County Medical Soc., 457 U.S. 332, 343 (1982) (noting
``extensive and complex litigation'' involving
``elaborate inquiry'' at ``significant costs''),
--; and difficult for plaintiffs to win. These provisions add
nothing to the antitrust laws themselves, either in clarity of
obligation or in efficiency of enforcement. That is no remedy at
all.
C. The RPFJ Provides No Remedy For Microsoft's Suppression Of
The Browser And Java.
As noted above, perhaps the most glaring deficiency of the RPFJ
is that it does nothing to restore the competitive threats to
Windows posed by the Internet browser and cross-platform Java. That
cannot be an oversight. The bulk of the evidence, and much of the
opinion of the court of appeals affirming liability, focused on
Microsoft's successful efforts to suppress these threats to the
applications barrier to entry. See Microsoft III, 253 F.3d at
58-;78. Even the CIS recognizes the primacy of these products
in the case. See CIS 10-;17, 66 Fed. Reg. 59,462-;463.
Yet the RPFJ does not change the competitive picture for either
product in the least. The RPFJ does not deprive Microsoft of these
``fruits'' of its illegal conduct, but instead takes that
illegal conduct, and the advantages derived from it, as a tacit
baseline for future competition. The RPFJ leaves Microsoft with the
full benefit not only of the years of insulation from the
competitive threats posed by those products, but also of the
expanded power it has accumulated by incorporating Internet Explorer
into the Windows monopoly. Microsoft thus has more, and stronger,
weapons to suppress any middleware threats that it identifies in the
future, since its monopoly control over the browser--;now
labeled part of the Windows monopoly product--;provides
Microsoft with complete control over the universal client for
Internet computing. The RPFJ's approach is like sentencing a bank
robber to probation, but letting him keep his weapons and the loot.
But the RPFJ's failure to provide relief that restores the
specific competitive threats that Microsoft illegally suppressed is
worse than that. In a platform technology market like that for PC
operating systems, single standards tend to prevail, so that only
sweeping changes can dislodge the incumbent. Platform threats are
very rare. It could easily be another five or ten years or more
before a comparable threat arises again; certainly no threat of
similar strength to the Internet browser or Java has surfaced in the
nearly seven years since Microsoft began the course of illegal
conduct condemned by the court of appeals. See Stiglitz/Furman Dec.
35-;36. That is what makes anticompetitive conduct directed at
them so potentially profitable. The RPFJ makes that conduct
profitable beyond any rational actor's wildest dreams, and greatly
increases the incentives for its repetition. Having been caught
illegally suppressing two related platform threats, Microsoft
retains all the benefits that it sought through its illegal acts.
By eliminating Navigator, Microsoft has not only eliminated
consumer choice in browsers, but it also seized the power to control
the interfaces and protocols through which an enormously valuable
set of Internet applications--;ranging from instant messaging
and e-mail to streaming video and e-commerce--;are delivered to
desktop computers and other digital devices. Microsoft's Internet
Explorer is now the bottleneck through which all Internet-related
middleware must pass. Instant messaging and media player technology
are equally dependent on browser software. Microsoft has also seized
the power to decide whether that browser functionality will be
ported to any competing operating system, and, if so, to which ones.
Finally, in destroying Navigator, Microsoft has also destroyed an
important alternative distribution channel, one free of Microsoft's
control or influence, through which Microsoft's competitors could
formerly distribute middleware runtimes and products to desktop
consumers and application developers.
Although Navigator has practically disappeared from the
competitive scene, Java has not. But Java's importance has been
limited to servers, where Microsoft has a leading share but not yet
an operating systems monopoly. Microsoft's conduct appears to have
assured that Java will not function as cross-platform middleware for
client computers. Java thus poses no threat to the desktop OS
monopoly. But the RPFJ lets Microsoft keep that anticompetitive
benefit of its conduct.
IV. THE ICON-FOCUSED OEM FLEXIBILITY PROVISIONS ARE INEFFECTIVE
RPFJ III(H)(1)-;(2)[first] superficially
allow OEMs and end users to rearrange icons and menu entries
relating to middleware.\10\ These provisions are hollow, however.
Section III(H)(1) duplicates only what Microsoft unilaterally agreed
to permit OEMs to do back on July 11, 2001. And the end-user
provisions simply restate and preserve end-users'' longstanding
options to delete icons and menu entries if they right-click and
delete or drag the icon or menu entry to the Recycle bin. The
default provisions in Section III(H)(2) are so limited, and so fully
subject to Microsoft's architectural control, as to be competitively
meaningless as well.
---------------------------------------------------------------------------
\10\10 See n.2, supra.
---------------------------------------------------------------------------
The icon provisions do not adequately address the competitive
harms of Microsoft's adjudicated misconduct because Microsoft
remains able to ensure that the Microsoft versions of middleware
will appear, ready to be invoked by applications, on every PC. Even
if the icon provisions had greater competitive significance in
theory, they are unlikely to have any significance in fact, because
few if any OEMs are likely to take advantage of the options
provided. DOJ cannot claim to be unaware of this market reality.
These provisions are mere window-dressing. See Stiglitz/Furman Dec.
35.
A. The PFJ Permits Microsoft's To Continue Illegally Commingling
Middleware Code With The Code For The Monopoly Operating System
The RPFJ capitulates on DOJ's most hard-fought and significant
substantive victory: the finding that Microsoft illegally preserved
its monopoly by commingling the middleware code with the operating
system, foreclosing the competitive threat to Windows while
effectively expanding the scope of the monopoly to encompass
middleware. DOJ's inability to enforce the 1995 consent decree
against the binding of IE to Windows, see United States v.
Microsoft, 147 F.3d 935 (DC Cir. 1998) (``Microsoft II''),
was widely viewed as prompting this action. The conduct itself was
viewed as the most successful in furthering Microsoft's
anticompetitive goals.
Rather than repeat and strengthen the prohibition in the 1995
decree that failed to achieve its goals, the RPFJ does not even
impose the type of superficial prohibition applied to other conduct
condemned at trial and on appeal. To the contrary, under the RPFJ,
the operating system is whatever Microsoft says it is, and Microsoft
can commingle any new product to the monopoly
product--;foreclosing competition for the OS and the new product
alike. See Stiglitz/Furman Dec. 34-;37. Not only does Microsoft
preserve its anticompetitive gains, but it obtains a green light to
repeat the same conduct to destroy any new middleware threats. In a
market characterized by serial dominance, an incumbent monopolist
may need only to suppress one threat every few years in order to
make its monopoly virtually permanent. Cf. id. at 35-;36. A
continued ability to commingle middleware gives Microsoft limitless
tenure over the OS market. If Microsoft emerges from this case free
to bind middleware to the OS, this action will be an exercise in
futility.
1. The DC Circuit Specifically Condemned Commingling Twice
[[Page 28370]]
DOJ's victory on the commingling point was crystal clear, and
repeatedly underscored by the court of appeals. The court of appeals
recognized that ``Microsoft's executives believed'' that
``contractual restrictions placed on OEMs would not be
sufficient in themselves'' and therefore ``set out to
bind'' IE ``more tightly to Windows 95 as a technical
matter.'' Microsoft III, 253 F.3d at 64 (quoting Findings, 84
F. Supp.2d at 50 ( 160)). In the CIS (and in Assistant
Attorney General James'' Senate testimony), DOJ appears to
assume that icon-based relief that subjects some Microsoft
Middleware Products to the Add/Remove utility equates with relief
for commingling code. Thus, the CIS blends the two offenses in
stating that Microsoft violated Section 2 when it ``integrated
Internet Explorer into Windows in a non-removable way while
excluding rivals.'' CIS 7, 66 Fed. Reg. 59,461. In affirming
liability for both courses of conduct, however, the court of appeals
clearly distinguished between Microsoft's ``excluding IE from
the `Add/Remove Programs'' utility'' and its
``commingling code related to browsing and other code in the
same files.'' 253 F.3d at 64-;65, 67. The court of appeals
found no justification for commingling code or, indeed, more
broadly, for ``integrating the browser and the operating
system.'' Id. at 66. One could hardly ask for a clearer
statement.
Microsoft argued bitterly against liability for commingling, and
for a declaration that its product design decisions were beyond the
reach of the antitrust laws. Instead, the DC Circuit pointedly
rejected Microsoft's argument that it ``should vacate
Finding of Fact 159 as it relates to the commingling of code.''
Microsoft III, 253 F.3d at 66; see Findings, 84 F. Supp.2d at
49-;50 ( 159). And the court of appeals
``conclude[d] that such commingling has an anticompetitive
effect,'' because it ``deters OEMs from pre-installing
rival browsers, thereby reducing the rivals'' usage share and,
hence, developers'' interest in rivals'' APIs as an
alternative to the API set exposed by Microsoft's operating
system.'' 253 F.3d at 66 (emphasis added). See generally id. at
64-;67. That is, commingling helps reinforce the applications
barrier to entry that shields the Windows monopoly.
The DC Circuit's holding reflected a principle of critical
importance to the enforcement of the antitrust laws in the software
industry, where the complementarity of different programs makes
product design a potentially devastating weapon to foreclose
competition: a ``monopolist's product design decisions''
can violate the antitrust laws just as any other economic conduct
can. 253 F.3d at 65. Product design decisions may be grossly
anticompetitive, particularly in the software industry where lines
of code can be packaged (and marketed) in many different ways
without affecting the operation of programs once they are installed.
As Microsoft's James Allchin recently acknowledged, software
``code is malleable,'' so that ``[y]ou can make it do
anything you want.'' Microsoft Net Profit Fell 13% in Recent
Quarter, Wall St. J. Europe, Jan. 18, 2002, 2002 WL-;WSJE
3352885 (quoting Allchin).
Lest there be any doubt on the matter, the court of appeals
flatly rejected Microsoft's reheating petition aimed squarely at the
remedial issue. Microsoft specifically sought to preclude relief
that addressed the commingling violation, and instead to treat the
commingling and the lack of add/remove functionality as the same.
Microsoft's reheating petition made clear that the ``ruling
with regard to `commingling'' of software code is
important because it might be read to suggest that OEMs should be
given the option of removing the software code in Windows 98 (if
any) that is specific to Web browsing [as opposed to] removing end-
user access to Internet Explorer.'' Appellant's Petition
for Reheating, at 1-;2 (July 18, 2001). Microsoft argued that
affirmance only on the ground of the add/remove issue would ensure
that the remedy was tightly confined, because the ``problem
will be fully addressed by including Internet Explorer in the Add/
Remove Programs utility, which Microsoft has already announced it
will do in response to the Court's decision.'' Id. at 2.
The court of appeals rejected this argument out of hand, adding
this remarkable sentence in a terse per curiam order denying
reheating: ``Nothing in the Court's opinion is intended to
preclude the District Court's consideration of remedy issues.''
Order at 1 (DC Cir. Aug. 2, 2001) (per curiam). Nonetheless, the
RPFJ would settle this case as if rehearing had been granted,
requiring Microsoft only to allow OEMs and end users to ``add/
remove'' the icons for middleware. This is insufficient to
remedy technological binding--;commingling [] since it does
nothing to remove the underlying middleware code on which developers
will continue to rely. If only the Internet Explorer icon is removed
from the desktop, the IE middleware remains, and with it the same
applications barrier issues that Microsoft preserved by stifling
competition by Netscape and Java.
It is true that the interim conduct relief in the vacated Final
Judgment required only that Microsoft offer an operating system
where OEMs and end-users were permitted to remove end-user access to
the middleware components, United States v. Microsoft Corp., 97 F.
Supp.2d 59, 68 (D.DC 2000), vacated, 253 F.3d 34 (DC Cir. 2001), a
provision similar to that in RPFJ III(H)(1)[first].
That transitional provision of course assumed the existence of
structural relief that would remove Microsoft's economic incentive
to bind middleware to the OS unless the binding was independently
justifiable. Without a structurally more competitive market, those
modest provisions would be meaningless, and would permit Microsoft
to follow much the same course that triggered the lawsuit.
There is no excuse for DOJ's failure to do anything about one of
the principal, and most easily replicable, violations in the case.
Even one of Microsoft's vocal, libertarian defenders, University of
Chicago law professor Richard Epstein, recognized that the minimum
plausible remedy after the DC Circuit decision would involve
``undoing a few product-design decisions.'' Richard
Epstein, Phew/, Wall. St. J., June 29, 2001, at A10. But DOJ did not
even insist on that. Instead, the RPFJ's omission of any relief for
this violation gives Microsoft something the DC Circuit twice
refused: a victory on the hardest-fought legal issue in the case.
Given the central importance of middleware to the theory of the
case, failing to address the principal means by which Microsoft
bundled browser middleware to Windows would be plainly inadequate.
2. The Failure To Limit Commingling Is Critical Because Ubiquity
Trumps Technology In Platform Software Markets
The failure to prohibit commingling of middleware deprives the
RPFJ of any significant procompetitive effect on the emergence and
adoption of competing platform software. The critical competitive
phenomenon in this case was not middleware in itself, but rather the
potential, and deeply feared, development of particular middleware
into a competing platform for software applications. Middleware can
develop into a competing applications platform by attracting
software developers to use its Application Programming Interfaces
(APIs) in preference to, or at least in addition, to the APIs
offered by Microsoft in Windows. Developers will write their
applications to invoke particular APIs--;i.e., to run on a
particular platform--;based on how widely available the APIs
will be.
Although potential platform software not distributed by
Microsoft must attract users in order to achieve the widespread
availability of their APIs that will attract developers, it is the
expected presence of the APIs that matters, not how much consumers
directly use the application exposing the APIs. Non-Microsoft
middleware depends on the availability of the application in order
to gain the critical mass of users that, in turn, may attract
developers.
The availability and prominence of the application's icon may be
significant for the purpose of attracting end-users. In platform
competition, however, the availability of the application is only a
means to the desired end. Developers don't write to icons; they
write to APIs. The inclusion of Microsoft Middleware functionality
in every copy of Windows is determinative, regardless of how or
whether the icons are featured, and regardless even of the presence
of the user interface or shell?\11\ If developers know that
the plumbing for a Microsoft version of middleware will be on every
PC because it is commingled with Windows, then developers will write
to the Microsoft version's APIs. Because the RPFJ permits Microsoft
to include the APIs accompanying the software functionality that
mimics middleware that is a potential platform threat, Microsoft
will be able to defeat any middleware threat in exactly the same way
it destroyed the threat of Netscape and Java on the PC desktop. See
Stiglitz/Furman Dec. 36.
---------------------------------------------------------------------------
\11\The user interface is especially insignificant
because the browser window already can serve as the user interface
for many products, and could easily be adapted to serve as the user
interface for many more.
---------------------------------------------------------------------------
Under the RPFJ, developers will continue to assume that Windows
Media Player, for example, is present on every computer. This will
be true regardless of whether ``end user access'' is
removed, because the remedy does
[[Page 28371]]
not require Microsoft to remove the middleware. The result is that
software developers will write applications to, for example, the
Windows Media Player APIs, rather than to the APIs supplied by rival
platforms. That is an advantage that no competitor can overcome.
It is no answer to say that OEMs can offer rival middleware even
if the code for a Microsoft version of the same product is
commingled with Windows, so that the Microsoft version of middleware
appears on every desktop PC. If Microsoft's version of a product is
everywhere, few OEMs will go to the effort of providing another
product that does largely the same thing. The district court and
court of appeals alike recognized that OEMs faced strong
disincentives to install two competing products with similar
middleware functionality, disincentives arising largely from support
costs and disk space. See 84 F.Supp.2d at 49-;50, 60-;61
( 159, 210); 253 F.3d at 61. If the Microsoft Middleware
is there, the OEM will have to support it, even if--;perhaps
especially if--;the end-user does not know that it is there.
Thus, rival middleware cannot undermine Microsoft's monopoly
unless (1) the rival middleware is ubiquitous, or (2) the Microsoft
version is not ubiquitous. If developers do not feel compelled to
write to the rival middleware as well as the Microsoft middleware,
the rival middleware will not undermine the monopoly. And if
Microsoft's version of particular middleware can be ubiquitous by
virtue of its inclusion in the monopoly operating system, as the
RPFJ plainly allows, there is virtually no likelihood that rival
middleware will ever achieve the ubiquity needed to present a
platform challenge. See Stiglitz/Furman Dec. 36-;37; see
generally Litan/Noll/Nordhaus Comment 44-;47.
3. The RPFJ Retreats From The 1995 Consent Decree
Microsoft uses Windows as an instant, universal distribution
channel for Microsoft software that represents a response to a
threat to the dominance of Windows as a program development
platform. As a consequence, ``Windows'' has become
whatever bundle Microsoft needs it to be to forestall competition.
The 1995 Consent Decree contained a prohibition on contractual tying
of applications to the operating system in order to prevent
anticipated conduct that would maintain the operating systems
monopoly by anticompetitive means. That the earlier provision failed
in its purpose suggests that the provision should be broader, not
that it should be abandoned, particularly since this case began as a
way to stop conduct that had escaped summary condemnation under the
earlier decree. It would be senseless as a matter of enforcement
policy to bring and win an action prompted by an evasion (if not a
violation) of a monopolization consent decree, win the case on the
monopolization theory most closely related to the object of the
earlier consent decree, and then reward the violator by removing the
relevant restriction upon the expiration of the earlier decree
rather than broadening it as proposed here.
Microsoft's monopoly gives it the power to make all systems
integration and software bundle decisions, a power that Microsoft is
exercising more broadly, as the breadth of the Windows XP bundles
clearly illustrates. The RPFJ should not step back from the 1995
Consent Decree.
4. The RPFJ Encourages Illegal Commingling By Placing The
Critical Definition of Windows Under Microsoft's Exclusive Control
But the RPFJ does step back from the 1995 Decree, and makes
matters still worse. Not only does the RPFJ completely fail to
prevent future illegal commingling, but it effectively approves that
conduct by permitting Microsoft ``in its sole discretion''
to ``determine[]'' exactly which ``software code
comprises [sic] a Windows Operating System Product.'' RPFJ
VI(U). That provision permits Microsoft an unearned
advantage in repelling any future challenges to illegal commingling
of applications code with Windows. Were the Court to enter this
provision as part of its judgment, Microsoft could point to DOJ's
capitulation on this issue--;and the Court's approval--;as
extraordinarily persuasive evidence that its monopoly product was as
broad as it says it is, and that, despite the contrary holding of
the DC Circuit, any commingling of an application with the operating
system is per se legal.
The Court can and should disapprove provisions that appear to
endorse practices of apparent anticompetitive effect and dubious
legality. Thomson Corp., 949 F. Supp. at 927-;930 (refusing to
approve fee schedule for mandatory license for legally dubious
copyright). The Court should not approve this provision, which
defangs many of the other obligations in the RPFJ.
Rather than learning from the difficulties with the
``integration proviso'' in that Decree, DOJ has ceded the
issue to Microsoft, permitting Microsoft to decide for purposes of
the decree obligations where the OS stops and where middleware
begins. Much of the RPFJ rests on the relationship between the
Windows OS and middleware. But the RPFJ places Microsoft firmly in
control of every technical aspect of the proposed decree by
permitting Microsoft absolute control over the definition of
``Windows Operating System Product.'' That subjects many
of Microsoft's purported obligations to Microsoft's own discretion.
No term is more important in the RPFJ than ``Windows
Operating System Product,'' which appears fully 46 times in the
RPFJ: 26 times in the descriptions of substantive obligations, and
20 times in the definitions that circumscribe those obligations. The
definition of Application Programming Interfaces (APIs) is the
starkest example. ``Windows Operating System Product''
appears three times among the 41 words of the API definition. See
RPFJ VI(A.). Thus, Microsoft can determine ``in
its sole discretion'' what an API is, and thus what must be
disclosed.
One would think that DOJ would do everything possible to ensure
that a new decree did not contain an analogue to the
``integration proviso'' that nullified much of the anti-
tying provision of the 1995 decree. See generally Microsoft II, 147
F.3d 935. Instead, Section VI(U) ensures that few, if any, of the
technical provisions of the RPFJ will mean anything except what
Microsoft wants them to mean, and that none can be enforced without
lengthy litigation that will further shrink the tightly limited
duration of the proposed relief.
B. Empirical Evidence Shows That The Icon Flexibility Provisions
Will Not Be Used
Not only do the icon flexibility provisions address the wrong
problem, but the market already has tested their consequences. On
July 11, 2001, Microsoft announced that OEMs and end users would be
permitted to remove access to Microsoft's Internet Explorer browser,
just as RPFJ III(H)(1) permits. As of this writing, not
one OEM has availed itself of this new liberalized policy. Windows
XP is shipping with Internet Explorer on every single personal
computer shipped by every single OEM. This real-world experience
speaks volumes about the practical significance of this relief.
C. The Icon Flexibility Provisions Require--;And
Accomplish--;Little
1. The icon flexibility provisions do not permit OEMs to swap
out Microsoft Middleware Products and replace them with other
products. Rather, the OEMs at most can hide the Microsoft icon, but
need to be prepared to support the underlying Microsoft software
when another software application invokes it. That means that these
provisions do not address the added ``product testing and
support costs'' that discourage OEMs from including more than
one version of particular functionality. Microsoft III, 253 F.3d at
66.
This is a step backward from DOJ's settlement posture before
liability was established. At that time, DOJ insisted that OEMs be
allowed to alter or modify Windows, and that Microsoft provide OS
development tools for that purpose. See Draft 18,
4(1)(d), 4(g). The RPFJ provisions, by contrast,
only permit OEMs to display icons, shortcuts, and menu entries for
Non-Microsoft Middleware. The RPFJ does not require Microsoft to
permit OEMs to remove any Microsoft Middleware Products, although
even current Microsoft practice permits this. The RPFJ requires
Microsoft only to allow the removal of ``icons, shortcuts, or
menu entries.'' RPFJ III(H)(1)[first].
2. Section III(H)(2)[first] seems to permit OEMs and end-users
to choose default middleware for particular functions. Microsoft's
obligations are far less than they appear.
The provision applies only where a Microsoft Middleware Product
would launch into a top-level display window (rather than operating
within another interface) and would either display ``a// of the
user interface elements'' or the ``Trademark of the
Microsoft Middleware Product.'' RPFJ
III(H)(2)(i)-;(ii) (emphasis added). Thus, the
provision does not apply if Microsoft designs the slightest
variation on the interface elements that launch from within another
application, so long as the trademark also is not displayed in the
top-level window. These do not present serious programming
challenges. Microsoft's ability to preclude OEM installation of
desktop shortcuts that ``impair the functionality of the
[Windows]
[[Page 28372]]
user interface'' (RPFJ III(C)(2)) provides
another, largely unreviewable set of opportunities to impede the use
of innovative shortcuts to innovative software. Microsoft asserted
similar reasons to defend some of the conduct condemned by the DC
Circuit. See Microsoft III, 253 F.3d at 63-;64. The DC Circuit
rejected Microsoft's approach, but the RPFJ adopts it.
3. As explained above, the code beneath the surface is
critically important to the success of middleware in undermining the
applications barrier to entry in the OS market. The RPFJ contains
exceptions that ensure that, however icons may be displayed on the
surface, Microsoft Middleware will be firmly (and unchallengeably)
established in the plumbing of each PC.
Sections III(H)(1)-;(2)[second], undo what might be left of
the obligations earlier in Section III(H). Section III(H)(1)[second]
permits Microsoft to ensure that Microsoft Middleware Products are
invoked whenever an end-user is prompted to use Microsoft Passport
or the group of Microsoft web services now known as Hailstorm.
Section III(H)(2)[second] ensures that Microsoft need only program
in functions that invoke Active X or other similar Microsoft-
proprietary implementations of common functions, in order to ensure
that Microsoft Middleware Products constantly appear regardless of
an end-user's stated preferences. And none of the provisions in
Section III(H) would apply unless the corresponding Microsoft
Middleware Products existed seven months before the last beta
version of a new Windows release. As with other provisions,
Microsoft would be constrained by these requirements only if it paid
no attention to them when it decided when and how to release its
products.
D. The 14-Day Sweep Provision Effectively Nullifies RPFJ
III(H)
Even if these provisions otherwise might mean something, the
RPFJ ensures that they will be competitively meaningless by
permitting Microsoft to nag users to give permission for Microsoft
to override any array of non-Microsoft icons and menu entries 14
days after the initial boot-up of a PC. See RPFJ
III(H)(3). Thus, Microsoft only needs to prompt users
with a dialog box inviting them to ``optimize the Windows user
interface'' every time they boot up, or when they download the
inevitable bug fixes and security patches among Windows updates, in
order to undo any OEM's or end-user's customization of icons.
Microsoft apparently provided DOJ with the name for this feature,
which DOJ uses in the CIS: ``Clean Desktop Wizard.'' CIS
48, 66 Fed. Reg. 59,471. What user would not agree to have a cleaner
desktop? No ISV is likely to pay an OEM a fee sufficient to cover
the trouble of rearranging icons, and supporting additional
software, for the privilege of having non-Microsoft software icons
displayed advantageously for as little as two weeks.
The CIS suggests that the ability of Microsoft to sweep away
icons of competing middleware and other products 14 days after a
computer first boots up (RPFJ III(H)(3)) applies only
to ``unused icons'' (CIS 48, 66 Fed. Reg. 59,471), but the
decree terms contain no such limitation. Once its ``Clean
Desktop Wizard'' (id.) secures a click of user consent,
Microsoft can hide any icons that offend it. Indeed, there is
nothing in the RPFJ that would stop Microsoft from including similar
``wizards'' that would prompt users to reset middleware
defaults, or even to remove Non-Microsoft Middleware,'' in
order to ``optimize performance'' or to ``take full
advantage of powerful new Windows features.''
E. By Placing The Burden To Restore Competition On OEMs, The PFJ
Leads To No Remedy At All For Much Of The Misconduct At Issue
One of the most misguided elements of the RPFJ is its allocation
to OEMs, ISVs and end-users of the primary responsibility for
injecting competition into the OS market. The icon and default
flexibility provisions of the RPFJ allocate to the OEMs almost all
of the financial risk and responsibility for remediating Microsoft's
antitrust violation, while the monopolist has no obligations except
to allow others to make changes to hide (or add to) Microsoft's
middleware. That approach ignores the fact that OEMs are motivated
by their own fiduciary and economic considerations, not by the drive
to remedy a monopolization offense. OEMs are risk-averse, as they
operate in a low-margin, highly competitive environment in what has
become a commodity-product market. In that environment OEMs are
highly dependent on the good graces of Microsoft, not only for
favorable pricing on Microsoft's monopoly software products []
Office as well as Windows [] but also for timely technical
assistance, and access to technical information.
The Stiglitz/Furman Declaration confirms (at 32-;34) that
the economics of the OEM industry--;a commodity industry captive
to a bottleneck monopolist--;discourage expenditures of this
kind. It is bizarre and counterproductive to place the burden to
restore competition on the innocent, low-margin OEMs rather than the
monopolist. The ``hapless makers of PCs'' still
``aren't in any position to defy Microsoft,'' Walter
Mossberg, For Microsoft, 2001 Was A Good Year, But At
Consumers'' Expense, Wall. St. J., Dec. 27, 2001, at B1, any
more than they were when the illegal conduct in this case first
occurred. See, e.g., Findings, 84 F. Supp.2d at 62 (14)
(Hewlett-Packard observation to Microsoft that ``[I]f we had a
choice of another supplier, * * * I assure you [that you] would not
be our supplier of choice''). But if OEMs choose not to
exercise their new ``flexibility'' under the middleware
provision %62 a choice that seems likely in view of the demonstrated
lack of a response to Microsoft's offer of July 11, 2001 [5 the
government is left with no antitrust remedy for much of its
case.\12\
---------------------------------------------------------------------------
\12\Similarly, the RPFJ places no limits on Microsoft's
conduct toward one of its largest current groups of
licensees--;direct corporate licensors of bulk Windows licenses.
The corporate market has always been Microsoft's point of leverage,
and those buyers now often buy direct. Microsoft has made clear its
intention to make Windows and other software a renewable
``service.'' Microsoft can undo all of the provisions
applying to OEMs upon the first license renewal with an end-user.
---------------------------------------------------------------------------
Nor can ISVs be expected to pay OEMs to take advantage of the
limited flexibility provided by RPFJ III(C) and
III(H). The RPFJ gives ISVs very slight incentives to subsidize OEM
alterations of Microsoft's preferred desktop display, since the ISVs
who sell middleware that competes against a Microsoft offering
cannot buy exclusivity on the desktop of any computer. Rather, at
best an ISV can obtain parity in the availability to developers of
its middleware's code. No matter what ISVs and OEMs do, Microsoft
Middleware will be ubiquitous. And ISVs could buy only 14 days of
advantageous icon display before a Microsoft ``Clean Desktop
Wizard'' (CIS 48, 66 Fed. Reg. 59,471) would begin prompting
users to undo the OEM's arrangement of icons and reinstate the
arrangement favored by Microsoft. No ISV would pay more than a
pittance for such a shallow and short-lived advantage on the
desktop.
F. The RPFJ Permits Microsoft To Control Consumers'' Access
To Innovation To Suit Its Monopolistic Aims
The RPFJ allows Microsoft to exercise full control over the pace
of innovation in middleware because Microsoft can ensure that
consumers are denied access--;or have only severely impeded
access--;to competitively threatening middleware products to
which Microsoft has no analogue. Section III(C)(3) allows Microsoft
to prohibit OEMs from configuring PCs to launch non-Microsoft
middleware from any point unless Microsoft already has a competing
product that launches from that point. Microsoft can prohibit OEMs
from configuring non-Microsoft middleware from launching
automatically at the end of the boot sequence or upon the opening or
closing of an Internet connection unless a Microsoft Middleware
Product with similar functionality would launch automatically. RPFJ
III(C)(3).
Even after this catch-up provision serves its delaying purpose,
Microsoft can control how competing middleware products reach and
serve consumers, so that products launch only in the way that best
suits Microsoft. This provision appears designed to protect
Microsoft from competition, and to give the monopolist a clear
imprimatur to control the pace of innovation. See Stiglitz/Furman
Dec. 28.
V. THE API AND COMMUNICATIONS PROTOCOL DISCLOSURE PROVISIONS ARE
INEFFECTIVE
A. The API Provisions Require Little, If Anything, Beyond
Current Disclosure Practices In Microsoft's Self-Interest
The API and Communications Protocol disclosure provisions
(III(D)-;(E)) contain little in the way of
hard, fast, enforceable obligations, and do not appear to add
anything significant to Microsoft's current disclosure practices. As
the CIS recognizes: Through its MSDN [Microsoft Developer's Network]
service, Microsoft presently makes widely available on the Internet
an extensive and detailed catalog of technical information that
includes, among other things, information about most Windows APIs
for use by developers to create various Windows applications. MSDN
access is presently broadly available to developers and other
interested third parties.
CIS 34, 66 Fed. Reg. 59,468.
Microsoft already discloses literally thousands of APIs to
software developers
[[Page 28373]]
through MSDN for the good reason that it is in Microsoft's self-
interest to promote the Microsoft Windows platform to software
developers. The extent of information disclosure required by the
RPFJ must be understood in the context of Microsoft's current
information disclosure practices. A ``requirement'' that
Microsoft disclose APIs for the most part simply
``requires'' that Microsoft do what it does voluntarily.
Microsoft has a business incentive not only to disseminate
Windows APIs but to assist ISVs in understanding and implementing
Windows APIs in their products. Microsoft and other platform
software vendors compete to attract developers by disclosing
technical information, creating easy-to-use development tools, and
``evangelizing'' their development platforms. Attracting
developers helps Microsoft perpetuate the substantial network
effects that produce the applications barrier to entry protecting
the Windows monopoly. Because the strength of the Windows monopoly
and the power of the applications barrier to entry are directly
related to the number of developers writing applications for
Windows, it is in Microsoft's interest to provide a robust
information disclosure program.
By widely disclosing APIs, Microsoft ensures that applications
will continue to be written for its platform software rather than
for rival platforms. Properly understood, Section III(D) does not
actually require Microsoft to provide any new disclosure of APIs and
technical information to promote interoperability; Microsoft already
engages in these disclosures. Rather, the incremental effect of the
API disclosure provisions of the RPFJ is at most to prevent
Microsoft from selectively withholding certain APIs from certain
vendors. As explained below, however, the disclosure
``requirements'' in the RPFJ are too insubstantial and too
easily manipulated to accomplish even that limited goal.
B. The RPFJ Does Not Require Disclosure of Windows APIs, But
Rather Lets Microsoft Determine The Scope of Disclosure Through The
Design and Labeling of Its Operating System And Middleware
To begin with, the API disclosure requirements aim at the wrong
thing. The RPFJ defines APIs as the interfaces used by Microsoft
Middleware to invoke resources from a Windows Operating System
Product. RPFJ VI(A). But innovative rival software
vendors do not need APIs between Microsoft Middleware and Windows.
The really threatening innovators are threatening precisely because
their products perform functions that Microsoft's do not. In those
cases, by definition, there will not be any fully analogous
Microsoft middleware--;just as Microsoft did not have an
Internet browser when Netscape Navigator first appeared. Those
developers need full access to Windows APIs--;APIs for all
functionalities enabled by the Windows platform, whether Microsoft
calls them ``internal'' calls within Windows or external
APIs that may be distributed to ISVs--;not to the limited subset
used by a Microsoft version of similar middleware.
That is what Netscape needed in 1995; there was no Internet
Explorer to speak of at that time, and certainly Microsoft's
rudimentary browser did not perform anywhere near the range of
functions performed by Netscape Navigator. See Findings, 84 F.
Supp.2d at 31-;32 (82-;84), 33-;34
(91-;92). The RPFJ provisions would not have
helped Netscape then. See Letter from James L. Barksdale, former CEO
of Netscape, to Chmn. Leahy & Sen. Hatch, Senate Comm. on the
Judiciary, Attachment, Question 1 (Dec. 11, 2001). 13 And they will
not help any software developer whose products exceed the
functionality of existing Microsoft middleware. The API disclosure
provisions in the RPFJ thus ensure that Microsoft can control the
pace of middleware innovation, providing another level of assurance
that non-Microsoft products will not gain the type of head start
that might result in ubiquity before a similar Microsoft product can
be included
Mr. Barksdale's letter in lieu of hearing testimony is available
at http://java.sun.com/features/2002.01.barksdale-letter.html, and
the attachment is available at http://java.sun.com/features/
2002.01.barksdale-attach.htm in the bundle of products sold with
every Windows operating system.
That limitation on API disclosure is severe enough. But it is
just a beginning. The disclosure obligation is further limited by
the definition of APIs at RPFJ VI(A):
``Application Programming Interfaces (APIs)'' means the
interfaces, including any associated callback interfaces, that
Microsoft Middleware running on a Windows Operating System Product
uses to call upon that Windows Operating System Product in order to
obtain any services from that Windows Operating System Product.
Setting aside the circularity, the malleability of the two
principal defined terms renders this definition (and the
corresponding obligations) a practical nullity. The API definition
depends on the relationship between two ``products,'' each
of which is defined solely by Microsoft. As noted above, Microsoft
has ``sole discretion'' to identify software code as part
of a ``Windows Operating System Product.'' RPFJ
VI(U). Many APIs can disappear from view simply as a
result of Microsoft's unreviewable decision to relabel certain
interfaces as internal to Windows. If Microsoft says that an
operation takes place entirely within Windows, rather than requiring
the interaction of a middleware and Windows, then there is no API to
disclose.\14\
---------------------------------------------------------------------------
\14\Moreover, the term ``interfaces'' is not
defined in the RPFJ. The CIS explains that
```[i]nterfaces'' includes, broadly, any interface,
protocol or other method of information exchange between Microsoft
Middleware and a Windows Operating System Product.'' CIS
33-;34, 66 Fed. Reg. 59,468. But that definition would not be
part of the judgment.
---------------------------------------------------------------------------
C. The Definition of ``Microsoft Middleware'' Gives
Microsoft Further Leeway to Limit Its Disclosure Obligation
The only APIs that need be disclosed are those used by
``Microsoft Middleware.'' But ``Microsoft
Middleware,'' too, is defined in a way that gives Microsoft
fight control over the scope of its own obligations. Remarkably,
Assistant Attorney General James testified that this definition
would have been difficult for DOJ to achieve in a litigated
proceeding. Statement of Charles James to Senate Judiciary Committee
8 (Dec. 12, 2001). But it is difficult to imagine what Microsoft
would have contested. Just as in the dispute whether Internet
Explorer is part of Windows, Microsoft can simply relabel software
as part of one product rather than another. The label does not
affect the commands and operations in the software.
1. The RPFJ Requires Microsoft To Disclose Only The APIs Used By
The ``User Interface'' Or Shell Of Microsoft Middleware
The APIs that must be disclosed are those that ``Microsoft
Middleware * * * uses to call upon [a] Windows Operating System
Product.'' RPFJ VI(A); see id.
III(D). But Microsoft determines how much code
performing a Microsoft Middleware function is part of the
Middleware, and how much is part of the Windows Operating System
Product, since the latter definition is within Microsoft's
``sole discretion.'' Id. VI(U). The only code
in Microsoft Middleware that Microsoft must consider separate for
the purposes of API disclosure is the user interface, or shell, of
the Middleware--;or, rather, ``most'' of the shell.
Id. VI(J)(4). The only limit is that ``Microsoft
Middleware'' must ``[i]nclude at least the software code
that controls most or all of the user interface elements of that
Microsoft Middleware.'' Id. Thus, the terms of the RPFJ permit
Microsoft to provide only the APIs that go between 51% of the user
interface elements of Microsoft Middleware and the rest of the
Windows bundle of products. None of the APIs used by the
Middleware's functionality--;the APIs that permit the Middleware
perform its functions while running on Windows--;need be
disclosed, so long as the shell APIs are disclosed. This definition
appears to be designed to have nothing to do with developer
preferences, or with the applications barrier to entry.
2. The RPFJ Requires Microsoft To Disclose APIs Only For
``Microsoft Middleware'' That Is Distributed Separately
From Windows, Yet Is Distributed To Update Windows
To come within the disclosure obligation, Microsoft Middleware
must be ``distributed separately from a Windows Operating
System Product.'' That restriction alone is enough to take
Windows Media Player 8 outside the definition, as that product is
available only as part of the Windows XP bundle. But not all
separate distributions prompt the API obligations; Microsoft must
characterize the distribution as one that ``update[s] th[e]
Windows Operating System Product.'' See RPFJ
VI(J)(1). Thus, the scope of the obligation depends
entirely on the labeling of the product, which Microsoft can easily
manipulate.
3. The Limitation Of Microsoft Middleware To
``Trademarked'' Products Further Eviscerates The API
Disclosure Provision
But that is not all. At least equally significant is the
restriction of the Microsoft Middleware definition, and thus the API
disclosure obligation, to Middleware that is
``Trademarked.'' RPFJ VI(J)(2). The
definition of ``Trademarked'' allows Microsoft to exclude
current middleware from the API disclosure obligation, and to
prevent future middleware from becoming subject to the API
disclosure obligation,
[[Page 28374]]
simply by manipulating its use of trademarks.
a. Microsoft Easily Can Ensure That Middleware Is Not
``Trademarked'' By Using A Generic Or Descriptive Name
Combined With Microsoft(r) or Windows(r)
The definition of ``Trademarked'' does not include
``[a]ny product distributed under * * * a name compris[ing] the
Microsoft(r) or Windows(r) trademarks together with descriptive or
generic terms.'' Id. VI(T). That is how Microsoft
has chosen to name some of its newest and most important products:
the combination of a monopoly brand with a simple descriptive mark
that helps identify an entire software function with the Microsoft
implementation of it. Windows(r) Messenger instant messaging
software is one example.
Moreover, by the terms of the RPFJ Microsoft disclaims any
rights in the use of such combinations of the Microsoft(r) or
Windows(r) marks with generic or descriptive terms, and abandons any
rights that may be acquired in the future. RPFJ VI(T).
These provisions suggest that Microsoft can change the scope of the
definition of Middleware, and thus of the API disclosure obligation,
by abandoning some marks it has registered as combinations of
Microsoft(r) or Windows(r) with generic or descriptive
terms--;if the RPFJ does not accomplish that in itself. Windows
Media Player is an example. Although Microsoft has registered the
combination of Windows(r) and the generic term ``Media''
as Windows Media(r), at bottom the name Windows Media Player is a
combination of the Windows(r) mark with the generic term
``media player.''
Indeed, Microsoft could plausibly argue that the Windows
Media(r) mark does not come within the ``Trademarked''
definition as it is, since even that mark consists of no more than
the Windows(r) mark in combination with the generic term
``media.'' 15 RPFJ VI(T) may therefore embody
Microsoft's ``disclaim[er of] any trademark rights in such
descriptive or generic terms apart from the Microsoft(r) or
Windows(r) trademarks.'' But even if Section VI(T) does not go
so far, Microsoft could easily get Windows Media(r) Player outside
of the ``Trademarked'' definition--;and thus outside
the scope of the In this discussion we set aside the non-trivial
question whether ``Windows'' itself is a generic, or at
best descriptive, mark for the type of ``windowing''
graphical user interfaces invented at the Xerox Palo Alto Research
Center in the 1970s, popularized by the Apple Lisa and Macintosh in
the 1980s, and since used by Microsoft and many other software
vendors. disclosure obligations that apply only to ``Microsoft
Middleware''--;simply by abandoning the registration mark
and moving the registration symbol to the left. Thus, Microsoft can
transform ``Windows Media(r) Player,'' which might be
subject to API disclosure requirements, into ``Windows(r) Media
Player,'' which clearly is exempt.
b. The ``Microsoft Middleware'' Definition Governing
Disclosure Obligations Is Far Narrower Than The ``Microsoft
Middleware Product'' Definition Governing OEM Flexibility
That this highly restrictive definition is no accident is clear
from comparison with the ``Microsoft Middleware Product''
definition which governs the icon-display obligations. To provisions
paralleling the ``Microsoft Middleware'' definition, the
``Microsoft Middleware Product'' definition adds several
named current products, including ``Internet Explorer,
Microsoft's Java Virtual Machine, Windows Media Player, Windows
Messenger, Outlook Express and their successors,'' RPFJ
VI(K)(1), although only to the extent that Microsoft
``in its sole discretion'' (id. VI(U))
decides that those products are ``in a Windows Operating System
Product.'' Id. VI(K)(1). Thus, Microsoft's icon
display/removal obligations for those named products would not
change merely because of a strategic product renaming or abandonment
of a trademark that combines the Microsoft(r) or Windows(r) name
with generic or descriptive terms. But none of those current
products is named in the ``Microsoft Middleware''
definition that governs the disclosure obligations. That enables
Microsoft to manipulate whether those products, although surely
middleware, also satisfy the four subparts of RPFJ
VI(J).
c. The CIS Broadens The ``Trademarked'' Definition
Beyond Its Terms
The CIS overstates the breadth of the ``Trademarked''
definition, contending that it ``covers products distributed *
* * under distinctive names or logos other than by the Microsoft(r)
or Windows(r) names by themselves.'' CIS 22, 66 Fed. Reg.
59,465. The CIS further claims that the exception for products known
by combinations of generic terms with Microsoft(r) or Windows(r)
does not cover marks that ``are presented as a part of a
distinctive logo or another stylized presentation because the mark
itself would not be either generic or descriptive.'' CIS 23, 66
Fed. Reg. 59,465 (emphasis added). To the contrary, the terms of the
RPFJ definition of ``Trademarked'' focus entirely on
``names,'' not ``logos'' or ``marks''
as a whole. RPFJ VI(T). The distinction is striking:
the word ``name'' appears five times in the definition,
and ``descriptive or generic terms'' appears three times.
Neither ``logo'' nor ``mark'' appears at all.
Microsoft clearly appreciates the distinction. Although
Microsoft apparently has not yet formally abandoned the mark
``Internet Explorer'' (U.S. Trademark Reg. No. 2277122),
it does not assert that mark when it lists its trademarks as a
warning to the public. See http://www.microsoft.com/misc/info/
cpyright.htm. Microsoft does list its trademark for the Microsoft
Internet Explorer logo, however. Id.; see U.S. Trademark Reg. No.
2470273.
d. Microsoft Can Easily Manipulate Which Middleware Releases Are
``New Major Versions''
Indeed, even a ``Microsoft Middleware Product''
satisfying that four-part test may not be ``Microsoft
Middleware'' subject to the disclosure obligation unless it is
a ``new major version'' of the product, that is, if the
release is ``identified by a whole number or by a number with
just a single digit to the right of the decimal point.'' RPFJ
VI(J). That has two implications. First, Microsoft can
simply adopt a different method of naming new releases. Second, even
under current practice a version with two digits to the right of the
decimal point may fix significant errors, so that disclosure only of
the prior version of the APIs might leave developers without the
ability to invoke some needed functionality with the disclosed APIs.
D. The Disclosure Provisions--;Particularly Those Concerning
``Communications Protocols''--;Depend On An Undefined
And Thus Unenforceable Concept of ``Interoperability''
Both the API and Communications Protocol disclosure provisions
define the scope of the data to be disclosed as that necessary to
permit non-Microsoft products to ``interoperate'' with the
Windows client OS and to ``interoperate natively'' with
Microsoft server operating system products. See RPFJ
III(D), (E). The disclosure obligations are limited to
``the sole purpose of interoperating with a Windows Operating
System Product.'' Id.
The obligations depend on the meaning of
``interoperate,'' but the RPFJ never defines that term,
and there is no non-discrimination provision attached to this
obligation. That is critical because interoperability is not
something that can be achieved half way. Either two software
products interoperate for all functions that they must perform
together, or they do not. Any impediment in any aspect of the
interoperation nullifies the interoperability. The CIS seems to
equate ``interoperate'' with ``fully take advantage
of,'' see CIS 36, 66 Fed. Reg. 59,468, but there is no such
language in the RPFJ itself.
The Communications Protocol disclosure provision (RPFJ
III(E))outlines a seeming ``obligation'' that
is entirely undefined. Section III(E) seems to require disclosure of
Communications Protocols on Windows clients that are ``used to
interoperate natively * * * with a Microsoft server operating system
product.'' But just as ``interoperate'' is not
defined, neither does the RPFJ define ``Microsoft server
operating system product.''
One of the most important aspects of the Windows 2000 Server
product bundle is Microsoft's web server, IIS. In the absence of a
definition of ``Microsoft server operating system
product,'' however, it is unclear whether the disclosure
obligation encompasses protocols used to interoperate with this and
other aspects of the current server product. Cf. RPFJ
VI(U) (defining ``Windows Operating System
Product'' as all software code ``distributed commercially
* * * as Windows 2000 Professional'' and other named products,
and ``Personal Computer versions'' of their successors).
Again, the CIS attempts to provide assurances that go beyond the
terms of the proposed judgment. The CIS states (at 37, 66 Fed. Reg.
59469):
The term ``server operating system product'' includes,
but is not limited to, the entire Windows 2000 Server product
families and any successors. All software code that is identified as
being incorporated within a Microsoft server operating system and/or
is distributed with the server operating system (whether or not its
installation is optional or is subject to supplemental license
agreements) is encompassed by the term. For example, a number of
server software
[[Page 28375]]
products and functionality, including Internet Information Services
(a ``web server'') and Active Directory (a
``directory server''), are included in the commercial
distribution of most versions of Windows 2000 Server and fall within
the ambit of ``server operating system product.''
That definition would be appropriate. But no corresponding
language--;no enforceable definition--;appears in the RPFJ.
E. The Narrow Scope Of The Disclosure Provisions Contrasts
Sharply With The Broader Definitions In DOJ's Earlier Remedy
Proposals
Before liability had been confirmed on appeal, DOJ took a far
broader view of what should be disclosed. The interim remedies in
the vacated judgment required disclosure of APIs, Communications
Interfaces, and ``technical information'' needed to enable
competing products ``to interoperate effectively with Microsoft
Platform Software.'' 97 F. Supp.2d at 67 (3(b)). That
disclosure requirement was backed up by a requirement, absent from
the RPFJ, that Microsoft create a secure facility so that developers
could work with Windows source code to ensure that their
applications worked properly on the Microsoft platform, gee id.
The definition of ``technical information,'' moreover,
helped ensure that disclosure would be complete and not subject to
many different methods of manipulative narrowing. The
``technical information'' definition encompassed the
following items: 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.
97 F. Supp.2d at 73 (7(dd)).
Indeed, DOJ's position was stronger even before liability had
been imposed at all.
Draft 18 from the Posner mediation imposed a disclosure
obligation using this definition Of ``technical
information'':
all information, regarding the identification and means of using
APIs (or communications interfaces), that competent software
developers require to make their products running on a personal
computer, server, or other device interoperate satisfactorily with
Windows platform software running on a personal computer. Technical
information includes reference implementa- tions, communications
protocols, file formats, data formats, data structure definitions
and layouts, error codes, memory allocation and deallocation
conversions, threading and synchronization conventions, algorithms
for data translation or reformatting (including compression/
decompression algorithms and encryption/decryption algorithms),
registry settings, and field contents. The RPFJ, by contrast,
contains no analogue to these precise and inclusive definitions.
Instead, the RPFJ relies solely on the circular (and completely
manipulable) definition of API (RPFJ VI(A)), a
similarly narrow definition of ``Communications Protocol''
(id. VI(B)), and a definition of
``Documentation'' that is wholly dependent on the API
definition (id. VI(E)).
F. The ``Security'' Exceptions in Section III(J)
Permit Microsoft To Avoid Its Disclosure Obligations
RPFJ III(J) provides Microsoft with two additional
lines of defense in the event that any competitively sensitive APIs
nonetheless fall within the malleable definition of API. Section
III(J)(1) severely undercuts the disclosure requirements to the
extent they apply in the modem world where security protocols are
critical to any communication between networked computers,
particularly over the Internet. And Section III(J)(2) provides
Microsoft with seemingly unfettered discretion to decide who is
worthy to receive technical information necessary to make middleware
function on the Internet.
Microsoft can plausibly rely on Section III(J) to decline to
comply with disclosure requests based on concerns with
authentication and security that it will be able to assert with
respect to any program that involves communication between a PC and
a server on the Internet (or even within many private networks).
Authentication, security, and similar protection mechanisms are and
will continue to be integral parts of the functioning of those
products. See, e.g., Comment, William A. Hodkowski, The Future of
Internet Security: How New Technologies Will Shape the Internet and
Affect the Law, 13 SANTA CLARA COMPUTER & HIGH TECH. L.J. 217
(1997). Indeed, security and rights-protection are particularly
critical to Internet-based economic activity, which encompasses much
of the computing on the Internet. As a consequence, the security
mechanisms are critically important to any Internet-based middleware
threat to the Windows OS monopoly.
For example, digital rights management (``DRM'') has
become a principal part of Windows Media Player. Allowing Microsoft
to withhold data needed to permit rivals to interoperate with the
DRM specifications in Windows Media Player--;specifications that
Microsoft is making universal by including Windows Media Player on
every PC--; may well end effective competition for media players
within the next upgrade cycle for Windows. Similarly, any distant
remaining possibility of Internet browser (or even e-mail client)
competition should be squelched by the RPFJ's approval for Microsoft
to withhold parts of encryption-related protocols (again, as
distinct from the customer-specific keys that make use of those
protocols). For another example, Secure Socket Layer (SSL) is an
open standard that has been critical to the open development of a
relatively secure Internet. As Microsoft implements a proprietary
version of SSL--;one that others will have to follow given the
ubiquity of the Microsoft browser as a result of the misconduct at
issue in this case--;it will be able to conceal critical layers
of that altered protocol from rivals, essentially ending the
possibility of competition for client software for Internet
computing. And by giving Microsoft a basis to conceal authentication
protocols (not merely data), the RPFJ frees Microsoft Passport from
scrutiny and permits Microsoft to bind a proprietary universal
password and identity utility to its monopoly operating system
without hope of interoperation.
By permitting Microsoft to withhold key parts of encryption,
digital rights management, authentication, and other security
protocols, the RPFJ effectively allocates Web-based computing to the
monopolist of the desktop. A decree could hardly try to place a
clearer stamp of approval on an expansion of the scope of an
illegally maintained monopoly.
1. The Exclusions for Security-Related APIs and Protocols in
RPFJ(J)(1) Permit Microsoft To Hobble Disclosures That Are Critical
in Internet Computing
It is no coincidence that Bill Gates has now emphasized the
centrality of security concerns in Microsoft's future software
offerings. See, e.g., John Markoff, Stung by Security Flaws,
Microsoft Makes Software Safety a Top Goal, N.Y. TIMES, Jan. 17,
2002, at C1. That is no more than an acknowledgment of market and
technical realities that have been widely known throughout the
industry for years as Internet computing has taken hold. That market
reality should have been sufficient to make clear that an indistinct
exception of the type in RPFJ III(J)(1) would allow
Microsoft to disclose ``crippled'' versions of APIs and
Communications Protocols. Microsoft's sudden dedication to security
leaves no doubt that it will inject security aspects into its
proprietary APIs and its proprietary, extended implementations of
Communication Protocols. Under the terms of Section III(J)(1),
Microsoft can easily argue that disclosure of those
aspects--;necessary for one machine to communicate with
another--;will compromise the security from any installation or
group of installations. See also Stiglitz/Furman Dec. 30.
The CIS maintains that Section III(J)(1) simply protects
Microsoft and its customers from disclosure of customer-specific
``keys, authorization tokens, or enforcement criteria,''
and states that the exception ``does not permit [Microsoft] to
withhold any capabilities that are inherent in the Kerberos and
Secure Audio Path features as they are implemented in a Windows
Operating System Product.'' CIS 52, 66 Fed. Reg. 59,472. But
that reading does not square with the text of the exemption. The
quoted examples are specifically presented ``without
limitation.'' RPFJ III(J)(1). The RPFJ language
easily permits Microsoft to contend that any release of the way its
proprietary security protocols work ``would compromise the
security of a particular installation.''
Most important, Section III(J)(1) clearly permits Microsoft to
withhold portions of APIs or Communications Protocols, but the
examples given of keys and authorization codes are not parts of APIs
or Communications Protocols. They may be part
[[Page 28376]]
of customer- specific Documentation, rather than the Documentation
used by customers, consultants, and developers to create or identify
and implement particular keys, tokens, or enforcement criteria.) The
APIs and Communications Protocols for security-related applications
are not customer-specific, nor does their disclosure compromise
security. To the contrary, the most powerful encryption and other
security-related software is openly disclosed, as is the Kerberos
standard, or even open source, as is the federal government's new
encryption standard. See, e.g., Watch your AES: A new encryption
standard is emerging, Red Herring (Dec. 1, 1999) (open source
government standard).
Unless RPFJ III(J)(1) refers to a null set,
however, Microsoft will have a basis to withhold some parts of
Communications Protocols and APIs. The CIS states that
Communications Protocols ``must be made available for third
parties to license at all layers of the communications stack,''
(CIS 36-;37, 66 Fed. Reg. 59,468 (emphasis added)) but the RPFJ
to which Microsoft agreed--;and which alone is potentially
enforceable--; says no such thing. To the contrary, Section
III(J)(1) explicitly relieves Microsoft from the obligation to
license some ``portions or layers of Communications
Protocols'' (and some ``[p]ortions of
APIs'')--;not just client-specific data. If part of a
Communications Protocol is withheld, not ``all layers of the
communications stack'' are ``available * * * to
license.'' And if part of a Communications Protocol is
unavailable, interoperation is impossible; at certain points, the
interaction between two computers will break down.
Limited withholding of APIs or Communications Protocols (rather
than merely withholding customer-specific data) will render
middleware non-functional, since software cannot interoperate with
other software partially. Carving off some aspects of
interoperability means that there is no interoperability, thwarting
the premise of the disclosure provisions altogether.
The CIS also describes other limits that do not exist in the
text of the RPFJ. The CIS claims that the RPFJ requires disclosure
of the Communications Protocols used for the Microsoft-proprietary
implementation of the Kerberos security standard a
``polluted'' Kerberos that is the strict analogue to the
``pollute[d]'' Java that figured prominently at trial. See
Microsoft III, 253 F.3d at 76-;77 (quoting 22 J.A. 14,514). But
Section III(J) explicitly relieves Microsoft of the obligation to
disclose ``portions'' of APIs or Communications Protocols
that would ``compromise the security of a particular
installation or group of installations of security software. That is
an open invitation to withhold some part of the Microsoft-
proprietary variation of Kerberos.
The type of customer-specific information that the CIS claims is
all that can be withheld could and should be described much more
accurately and specifically in the RPFJ, not as [p]ortions of APIs
or * * * portions or layers of Communications Protocols,'' but
rather as ``customer-specific or installation-specific data the
disclosure of which would compromise the security of a particular
installation or group of installations of anti-piracy, anti-virus,
software licensing, digital rights management, encryption or
authentication systems, including without limitation keys,
authorization tokens or enforcement criteria.'' But that is not
the approach the RPFJ takes. Rather, the RPFJ makes clear that
Microsoft is entitled to withhold, not merely customer- or
installation-specific data, but some ``portions'' of APIs
and some ``portions or layers'' of Communications
Protocols. All communication of substance between desktops (or other
client computers) and server computers over the Internet
increasingly involves layers of security protocols, anti-virus
routines, and the like. And one of Microsoft's principal current
efforts is to foist its own version of digital rights management
(DRM) upon providers of copyrighted content over the Internet.
When Microsoft asserts a right to withhold information, it will
be difficult indeed for the Technical Committee, DO J, or the Court
to exclude the possibility that particular ``portions or layers
of Communications Protocols,'' or ``[p]ortions'' of
the APIs that permit middleware programs to operate atop Microsoft
operating systems, in fact ``compromise the security of a
particular installation or group of installations.'' RPFJ
III(J)(1). Any such determination is likely to be time-
consuming, and related enforcement therefore would be slow. It
should be a simple matter for Microsoft to delay disclosures of this
type long enough to disadvantage competitors.
2. RPFJ III(J)(2) Permits Microsoft To Refuse Effective
Disclosure To A Range Of Potentially Effective Competitors
While RPFJ III(J)(1) allows Microsoft to refuse to
disclose portions of APIs, RPFJ III(J)(2) permits
Microsoft to withhold all of any ``API, Documentation, or
Communications Protocol'' having to do with ``anti-piracy
systems, anti-virus technologies, license enforcement mechanisms,
authentication/authorization security, or third party intellectual
property protection mechanisms of any Microsoft product.'' The
RPFJ allows Microsoft to select to whom it will disclose this
information by imposing several tests that may be based on standards
apparently committed to Microsoft's sole discretion as much as is
the definition of Windows Operating System Product.
Thug, RPFJ III(J)(2)(b) permits Microsoft to
evaluate whether a competitor has a ``reasonable business
need'' for the desired information. What Microsoft is likely to
consider a ``reasonable'' business need by a competitor
may be narrow indeed. As the DC Circuit observed, Microsoft viewed
its desire ``to preserve its'' monopoly ``power in
the operating system market'' as a procompetitive justification
for exclusionary conduct. Microsoft III, 253 F.3d at 71. No doubt
Microsoft will view direct or indirect efforts to undermine its
hammerlock on the OS market as unreasonable efforts to confuse
consumers or impair the ``Windows experience.''
Even bona fide attempts by a monopolist to objectively evaluate
a potential competitor's ``reasonable business need'' can
scarcely be expected to produce consistent or foreseeable results.
Rather, that amorphous standard is likely to produce a flood of
disputes--;each of which will delay the competitor's receipt of
technical information while Microsoft gains more time to respond (by
legal or illegal means) to the competitive threat. Moreover, the
``reasonable business need'' must be for a ``planned
or shipping product.'' If the product is already
``shipping,'' it may be too late for disclosure to be
helpful in the market. How fully ``planned'' a product
must be raises further questions that Microsoft will be able to
resolve to its own disadvantage.
In addition, Microsoft need not provide security-related APIs,
protocols, or documentation to any vendor that does not
``meet[] reasonable, objective standards established by
Microsoft for certifying the authenticity and viability of its
business.'' RPFJ III(J)(2)(c) (emphasis added).
That provides Microsoft with a basis for excluding almost all
nascent competitors except for those associated with established,
profitable companies. It would not be difficult to craft
``reasonable, objective standards'' for ``viability
of [a] business'' that would exclude any Internet-focused
startup, including Netscape in 1995. Indeed, the history of the
software industry both before and after the dot-com bubble shows
that very few software companies have had ``viable''
businesses. Certainly Section III(J)(2)(c) would give Microsoft at
least a debatable basis for withholding the APIs and Communications
Protocols needed to interoperate with Microsoft software over the
Internet from all open source ISVs--;who are more interested in
constantly improving the quality of software than in obtaining
licensing profits. Although open source software is widely
recognized as a major threat to Microsoft's monopoly power, the
business models even of the leading Linux providers might fail any
number of ``reasonable, objective standards'' for
``viability.'' Indeed, Microsoft's CEO Steve Ballmer
describes open source software as a ``cancer'' that
threatens the viability of any software business. See Mark Boslet,
Open Source.'' Microsoft Takes Heat, INDUSTRY STANDARD, July
30, 2001; Dave Newbart, Microsoft CEO Takes Launch Break with the
Sun-Times, CHI. SUN-TIMES, June 1, 2001, at 57. For that matter, it
is not entirely unreasonable to regard head-to-head competition with
Microsoft in platform software as a less than viable business plan;
certainly most venture capitalist and other investors hold that
view. It would not be difficult for Microsoft to craft
``objective'' standards of business viability that would
exclude Corel and Novell, to name two examples. Microsoft should be
able to exclude many sources of potential cross-platform middleware
threats through RPFJ III(J)(2)(c) alone.
Yet RPFJ III(J)(2) contains yet another method for
screening competitors from access to technical information needed by
Internet-centric middleware applications. Any ISV that clears the
hurdles and receives the information nonetheless must submit its
implementation of the APIs, Documentation or Communications
Protocols for review by a Microsoft-approved third party (likely a
captive commercial ally) ``to test for and ensure verification
and compliance with
[[Page 28377]]
Microsoft specifications for use of the API or interface, which
specifications shall be related to proper operation and integrity of
the systems and mechanisms identified in this paragraph.'' RPFJ
III(J)(2)(d). ``[P]roper'' no doubt will mean
``the way Microsoft does it,'' making this provision into
yet another way in which Microsoft can control the pace of
innovation to ensure that the market has no or limited access to
products that improve upon Microsoft's offerings. This mechanism
means that vendors who tried to adapt APIs to function as bridges to
other platforms would have to give Microsoft the ammunition to
defeat that function--;if not simply disapprove it and await the
slow operation, if any, of the RPFJ enforcement mechanism.
The CIS suggests that there are strict limits on Microsoft's
discretionary ability to deny access to security-related aspects of
Communications Protocols and APIs, CIS 53, 66 Fed. Reg. 59,473, but
those limits are absent from the decree language. The CIS contends
that these exceptions ``are limited to the narrowest scope of
what is necessary and reasonable, and are focused on screening out
individuals or firms that * * * have a history of engaging in
unlawful conduct related to computer software * * *, do not have any
legitimate basis for needing the information, or are using the
information in a way that threatens the proper operation and
integrity of the systems and mechanisms to which they relate.''
Id. Setting aside the opportunity for Microsoft to argue, as it has
in other contexts, that the injection of competing software
``threatens the proper operation and integrity'' of its
products, see Microsoft III, 253 F.3d at 63-;64, the CIS simply
does not address the broadest basis for withholding APIs and
Communications Protocols under Section 111(1)(2): Microsoft's
ability to decide, based on criteria within its own discretion, that
an ISV is not ``authentic[]'' and ``viab[le].''
RPFJ III(J)(2). That provision could provide a basis
for excluding all but a handful of other software companies.
G. RPFJ III(I) Would Place A Judicial Imprimatur On
Microsoft's Use Of Technical Information As A Lever To Extract
Competitors'' Intellectual Property
The RPFJ would actually increase Microsoft's bargaining power by
explicitly placing a judicial imprimatur on demands by Microsoft
that recipients of APIs cross- license any intellectual property
developed using the APIs. Section III(I) of the RPFJ permits
Microsoft to use intellectual property licensing terms to impede
whatever competitive benefits otherwise might have arisen from its
disclosure obligations. Microsoft's licenses ``need be no
broader than is necessary to ensure'' the licensee's ability to
``exercise the options or alternatives expressly
provided'' by the RPFJ. RPFJ III(I)(2). A welter of litigation
over the breadth that is ``necessary''--;and the
collateral restrictions that are permissible--;is certain to
continue through the life of the decree.
Similarly, Microsoft should have no difficulty delaying the use
of any option for which it is entitled to charge a royalty, simply
by setting a ``reasonable'' royalty (RPFJ
III(I)(1)) beyond what any OEM could afford to pay in
that competitive, low-margin business. If OEMs have to pay Microsoft
to exercise any of their icon-shuffling options --; a state of
affairs clearly envisioned in RPFJ III(I)--;the
slim likelihood that any OEM will take advantage of those provisions
will be lessened still further. Microsoft need not permit transfers
or sublicenses of API rights, imposing yet another barrier to entry.
Id. III(I)(3). And Microsoft could ensure, through
licenses, that end-users could not make competitively significant
alterations to the Microsoft-approved package.
Most important, however, the RPFJ specifically permits Microsoft
to use its monopoly as a means to force access to others''
intellectual property. Microsoft can assert a right to license
``any intellectual property rights'' a competitor
``may have relating to the exercise of their options or
alternatives provided by'' the RPFJ. RPFJ
III(J)(5). Thus, to take advantage of a competitive
option, an ISV will need to license its product to Microsoft, and
hope that Microsoft does not use that license as a means to produce
a copycat program and bundle it into Windows. Many companies long
since departed the software industry after entering into what they
thought were limited exchanges of intellectual property with
Microsoft. 16
Although the CIS states that Microsoft could demand only any IP
rights it would need to comply with its own disclosure obligations
under the RPFJ, CIS 50-;51, 66 Fed. Reg. 59,472, the broad
``relating to'' language does not compel that narrow
reading, and may not support it at all. The vague limitations in
Section III(I)(5) are unlikely to reassure ISVs that Microsoft will
not use its license to analyze the ISV's IP rights well enough to
design around it and bundle a copycat program into Windows or
Office, as has happened many times before. This weapon should give
Microsoft additional ability to prevent industry participants from
taking advantage of the superficially appealing provisions of the
RPFJ.
VI. BUILT-IN DELAYS EXACERBATE THE DECREE'S UNJUSTIFIABLY BRIEF
DURATION
It is remarkable that the RPFJ would reward Microsoft for
litigating and losing broadly on liability with a consent decree
that is shorter than other such decrees, and may 16 See, e.g.,
Testimony of Mitchell Kertzman before the Sen. Jud. Comm., July 23,
1998 (detailing Sybase's difficulties in this regard); Statement of
Michael Jeffress before the Sen. Jud. Comm., July 23, 1998 (after
TVHost revealed its intellectual property to Microsoft in failed
negotiations to sell the company, Microsoft imitated the product).
be the shortest ever. DOJ antitrust consent decrees now routinely
last ten years. 17 Section V of the RPFJ provides for a term of only
five years, however, less time even than Microsoft has engaged in
the illegal conduct that was the subject of this litigation. The
decree plainly should be longer than the period between the
initiation of the misconduct and the imposition of relief, and at
least as long as the typical relief. 18 Microsoft has enjoyed the
benefits of its misconduct for at least seven years. The RPFJ not
only would allow Microsoft to retain those benefits, but would
subject Microsoft to its light and uncertain obligations for no more
than five years, and scarcely four and one-half years for the many
obligations that are delayed.
The RPFJ further abbreviates its already brief duration, and
undermines its already insubstantial requirements, by building in
long delays before Microsoft must comply with its limited duties.
Thus, Microsoft need not comply with the icon-related requirements
until November 2002, see RPFJ III(H)(1), although
Microsoft needed only two weeks after the DC Circuit decision to
offer OEMs roughly the same flexibility with icon display as the
RPFJ requires, and needed no more than three additional months to
implement that flexibility on Windows XP. See Microsoft Announces
Greater OEM Flexibility for Windows (Microsoft press release July
11, 2001). Similarly, Microsoft need not comply with its API
disclosure requirements or the OEM flexibility provisions until
November 2002, RPFJ III(D), (H), and need not
comply with the Communica-
As of 1998 it was the policy of the Antitrust Division that
consent decrees last for at least 10 years. See ANTITRUST DIVISION
MANUAL, at IV:54 (3d ed. Feb. 1998); see also V VON KALINOWSKI ET
AL., ANTITRUST LAWS AND TRADE REGULATION
96.01[2], at 96-;4; 96.02[1] at 96-;10
(2d ed. 2000).
If Microsoft actually and convincingly lost its monopoly before
the expiration of a decree of appropriate length, it could, of
course, move for modification or termination of the decree under
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).
Protocol disclosure requirement until August 2002. Id.
III(E). See also Stiglitz/Furman Dec. 30. These built-
in delays cut far into the unusually brief term of the decree.
The ``Timely Manner'' governing Microsoft's disclosure
obligations in RPFJ III(D)-(E)--;after the
initial delay--;permits Microsoft to withhold that disclosure
until a product version has been distributed to 150,000 beta
testers. See RPFJ VI(R). ``Beta testers'' in
undefined. Until recently, Microsoft, like other vendors,
distinguished between ``beta testers'' who agreed to
provide substantial feedback to the software manufacturer, and
``beta copies'' of a program that might be distributed
without such obligations or expectations. Few, if any, beta testing
programs involved 150,000 beta testers under that usage. A return to
the former terminology could postpone the ``Timely
Manner'' until commercial release. And in any event, it should
be a simple matter for Microsoft to delay distribution of any beta
version to 150,000 testers, however defined.
Here again, the contrast with the interim remedies of the
original decree is striking. The ``Timely Manner''
definition in that judgment required Microsoft to disclose
``APIs, Technical Information and Communications Interfaces * *
* at the earliest of the time that'' those items were
(1) disclosed to Microsoft's applications developers, (2) used
by Microsoft's own
[[Page 28378]]
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.
97 F. Supp.2d at 73-;74 (7(ff)) (emphasis
added). While the vacated judgment made a strong effort to place
outside developers on the same footing as Microsoft's applications
developers throughout the development process, the RPFJ permits
Microsoft to delay disclosure until the last minute, without any
analogue to the requirement that Microsoft promptly update changes
made in the final pre-release stage.
Another significant built-in delay results from the definition
of ``Non-Microsoft Middleware Product'' to include only
products that have one million users. RPFJ VI(N) (ii).
That definition governs the extent of the anti-retaliation
provisions in RPFJ III(A)(1), III(C), and III(H).
Moreover, the icon flexibility and information disclosure provisions
apply only to Microsoft Middleware and Microsoft Middleware
Products, each of which must have functionality similar to a Non-
Microsoft Middleware Product. See RPFJ VI(J)(3),
VI(K)(2)(b)(ii). By restricting all of these protections to
middleware products that have distributed more than one million
copies, the RPFJ encourages Microsoft to crush new middleware
threats at the earliest stages. That is, the RPFJ puts a
premium--;indeed, a judicial imprimatur--;on the
monopolistic exclusion of nascent threats before the innovations in
those products reach a sizable mass of consumers. That flies in the
face of the concerns behind the judgments of liability in this case.
See Microsoft III, 253 F.3d at 54, 79.
VII. ADDITIONAL WEAKNESSES UNDERCUT THE RPFJ
A. The Anti-Retaliation Provisions Are Deeply Flawed
Although anti-retaliation provisions are clearly necessary, the
provisions in the RPFJ proceed from a misguided premise that
retaliation by the monopolist--;abuse of monopoly power--;is
permitted unless squarely forbidden. The well-meaning restrictions
in the RPFJ leave Microsoft with ample recourse to use its monopoly
power to retaliate against those who aid competitive threats. See
Stiglitz/Furman Dec. 31-;32.
Most important, the anti-retaliation provisions permit Microsoft
to withdraw the Windows license of any OEM (or other licensee) that
does not serve Microsoft's anticompetitive bidding. The CIS (at 27,
66 Fed. Reg. 59,466) suggests that the provision of RPFJ
III(A) requiring notice and opportunity to cure a
violation provides some kind of protection to OEMs. But the
protection is evanescent, disappearing entirely after two notices
within a license term. See RPFJ III(A). See also
Stiglitz/Furman Dec. 31-;32.
Such notices will become routine, quickly and completely
nullifying this provision. In the rough-and-tumble of everyday
business, parties frequently diverge in minor respects from the
terms of their agreements. The CIS admits that ``Windows
license royalties and terms are inherently complex.'' CIS 28,
66 Fed. Reg. 59,466. Given that complexity, it would be surprising
if most OEMs did not transgress some term of their Windows licensing
agreements every year or so, if not more often. Such transgressions
would provide ample basis for Microsoft to retaliate without fear of
interference from the RPFJ.
There is no limit on what Microsoft can invoke as a reason for
termination, that is, there is no requirement that terminations be
for cause, much less for a material breach of the license agreement.
Indeed, the sudden termination that Microsoft may impose after two
notices--;even notices of purported violations that were
promptly and completely cured--;need not even be based on
something the OEM could cure.
The anti-retaliation provisions for software and hardware
vendors contain another weakness. Section III(F)(1)(a) forbids
retaliation against hardware and software vendors who support
software that competes with Microsoft Platform Software or that runs
on other platforms. But that provision therefore permits Microsoft
to use its Windows monopoly to crush middleware vendors if Microsoft
does not yet have competing middleware (see RPFJ
VI(K)-(L)) and whose middleware applications are
used on the Windows platform--;where any middleware would have
to start in order to be a practical bridge to another platform.
Moreover, when prohibiting a specific type of retaliation would
also help undermine the applications barrier to entry, the RPFJ hews
to a general approach rather than focusing on precise adjudicated
conduct. For example, Microsoft threatened to discontinue its port
of Microsoft Office for the Macintosh unless Apple ceased supporting
Netscape Navigator. See Microsoft III, 253 F.3d at 73-;74. Yet
the RPFJ does not require Microsoft to continue to offer Mac Office
(much less to keep the port current)--;an expedient that would
take away Microsoft's weapon rather than merely admonishing it to
behave well, and would tend to undermine the applications barrier to
entry as well.
B. Microsoft Can Evade The Price Discrimination Restrictions
The uniform pricing provisions in RPFJ III(B) have
too narrow a reach to provide significant limits on Microsoft's
ability to engage in price discrimination in order to force OEMs to
eschew non-Microsoft products that may threaten Microsoft's OS
monopoly. Microsoft's well-known market position in other products
permits easy evasion of these limits. For example, nothing prevents
Microsoft from discriminating in the pricing of its monopoly suite
of desktop productivity applications, Microsoft Office, to which
every OEM of any size needs access. Moreover, the leading PC OEMs
all build server computers using Intel-based hardware, and
increasingly rely on revenue from servers to make up for the
exceptionally low margins on desktop PCs. To continue in the Intel-
based server business, PC OEMs must license Microsoft's server
operating systems, which are dominant on the Intel-based platform.
The RPFJ places no limits on Microsoft's pricing of server operating
systems, providing another outlet for the nullification of RPFJ
III(B).
Even on their own terms, however, the RPFJ pricing provisions
contain a substantial loophole. Microsoft can reward an OEM for an
``absolute level * * * of promotion'' of Microsoft
products. RPFJ III(A). That provides a means for
Microsoft to distinguish between OEMs who make sure that Microsoft
software dominates their offerings, and OEMs who either promote
competing software or simply do not interfere with consumers''
choices.
C. Microsoft Can Enforce De Facto Exclusivity
Despite a superficial prohibition, Sections III(F)(2) and Ill(G)
permit Microsoft to impose practical, effective exclusivity
obligations on ISVs and others who need access to Windows to develop
their products. Microsoft need do no more than recast its agreements
with ISVs as contracts to ``use, distribute, or promote * * *
Microsoft software'' or ``to develop software for, or in
conjunction with, Microsoft,'' RPFJ III(F)(2), or
as a ``joint venture,'' joint development * * *
arrangement'' or ``joint services arrangement.'' Id.
III(G). New ``joint development agreements''
or ``joint services arrangements'' likely will supersede
the current licenses for use by ISVs of Microsoft software
developments tools and perhaps also the current arrangements for
preferential access under MSDN. At best, a decree court would have
to undertake a full antitrust analysis of whether the joint venture
was ``bona fide.'' Id. III(G). To nullify
RPFJ III(F)(2), Microsoft could simply change its
development tools agreements to require use of Microsoft
software--; which literally would be ``a bona fide
contractual obligation * * * to use * * * Microsoft software.''
Since any ISV that wants its software to run on Windows almost
certainly would need to use Microsoft's development tools, the anti-
exclusivity provision, like so many others in the RPFJ, would have
no practical effect.
DOJ has defended this provision as necessary to permit
legitimate ``procompetitive collaborations.'' CIS 44, 66
Fed. Reg. 59,470. But the broad terms of the RPFJ itself provide
little basis for hope that the objects of joint ventures permitting
exclusivity will not include a variety of ``new'' products
that amount to little more than routine alterations to Windows and
other Microsoft products in conjunction with requests from other
industry participants. It is not uncommon for an ISV to ask for a
new API, or for an IHV to ask for some other specification in
Windows. These exercises soon may become objects of ``joint
ventures'' or ``joint development agreements'' under
RPFJ III(G).
RPFJ III(G)(1) undercuts its superficial
prohibition on contracts that would require participants at
different levels of the market to install or promote Microsoft
Platform Software to a ``fixed percentage'' of those
participants'' own customers. Section III(G)(1) permits
Microsoft to impose such contracts so long as it ``in good
faith obtains a representation that it is commercially practicable
for the entity to provide equal or greater distribution, promotion,
use or support for software that competes with
[[Page 28379]]
Microsoft Platform Software.'' Such representations should be
easy to come by, so long as Microsoft pays enough. There is nothing
to require a single party making such a representation actually to
carry out the parallel distribution that it told Microsoft was
``commercially practicable.'' And it should be easy enough
for Microsoft, through a wink and a nod, to ensure that any such
representations were not accompanied by efforts to prove that
commercial practicability to Microsoft's detriment.
VIII. THE RPFJ'S ENFORCEMENT MECHANISMS ARE FUNDAMENTALLY
INADEQUATE.
As we have shown above, the RPFJ fails adequately to prevent
Microsoft from engaging in illegal and anticompetitive practices,
and allows it to continue the patterns of behavior that led to this
litigation in the first place. The RPFJ suffers from an important
secondary flaw, however: the enforcement mechanisms contained in
Section IV are fundamentally inadequate. The RPFJ commits much of
the practical enforcement responsibility to a ``Technical
Committee,'' RPFJ IV(B), that would monitor
``enforcement of and compliance with'' the RPFJ. Id.
IV(B)(1). The Technical Committee is likely to impede
enforcement rather than aid it.
First, Microsoft--;the antitrust violator--;could exert
inappropriate control over the membership of the Technical
Committee. Rather than creating a special master or an independent
review committee to monitor compliance with the consent decree, the
RPFJ allows Microsoft to have an equal voice with the plaintiffs in
choosing the members of the Technical Committee; indeed, Microsoft
may choose one of the three members outright. Id.
IV(B)(3). Although appointing a special master with
real (though reviewable) power might make sense as a matter of
judicial administration, allowing Microsoft to choose its own
monitor makes no sense at all.
The composition of the Technical Committee suffers from a second
defect. The RPFJ provides that ``[t]he Technical Committee
members shall be experts in software design and programming.''
RPFJ IV(B)(2) (emphasis added). The interpretation of
the RPFJ is largely a legal matter, however, dependent on adequate
knowledge of the antitrust Section after section of the RPFJ is
extraordinarily vague. 19 Experts in software design simply will not
have any basis adequately to review complaints that Microsoft's 19
For example, as we discussed above the RPFJ relies heavily on a
``reasonableness'' standard of conduct that simply
reproduces a full analysis under the antitrust laws. Antitrust
remedies, like other injunctive decrees, are supposed to be amenable
to swift and sure enforcement, according to standards that give
warning of what is forbidden and what is permitted both to the
wrongdoer and to its potential victims. But again and again, the
RPFJ would require both the Technical Committee and eventually the
decree court to determine whether Microsoft's conduct was
``reasonable.'' behavior fails to comply with the RPFJ.
However, that is the entire purpose of the Technical Committee. Not
only is the selection and composition of the Technical Committee
problematic; the RPFJ's restrictions on how the Technical Committee
can go about its business are equally inadequate. For example, it is
likely that all third-party allegations of misconduct by Microsoft
will be reviewed by the Technical Committee. 20 But the Technical
Committee lacks any real power, and operates almost entirely in
secrecy. Even if the Technical Committee finds Microsoft to be
violating the RPFJ, its sole recourse is to ``advise Microsoft
and the Plaintiffs of its conclusion and its proposal for
cure.'' Id. IV(D)(4)(c). If DOJ or the settling State
plaintiffs proceed with a complaint, none of the ``work
product, findings or recommendations by the Technical Committee may
be admitted in any enforcement proceeding before the Court for any
purpose, and no member of the Technical Committee shall testify by
deposition, in court or before any other tribunal regarding any
matter related to [the RPFJ].'' Id. IV(D)(4)(d).
Enforce- ment would have to start over from scratch. In effect, the
Technical Committee's investigation is simply a waste of time. Even
were the plaintiffs to decide, based on a Technical Committee
report, that Microsoft had violated the RPFJ, the plaintiffs would
need independently to investigate that violation under Section
IV(A)(2). Indeed, the Technical Committee's reports to the 20 While
third parties have the right to raise complaints with the Internal
Compliance Officer, see RPFJ IV(C)(3)(g), the RPFJ
gives them no incentive to do so; such complaints would merely allow
a proven antitrust violator itself to determine whether it has
violated the RPFJ or again violated the antitrust laws. Although the
RPFJ also allows third parties to submit complaints directly to the
plaintiffs, see id. IV(D)(1), the plaintiffs can
thereafter at their sole discretion refer any such complaints to the
Technical Committee, id. IV(D)(4)(a), or to the
Internal Compliance Officer, id. IV(D)(3)(a).
plaintiffs will be secret. See RPFJ IV(B)(8)(e), (9).
Ultimately, the Technical Committee simply injects delay into the
process. But delay is indisputably in Microsoft's interest;
Microsoft's monopolies bring it $1 billion each month in free cash
flow, see Rebecca Buckman, Microsoft Has the Cash, and Holders
Suggest a Dividend, WALL ST. J., Jan 18, 2002, at A3. Microsoft not
only can afford to contest enforcement vigorously, but would not
have to postpone enforcement for long before the RPFJ expires.
Finally, the ``crown jewel'' provision in the RPFJ is
grossly inadequate. If at any point the court were to find that
Microsoft had ``engaged in a pattern of willful and systematic
violations,'' RPFJ V(B) (emphasis added), the RPFJ
provides only one remedy for plaintiffs or the court: to extend the
inadequate, and already overly-short, consent decree by ``up to
two years.'' But that is no deterrent. Willful and systematic
violations should result in divestiture that terminates the
illegally maintained monopoly once and for all. See Microsoft III,
253 F.3d at 103; United Shoe, 391 U.S. at 250. Slightly prolonging a
failed decree makes no sense at all.
CONCLUSION
The Revised Proposed Final Judgment should be rejected as
contrary to the public interest.
Respectfully submitted.
Donald M. Falk
Mayer, Brown & Platt
555 College Avenue
Palo Alto, California 9430
(650) 331-;2030
(650) 331-;2060 facsimile
David M. Gossett
Mayer, Brown & Platt
1909 K Street, NW
Washington, DC 20006
(202) 263-;3000
Dated: January 28, 2002
Edward J. Black
Jason M. Mahler
Computer and Communications
Industry Association
666 1lth Street NW
Washington, DC 20001
(202) 783-;0070
BEFORE THE UNITED STATES DEPARTMENT OF JUSTICE UNITED STATES OF
AMERICA, Plaintiff, V. MICROSOFT CORPORATION, Defendant. Civil
Action No. 98-;1232 (CKK)
STATE OF NEW YORK ex rel. Attorney General Eliot Spitzer, et
al., Plaintiffs, v. MICROSOFT CORPORATION, Defendant. Civil Action
No. 98-;1233 (CKK)
DECLARATION OF JOSEPH E. STIGLITZ AND JASON FURMAN
TABLE OF CONTENTS
I. QUALIFICATIONS--;1
II. PURPOSE--;2
III. INTRODUCTION--;2
IV. THE MODERN ECONOMIC THEORY OF COMPETITION AND MONOPOLY.--;6
A. Acquisition of a monopoly--;7
B. Potential for competition--;10
C. Consequences of monopoly--;12
D. Monopolies and innovation--;14
V. FACTS AND LEGAL CONCLUSIONS RELATING TO MICROSOFT--;16
A. Monopoly power--;16
B. Anticompetitive behavior--;17
C. Effectiveness of anticompetitive behavior in maintaining the
monopoly--;19
VI. OUTLINE OF AN EFFECTIVE CONDUCT REMEDY--;20
A. Creating more choices for consumers--;22
B. Reducing the applications barrier to entry--;23
C. Preventing Microsoft from strengthening its operating system
monopoly by bringing new products within its scope--;23
VII. ANALYSIS OF THE PROPOSED FINAL JUDGMENT--;24
A. Creating more choices for consumers--;26
1. Ensuring that OEMs and potentially ISVs have the right to modify
fundamental aspects of the computer experience in any way they
choose--;27
2. Ensuring that OEMs and ISVs have adequate information and
technical access to develop applications for, or even modifications
to, Windows--;29
3. Ensuring that OEMs and ISVs are protected from retaliation by
Microsoft for providing alternatives to consumers--;31
4. Ensuring that OEMs have financial incentives to make changes that
benefit consumers--;32
B. Reducing the applications barrier to entry--;34
[[Page 28380]]
1. Middleware and the applications barrier to entry--;34
2. Microsoft Office and the applications barrier to entry--;37
C. Preventing Microsoft from strengthening its operating system
monopoly by extending it to encompass additional products--;38
VIII. STEPS TO IMPROVE THE PROPOSED FINAL JUDGMENT: THE LITIGATING
STATES'' ALTERNATIVE--;39
A. Fostering competition through OEMs and reducing the applications
barrier to entry--;40
B. Internet Explorer browser open source and Java
distribution--;41
C. Cross-platform porting of Office--;42
D. Mandatory disclosure to ensure interoperability--;42
IX. CONCLUSION--;43
I. QUALIFICATIONS
Our names are Joseph Stiglitz and Jason Furman. Dr. Stiglitz is
a Professor at Columbia Business School, Columbia's Graduate School
of Arts and Sciences (in the Department of Economics), and
Columbia's School of International and Public Affairs. In 2001, Dr.
Stiglitz was awarded the Nobel Prize in Economic Sciences. In
addition, Dr. Stiglitz serves as a Senior Director and Chairman of
the Advisory Committee at Sebago Associates, Inc., an economic and
public policy consulting firm.
Dr. Stiglitz previously served as the World Bank's Chief
Economist and Senior Vice President for Development Economics.
Before joining the Bank, he was the Chairman of the President's
Council of Economic Advisers. Dr. Stiglitz has also served as a
professor of economics at Stanford, Princeton, Yale, and All Souls
College, Oxford.
As an academic, Dr. Stiglitz helped create a new branch of
economics--;``The Economics of
Information''--;which has received widespread application
throughout economics. In the late 1970s and early 1980s, Dr.
Stiglitz helped revive interest in the economics of technical change
and other factors that contribute to long-run increases in
productivity and living standards. Dr. Stiglitz is also a leading
scholar of competition policy.
In 1979, the American Economic Association awarded Dr. Stiglitz
its biennial John Bates Clark Award, given to the economist under 40
who has made the most significant contributions to economics. His
work has also been recognized through his election as a fellow to
the National Academy of Sciences, the American Academy of Arts and
Sciences, and the American Philosophical Society, as well as his
election as a corresponding fellow of the British Academy. He has
also been awarded several honorary doctorates.
Jason Furman is a Lecturer in economics at Yale University. In
addition, Mr. Furman is a Director at Sebago Associates. Mr. Furman
previously served as Special Assistant to the President for Economic
Policy at the White House, where his responsibilities included tax
policy, the Federal budget, Social Security, anti-poverty programs,
and other economic policy issues.
II. PURPOSE
This Declaration was commissioned by the Computer &
Communications Industry Association (CCIA) as an independent
analysis of the competitive effects of the Proposed Final Judgment.
The views and opinions expressed in this Declaration are solely
those of the authors based on their own detailed study of the
relevant economic theory and court documents; they do not
necessarily reflect the views and opinions of CCIA. In addition, the
views and opinion expressed in this Declaration should not be
attributed to any of the organizations with which the authors are or
have previously been associated.
III. INTRODUCTION
Competition is the defining characteristic of a market economy.
It provides the incentive to produce new products that consumers
want, to improve efficiency and lower the costs of production, and
to pass on these innovations in the form of lower prices for
consumers. In a competitive market, a firm that does not act in the
best interests of consumers will be punished and, ultimately, will
fail. But when competition is imperfect--;or when it is
nonexistent as in the limiting case of monopoly--;the incentives
to undertake these beneficial actions may be attenuated. In fact, a
firm may even face incentives to behave in ways which do not serve
the interests of consumers or the economy more generally. Monopoly
power may lead a firm to underinvest in innovation, misdirect its
investments, or undertake other activities in order to stifle
competition rather than to improve products. Costs of production may
be excessive because the monopolist has insufficient incentives for
efficiency, has incentives to undertake costly measures to deter
competition, or undertakes measures to raise rivals'' costs.
And consumers will face higher prices and fewer choices in the short
run; in the long run, the losses to consumers may be even more
severe.
In a unanimous decision, the full Court of Appeals for the DC
Circuit upheld the District Court finding that Microsoft was guilty
of violating 2 of the Sherman Act through its illegal maintenance of
a monopoly in the market for Intel-compatible personal computer (PC)
operating systems.\1\ The Court of Appeals also affirmed numerous
findings of fact concerning the consequences of this illegal
monopolization for misdirecting innovation, raising rivals''
costs, and limiting consumer choice.
---------------------------------------------------------------------------
\1\United States v. Microsoft Corp., 253 F.3d 34 (DC Cir.
2001).
---------------------------------------------------------------------------
The desire to maintain this monopoly, even against potentially
superior products, creates a powerful incentive for Microsoft to
eliminate or weaken competition that could erode or even eliminate
its monopoly. In the mid-1990s, the principal threat to Microsoft's
Windows operating system came from the development of the Netscape
browser and Java technologies,\2\ which allowed programmers to write
applications to Netscape and Java, meaning that such programs would
then work on any operating system that would run Netscape or lava.
By reducing or even eliminating the cost of producing applications
for different operating systems, these technological rivals reduced
the barriers to entry for a new operating system and threatened,
over the longer run, to erode Microsoft's monopoly in Intel-
compatible PC operating systems by allowing competitors to provide
superior products at a lower cost.
---------------------------------------------------------------------------
\2\``The Java technologies include: (1) a
programming language; (2) a set of programs written in that
language, called the `Java class libraries,'' which
expose APIs; (3) a compiler, which translates code written by a
developer into `bytecode'; and (4) a Java Virtual
Machine (`JVM'), which translates bytecode into
instructions to the operating system.'' See 253 F.3d at 74,
citing Findings of Fact 73, United States v. Microsoft
Corp., 84 F. Supp. 2d 9, 29 (D.DC 1999).
---------------------------------------------------------------------------
Microsoft's conduct has effectively eliminated the threat posed
by Netscape and Java. Given ongoing rapid technological progress, it
is impossible to predict with certainty where the next challenge to
Microsoft Windows will come from. The experience in this area,
however, suggests that it is likely to come from rivalry at the
borders of operating systems, in particular from
``middleware'' that makes it possible for programmers to
write to the ``middleware'' rather than to the underlying
operating system. One such example comes from the increasingly
important area of multimedia: streaming media players. Whether the
next challenge to Microsoft's operating systems monopoly comes from
a multimedia package or another technology, Microsoft will continue
to have the same incentives and ability to stifle competition as it
displayed against Netscape and Java in the mid- 1990s.
The principal goal of any remedy for Microsoft's illegal
behavior in this case should be to foster competition and expand
choices for consumers. The key to achieving this goal is changing
Microsoft's incentives and taking steps to increase competition. A
structural remedy, such as splitting up the company, would most
directly alter incentives. Where such structural changes are not
possible, the remedy should prohibit and regulate the conduct that
Microsoft has used in the past and will have an incentive to use in
the future to eliminate threats from ``middleware''
products that threaten to limit its monopoly power by usurping some,
and perhaps eventually all, of the important functions of the
Windows operating system.
The Revised Proposed Final Judgment (PFJ) of November 6, 2001
does not change Microsoft's incentives to undertake anticompetitive
acts to stifle consumer choice by thwarting potentially superior
products\3\) Furthermore, the PFJ provides few effective
prohibitions against future anticompetitive conduct: It
alternatively ratifies Microsoft's existing conduct, contains
sufficient loopholes to allow Microsoft to circumvent the
legislation, and suffers from toothless enforcement procedures that
would allow Microsoft to reap the fruits of its monopoly for a
significant, and potentially even indefinite, period. In our view,
the PFJ would leave intact Microsoft's ability to maintain, and
benefit from, its Windows operating system monopoly, while allowing
[[Page 28381]]
it to continue to limit choices for consumers and stifle innovation.
---------------------------------------------------------------------------
\3\United States v. Microsoft Corp., Revised Proposed
Final Judgment, in the U.S. District Court for D.C, November 6,
2001.
---------------------------------------------------------------------------
The PFJ does not even accomplish the limited remedial goals
articulated in the U.S. Department of Justice's Competitive Impact
Statement (CIS).\4\ Specifically, in addition to its loopholes and
its inadequate enforcement mechanism, the PFJ is entirely silent on
several key findings of the Court of Appeals, including the
commingling of applications and operating systems code, the
pollution of Java, and the applications barrier to entry more
broadly.
---------------------------------------------------------------------------
\4\U.S. Department of Justice (November 15, 2001),
Competitive Impact Statement in United States vs. Microsoft Corp.
---------------------------------------------------------------------------
The PFJ should be rejected and replaced with a remedy that
changes Microsoft's incentives to unfetter the market for
competition. At a minimum, a remedy in this case needs to restrain
Microsoft's conduct, by restricting the means through which
Microsoft can illegally maintain and benefit from its monopoly.
The goal of this Declaration is to analyze the PFJ. It does not
propose a detailed alternative remedy. It is important to note,
however, that the proposal by the litigating States, while
imperfect, is clearly superior to the PFJ in all of these regards.
We do not address more aggressive remedies--;such as structural
changes to break up Microsoft or impose more extensive limitations
on its intellectual property rights--;but we note that such
broader measures may well be necessary and desirable in order to
alter Microsoft's incentives for anti-competitive behavior.\5\ We
are convinced, however, that the PFJ fails to meet the minimum
requirement of an acceptable remedy--;that is, it is unlikely to
substantially increase competition in the relevant market.
---------------------------------------------------------------------------
\5\Restrictions on intellectual property rights have been
used as a remedy in past antitrust cases, for example IBM's 1956
tabulating machines case, in a manner that is both effective and
largely without adverse effects.
---------------------------------------------------------------------------
The remainder of this Declaration contains five sections. First,
it presents a brief discussion of the modem theory of competition,
focusing on its relation to innovation. Second, it summarizes the
relevant facts and legal conclusions relating to Microsoft. Third,
it outlines what an effective remedy in this case should entail.
Fourth, it examines the PFJ and highlights its deficiencies in
comparison to this effective remedy. Finally, the paper concludes
with a brief discussion of practical measures that could provide a
more effective remedy.
IV. THE MODERN ECONOMIC THEORY OF COMPETITION AND MONOPOLY
This section presents a brief overview of the modem economic
theory of competition and monopoly. The theory of competition has
evolved rapidly in the last few decades, due in part to the natural
evolution of economic thought and in part to the issues raised by
the ``new economy'' (such as the importance of network
effects and rapid innovation). Given the vast literature on the
topic, this discussion is necessarily selective and focuses on the
most relevant issues for Microsoft's monopoly of the market for
operating systems for Intel-compatible PCs. This theoretical
background motivates the conclusions about the PFJ.
A. Acquisition of a monopoly
The traditional view of monopoly is that in specific industries,
like public utilities, increasing returns to scale create a
situation in which luck or initial success will eventually lead to
one firm that can maintain its monopoly by controlling an entire
market and thus benefiting from the lower average costs of
production that result from the larger scale of production. This
aspect of the traditional view is still salient in the software
market. Producing a software program has high fixed costs in the
form of investments in research and development but, once this
investment has been made, virtually no marginal cost from producing
additional units. As a result, the larger the scale of production,
the lower the average cost. By itself, these increasing returns to
scale will provide a powerful force for consolidation.
The modem view of monopoly has added an additional effect that
can strengthen the advantages enjoyed by the lucky or initially
successful firm: network effects.\6\ 6 Network effects arise when
the desirability of a product depends not just on the
characteristics of the product itself but also on how many other
people are using it.
---------------------------------------------------------------------------
\6\For an overall survey, see Michael Katz and Carl
Shapiro (1994), ``Systems Competition and Network
Effects.'' Journal of Economic Perspectives, 8:2, 93-;115.
For a specific application to Microsoft, see Timothy Bresnahan
(2001), ``The Economics of the Microsoft Case.'' Mimeo
available at http://www.stanford.edu/tbres/Microsoft/The Economics
of The Microsoft Case.pdf.
---------------------------------------------------------------------------
Network externalities may be direct: as a user of Microsoft
Word, I benefit when many other people also use the program because
it is easier to share Word files. Network externalities may also be
indirect: I am more likely to purchase a computer and operating
system if I know that more software choices are currently available
(and will be available in the future) for this system. An operating
system with a larger set of existing (and expected) compatible
applications will be more desirable. This indirect network effect
has been called the ``applications barrier to
entry.''\7\ The main reason that consumers demand a
particular operating system is its ability to run the applications
that they want. In developing applications, Independent Software
Vendors (ISVs) incur substantial sunk costs and thus face increasing
returns to scale. This motivates ISVs to first write to the
operating system with the largest installed base. Because
``porting'' an application to a different operating system
will result in substantial additional fixed costs, a firm will have
less incentive to produce the application for operating systems with
a smaller installed base, and may do so with a delay or forgo
porting completely.
---------------------------------------------------------------------------
\7\Franklin Fisher, ``Direct Testimony of Franklin
Fisher'' in United States v. Microsoft Corp.
---------------------------------------------------------------------------
The applications barrier to entry can skew competition for an
extended period of time and ensure that any monopoly power, once
established, will tend to persist. In choosing a PC and an operating
system, consumers make a large fixed investment. In addition,
because a considerable amount of learning is associated with the use
of operating systems and associated applications, and because files
created under one applications software program may not be easily or
perfectly transferable to others, there are large costs associated
with switching. As a result, consumers will evaluate, among other
factors, the current existence of compatible applications and the
likely number of future compatible applications.\8\ 8 The current
number of compatible applications is likely to depend directly on
the past and current market share of the operating system. A
consumer's reasonable evaluation of the prospects for the continued
support of his or her favorite applications and the development of
new applications is also likely to be based on current market share.
As a result, increased market share indirectly increases the
desirability of an operating system.
---------------------------------------------------------------------------
\8\Nicholas Economides (1996), ``The Economics of
Networks.'' International Journal of Industrial Organization,
14:2.
---------------------------------------------------------------------------
Empirically, this applications barrier to entry is dramatic. At
its peak in the mid-1990s, IBM's operating system, OS/2 Warp, had 10
percent of the market for operating systems for Intel-compatible PCs
and ran approximately 2,500 applications. In contrast, Windows
supported over 70,000 applications.\9\ Establishing a new operating
system that effectively competes head-to-head with Windows would
require the hugely expensive task of attracting ISVs to port
thousands or even tens of thousands of programs to the new operating
system, a process with a substantial fixed cost and, in the absence
of a large guaranteed market, little scope to benefit from economies
of scale. Particularly important to the applications barrier to
entry is the availability of applications providing key
functionalities, such as office productivity. Microsoft's dominance
in this area, and its choice about whether or not to port its
Microsoft Office program to alternative operating systems, can add a
new and even higher level to the applications barrier to entry.
---------------------------------------------------------------------------
\9\Findings of Fact, 40 and 46,
84 F. Supp. 2d at 20, 22.
---------------------------------------------------------------------------
With this barrier to entry, a monopoly once established may be
hard to dislodge. Anticompetitive practices early in the competitive
struggle can lead to a market dominance that can persist, even if
the anticompetitive practices which gave rise to the monopoly
position are subsequently prohibited. These hysteresis effects are
reinforced by switching costs. Learning a language or a program
interface may involve significant costs. Users must therefore be
convinced that an alternative program is substantially superior if
they are to be induced to incur the learning and other costs
associated with switching to an alternative product. These
``lock in'' effects make it more difficult to dislodge a
firm that has established a dominant position, even when it is
technically inferior to rivals.
This perspective has two important policy implications. First,
it is imperative to address anticompetitive practices as quickly as
possible. Delay is not only costly, but it impedes the restoration
of competition even in the longer run. Second, prohibiting the
[[Page 28382]]
practices that gave rise to the monopoly may not suffice to restore
competition. Stronger conduct, and possibly structural, remedies may
be required.
B. Potential for competition
In the most simplistic view, a monopoly once attained is
permanent. Increasing returns to scale and network externalities
make the monopolist impregnable--;any new entrant can be priced
out of business by the monopolist--;which can then go back to
charging the monopoly price for the product.
In contrast to this simplistic static view, the economist Joseph
Schumpeter presented a dynamic vision of technological change giving
rise to a series of temporary monopolies. In his vision, the most
successful firm in a winner-take-all contest would become a
temporary monopolist, benefiting from the rents that this monopoly
confers--;a process necessary to justify incurring the sunk
costs in research and development required to obtain the monopoly in
the first place. But, in the Schumpeterian vision, this monopoly
would eventually be toppled by entry as a newly innovative entrant
displaced the monopolist with a superior product, thus reaping the
benefits of increasing returns to scale and network
externalities.\10\
---------------------------------------------------------------------------
\10\Joseph Schumpeter (1942 / 1984), Capitalism,
Socialism and Democracy. Harper Collins, New York.
---------------------------------------------------------------------------
The real world likely lies somewhere between these two views. A
monopoly is not a fixed part of the economic landscape. But the
downfall of a monopoly is not inevitable. In fact, more recent
economic research strongly indicates that Schumpeter's conclusion
was wrong; when restraints on anticompetitive conduct are absent, a
monopoly can take steps to ensure that it is likely to be
perpetuated.\11\ These steps can suppress the overall level of
innovation and have other high social costs.\12\ Significant network
effects combined with switching costs, as discussed above, represent
one way in which a firm can perpetuate its market power.
---------------------------------------------------------------------------
\11\See, among other references, Richard Gilbert and
David Newbery (1980), ``Preemptive Patenting and the
Persistence of Monopoly.'' American Economic Review 72(3), pp.
514-;526 and Partha Dasgupta and Joseph Stiglitz (1980),
``Uncertainty, Market Structure and the Speed of
R&D,'' Bell Journal of Economics, 11 (1), pp. 1-;28.
\12\Joseph Stiglitz (1987). ``Technological Change,
Sunk Costs, and Competition.'' Brookings Papers on Economic
Activity, 3, pp. 883-;937.
---------------------------------------------------------------------------
Understanding this point is central to understanding what
motivated the actions of Microsoft in promoting Internet Explorer
and restraining Netscape and Java, and also to understanding the
motivations of a conduct remedy to improve competition. Network
externalities are not a ``d factor'' in the economic
landscape. They depend, at least in part, on decisions by the
monopolist. A monopolist has substantial resources at its disposal
to strengthen barriers to entry and thus to maintain and strengthen
its monopoly power. Exclusionary conduct by the monopoly can be used
to prevent a reduction in the barriers to entry or even
affirmatively to raise them even higher. Java and Netscape would
have reduced the monopoly power of Windows by allowing a greater
variety of programs to function on a greater variety of operating
systems. The social benefits from such innovation were likely
significant, but Microsoft would have experienced significant losses
from the innovation through the erosion of its monopoly power.
Similarly, this same point can provide the rationale for
structural or conduct remedies that can potentially reduce barriers
to entry and thus increase competition in part, or all, of the
market. The fundamental idea is that Microsoft acted as it did
because it was afraid that Netscape and Java would reduce the
applications barrier to entry and thus undermine its operating
systems monopoly. By preventing this anticompetitive behavior, and
indeed promoting competition, a conduct remedy could have precisely
the opposite effect, creating the conditions for the dynamic,
innovative Schumpeterian competition that would otherwise be absent
in this market.
In understanding the monopoly in the operating systems market,
and how it fits into the overall PC platform, it is useful to
introduce some issues specific to this area. Timothy Bresnahan, a
Professor of Economics at Stanford University and a former Deputy
Assistant Attorney General and Chief Economist at the U.S.
Department of Justice Antitrust Division, formulated the concept of
``Divided Technical Leadership.''\13\ The concept
is that although each aspect of the platform is dominated by a
single company, different companies dominate different
``layers'' of the platform: ``At one stage, all of
IBM and Compaq (computer), Microsoft (OS), Intel (CPU), Netware
(networking OS), WordPerfect and Lotus (near-universal applications)
participated in technological leadership of the PC
platform.''\14\ In a situation of divided technical
leadership, according to Bresnahan, competition comes from two
sources: ``(1) firms in one layer encouraging entry and epochal
change in another layer and (2) rivalry at layer
boundaries.''\15\ To the degree that divided technical
leadership is absent, because for example Microsoft controls many of
the layers (operating system, office applications, networking,
browsers, etc.), competition will be restricted. Any measures to
facilitate divided technical leadership, even if they leave the
monopoly at any given layer intact, will facilitate competition and
thereby benefit consumers in the form of greater innovation, more
choices, and lower prices.
---------------------------------------------------------------------------
\13\Timothy Bresnahan and Shane Greenstein (1999),
``Technological Competition and the Structure of the Computer
Industry.'' Journal of Industrial Economics, 47(1): pp. 140 and
Bresnahan (2001).
\14\Bresnahan (2001), p. 5.
\15\Bresnahan (2001), p. 6.
---------------------------------------------------------------------------
C. Consequences of monopoly
Traditional economic theory suggests that the principal
consequence of a monopoly is to raise prices and restrict
production. This combination has two consequences. First, higher
prices allow the monopolist to capture some of the surplus
previously enjoyed by consumers. Second, restricted production
results in a deadweight loss for society, the so-called
``Harberger triangle,'' to the extent that the value
placed on the forgone consumption by consumers exceeds its cost to
producers.\16\
---------------------------------------------------------------------------
\16\Arnold Harberger (1954), ``Monopoly and Resource
Allocation,'' AEA Papers and Proceedings, 44: 77-;87.
---------------------------------------------------------------------------
Over the last few decades, economists have substantially
enhanced this traditional theory and explored other ways in which
market power imposes social costs. The modem view is that when
competition is imperfect, firms try to maintain and extend their
market power by taking actions to restrict competition. firms is
producing innovations In the world of perfect competition, the
source of success for that benefit consumers and reduce prices. In
the world of imperfect competition, an additional--;and perhaps
paramount--;source of success is the effort to reap monopoly
profits, capture rents, deter entry into the market, restrict
competition, and raise rivals'' costs.\17\
---------------------------------------------------------------------------
\17\Partha Dasgupta and Joseph Stiglitz (1998),
``Potential Competition, Actual Competition and Economic
Welfare.'' European Economic Review, 32: 569-;577. For an
extended discussion and additional references see Joseph Stiglitz
(1994), Whither Socialism, MIT Press, Cambridge.
---------------------------------------------------------------------------
Under the new view, the social costs of monopolies go well
beyond the ``Harberger triangles'' that result from higher
prices and restricted output. In fact, even if the monopolist is not
currently restricting output, the steps taken to maintain the
monopoly will result in substantial economic inefficiencies and
costs to society. These costs may be far larger than the monopoly
profits and far larger than the Harberger triangles. These social
losses reflect higher costs of production (both for the firm and its
rival), limited or distorted investment in innovation, a restricted
set of potentially inferior choices for consumers, and, in the long
run, higher prices.
D. Monopolies and innovation
The information technology industry is characterized by a rapid
rate of technological change. As the modem theory of competition and
monopoly underscores, it is important to focus not just on the
static issues that affect consumers today, but also on how the
mixture of monopoly, competition, and the intellectual property
regime affects the pace and direction of innovation.
Schumpeter emphasized that monopolies would provide both the
incentives and the means for innovation. According to Schumpeter,
the fear of losing monopoly rents would drive a monopolist to
continue innovating and these monopoly rents--;or the promise of
further monopoly rents in the future--;would provide the
financing for these innovations. Schumpeter's vision contains
elements of truth: the threat of competition may induce monopolists
to invest more in innovation than it otherwise might. But the pace
of innovation may be even higher if the incumbent's monopoly power
were curtailed. Monopoly power could lower the pace of innovation
for four reasons.
First, previous innovations are inputs into any subsequent
innovation. Monopoly power can be thought of as increasing the cost
of one of the central inputs into follow-on innovations. Standard
economic theory
[[Page 28383]]
predicts that as the cost of inputs into any activity increases, the
level of that activity falls.
Second, with more substantial barriers to entry, the threat of
Schumpeterian competition and therefore the incentives to innovate
are diminished. In the extreme case, if a monopoly could ensure that
there were no threat of competition, it would no longer have to
innovate. A monopolist's anticompetitive actions to raise barriers
to entry will reduce its future incentives to innovate, similarly
measures that increase competition will increase the Schumpeterian
incentive.
Third, innovation itself may be misdirected in order to secure a
monopoly by deterring entry and raising rivals'' costs. In
operating systems, for example, the development of alternative
proprietary standards and the construction of non-interoperable
middleware are examples of innovations that could potentially
strengthen monopoly power.
Fourth, the incentives of a monopoly to innovate are
limited.\18\ Since a monopolist produces less than the socially
optimal output, the savings from a reduction in the cost of
production are less than in a competitive market. Also, a
monopolist's incentives to undertake research will not lead it to
the socially efficient level. Rather, its concern is only how fast
it must innovate in order to stave off the competition--;a level
of innovation that may be markedly lower than socially optimal.
Consider, for example, a simple patent race in which a monopoly
incumbent can observe the position (at least partially) of potential
rivals. The monopolist's incentive is to move out in front of the
potential rivals by just enough to convince them that they cannot
beat the monopolist. Given those beliefs, the rivals do not engage
in research, and the monopolist can then slow down its research to a
lower level (since it no longer faces a viable threat).
---------------------------------------------------------------------------
\18\Kenneth Arrow (1962), ``Economic Welfare and the
Allocation of Resources for Invention.'' In The Rate and
Direction of Inventive Activity, Princeton University Press,
Princeton: pp. 609-;625.
---------------------------------------------------------------------------
In short, monopolization not only harms consumers by raising
prices and reducing output in the short run, but may reduce
innovation in the long run. These long-run harms, which are
especially important in innovative industries, may substantially
exceed the short-run costs to consumers.
v. FACTS AND LEGAL CONCLUSION RELATING TO MICROSOFT
In its decision, the Court of Appeals affirmed the District
Court's overall judgment, albeit on a narrowed factual and legal
basis. The Court of Appeals concluded that ``Microsoft violated
2 of the Sherman Act by employing anticompetitive means
to maintain a monopoly in the operating system market.'' 19 In
addition, the Court of Appeals overturned the lower court's judgment
that Microsoft violated 2 of the Sherman Act by
attempting to monopolize the web browser market. The Court of
Appeals remanded the decision on whether the tying of Internet
Explorer to Windows violated 1 of the Sherman Act and
indicated that tying should be evaluated under the rule of reason,
rather than under a per se rule; the U.S. Department of Justice
chose not pursue this issue further. The Court of Appeals also
vacated the District Court's Final Judgment, in part because of the
narrowed scope of the judgment on the conclusions of law.
The current task in this case is to develop a remedy that
addresses the central finding of the Court of Appeals: the
monopolization of the operating systems market. This judgment was
based on findings of fact and conclusions of law in three areas:
Microsoft has monopoly power in the relevant market, Microsoft
behaved anticompetitively, and Microsoft's anticompetitive behavior
contributed to the maintenance of its monopoly. These are briefly
discussed in turn.
A. Monopoly power
Monopoly power is the power to set prices without regard to
competition. It can be inferred by the combination of market share
in the relevant market and significant barriers to entry. The
District Court found that Microsoft's share of the worldwide market
for Intel- compatible PC operating systems exceeded 90 percent in
every year of the 1990s and has risen to 19 253 F.3d at 46.
more than 95 percent in recent years. Microsoft did not dispute
these facts, but instead argued that the relevant market was broader
and should include all platform software (e.g., servers, handheld
devices, Macintosh computers, etc.). The Court of Appeals, however,
rejected Microsoft's attempt to broaden the definition of the
market, agreeing with the District Court that these other platforms
were not ```reasonably interchangeable by consumers for
the same purposes.'''\20\
---------------------------------------------------------------------------
\20\253 F.3d at 52, quoting United States v. E.I. du Pont
de Nemours & Co., 351 U.S. 377, 395 (1956).
---------------------------------------------------------------------------
In addition, the Court of Appeals affirmed the finding that
Microsoft's dominant market share was likely to persist. This
conclusion was based on the substantial barriers to entry, including
increasing returns to scale and the applications barrier to entry
discussed above. As a result, according to the Court of Appeals,
``Because the applications barrier to entry protects a dominant
operating system irrespective of quality, it gives Microsoft the
power to stave off even superior new rivals. The barrier is thus a
characteristic of the operating systems market, not of Microsoft's
popularity.''\21\
---------------------------------------------------------------------------
\21\253 F.3d at 56.
---------------------------------------------------------------------------
B. Anticompetitive behavior
The Court of Appeals found numerous instances where Microsoft
behaved anticompetitively through exclusionary conduct that harmed
consumers, had an anticompetitive effect, and had either no
``procompetitive justification'' or an insufficient
``procompetitive justification'' to outweigh the harm.
These actions, according to the Court of Appeals, had the intention
and effect of preserving or increasing the applications barrier to
entry. The Court of Appeals upheld most of the general categories of
anticompetitive behavior originally found by 20 253 F.3d at 52,
quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S.
377, 395 (1956).
the District Court, but overturned some of the District Court's
specific findings in these areas. The key instances of this
anticompetitive behavior found by the Court of Appeals include:
Restrictive Licenses to Original Equipment Manufacturers (OEMs).\22\
Microsoft's Windows license placed restrictions on OEMs that limited
their ability to change the look of the Windows desktop, the
placement or removal of icons for browsers, or the initial boot
sequence. The result was to increase the user share of Internet
Explorer, not because of its merits, but because Microsoft limited
the crucial OEM channel of distribution for Explorer's chief rival,
Netscape. � Integration of Internet Explorer into
Windows.\23\ Microsoft discouraged OEMs from installing other
browsers and deterred consumers from using them by not including
Internet Explorer in the Add/Remove programs list for Windows 98 and
commingling the operating system and browser code.
---------------------------------------------------------------------------
\22\The Court of Appeals narrowed the scope of this
anticompetitive behavior slightly, rejecting the District Court's
finding that Microsoft's restrictions on alternative interfaces was
anticompetitive, arguing that the ``marginal anticompetitive
effect'' of Microsoft's license restrictions was outweighed by
the alternative, the ``drastic alteration of Microsoft's
copyrighted work.'' See 253 F.3d at 63.
\23\The Court of Appeals, however, overruled the District
Court in one instance, finding a sufficient justification for the
fact that in certain situations Internet Explorer will override user
defaults and launch, for example when alternative browsers do not
provide the functionality required by Windows Update. See 253 F.3d
at 67.
---------------------------------------------------------------------------
�Agreements with Internet Access Providers (IAPs).\24\
Microsoft engaged in exclusionary conduct to restrict the second
main distribution channel for Netscape by offering IAPs, including
America Online, the opportunity to be prominently featured in
Windows in exchange for using the Internet Explorer browser
exclusively. Dealings with ISVs and Apple.\25\ Microsoft further
restricted additional outlets for Netscape by providing ISVs with
preferential access to information about forthcoming releases of
Windows 98 in exchange for their writing to Internet Explorer rather
than Netscape. In addition, Microsoft negotiated with Apple to
restrict the ability of Macintosh consumers to use Netscape in
exchange for continuing to develop and support Microsoft Office for
the Macintosh operating system. � Polluting Java. The Court
of Appeals also found that much of Microsoft's behavior vis- a-vis
Java was an attempt to limit a threat to its operating system
monopoly rather than benefit consumers. These illegal actions
included entering into contracts requiring ISVs to write exclusively
to Microsoft's Java Virtual Machine, misleading ISVs into thinking
that Microsoft's Java tools were cross-platform compatible, and
forcing Intel to terminate its work with Sun Microsystems on
Java.\26\
---------------------------------------------------------------------------
\24\The Court of Appeals found that several inducements
offered by Microsoft to encourage IAPs to use Internet Explorer were
not anticompetitive. See 253 F.3d at 68.
\25\The Court of Appeals overturned the finding that
Microsoft's deals with Internet Content Providers were
anticompetitive. See 253 F.3d at 71.
\26\See 253 F.3d at 74-;78. The Court of Appeals,
however, found a sufficient procompetitive justification for
Microsoft's development of its own version of a Java virtual
machine. See id. at 74-;75.
---------------------------------------------------------------------------
[[Page 28384]]
C. Effectiveness of anticompetitive behavior in maintaining the
monopoly
Finally, the Court of Appeals found that Microsoft's
anticompetitive efforts to increase usage of Internet Explorer and
Microsoft's Java Virtual Machine at the expense of Netscape and
Sun's Java had the effect of increasing the applications barrier to
entry and thus helping to maintain Microsoft's monopoly of the
market for operating systems for Intel-compatible PCs. This finding
is the crucial link to the economics of the case; a monopoly is
neither automatically permanent nor automatically transient. Rather,
its persistence depends, in part, on the barriers to entry which, in
turn, depend on the actions of the monopolist and the regulation of
the government. This finding is also crucial to the development of
proposed remedies.
Specifically, the Court of Appeals found that although neither
Netscape nor Java posed an imminent threat of completely replacing
all the functions of the operating system (and thus should be
excluded from the definition of the relevant market for the test of
monopoly power), they did pose a nascent threat to Microsoft's
future dominance of the operating system market. Though not part of
the ``operating systems market,'' they clearly affected
the nature of competition in this market. Both Netscape and Java
established Applications Programming Interfaces (APIs) that allowed
developers to write some programs to Netscape and Java. These
programs would then be able to run on any operating system that runs
Netscape or Java. The result would be, at least in one segment of
applications, a dramatic reduction in the applications barrier to
entry. No longer would software developers have to incur additional
costs to run on additional operating systems. As a result, Netscape
and Java had the potential to act as a crucial level of
``middleware'' between the operating system and the
programs, and eventually could ``commoditize the underlying
operating system,'' to use the memorable words of then-
Microsoft Chairman and CEO Bill Gates in an internal memo.\27\
---------------------------------------------------------------------------
\27\United States v. Microsoft Corp., Government Exhibit
20.
---------------------------------------------------------------------------
The Court of Appeals wrote:
We may infer causation when exclusionary conduct is aimed at
producers of nascent competitive technologies as well as when it is
aimed at producers of established substitutes... the question in
this case is not whether Java or Navigator would actually have
developed into viable platform substitutes, but (1) whether as a
general matter the exclusion of nascent threats is the type of
conduct that is reasonably capable of contributing significantly to
a defendant's continued monopoly power and (2) whether Java and
Navigator reasonably constituted nascent threats at the time
Microsoft engaged in the anticompetitive conduct at
issue.''\28\
---------------------------------------------------------------------------
\28\253 F.3d at 79.
---------------------------------------------------------------------------
The court answered in the affirmative on both issues.
VI. OUTLINE OF AN EFFECTIVE CONDUCT REMEDY
The Court of Appeals was clear that the District Court has
``broad discretion'' to fashion a remedy that is
``tailored to fit the wrong creating the occasion for the
remedy.''\29\ In the CIS, the Department of Justice
appears to take a minimal view of the goals of a remedy, writing
that it should ``eliminate Microsoft's illegal practices,
prevent recurrence of the same or similar practices, and restore the
competitive threat that middleware products posed prior to
Microsoft's unlawful undertakings.''\30\ We believe that
the PFJ fails even within the narrow terms that the Department of
Justice set for itself.
---------------------------------------------------------------------------
\29\253 F.3d at 105, 107.
\30\CIS, p. 3.
---------------------------------------------------------------------------
The Court of Appeals appears to provide guidance for a broader
remedy, quoting the Supreme Court in saying that the role of a
remedies decree in an antitrust case is to ``unfetter a market
from anticompetitive conduct'' and ``terminate the illegal
monopoly, deny the defendant the fruits of its statutory violation,
and ensure that there remain no practices likely to result in
monopolization in the future.''\31\
---------------------------------------------------------------------------
\31\253 F.3d at 103, quoting Ford Motor Co. v. United
States, 405 U.S. 562, 577 (1972).
---------------------------------------------------------------------------
One type of potential remedy, imposed by the District Court but
vacated by the Court of Appeals, is structural. Such a structural
remedy would involve breaking Microsoft into two or more companies
with the goal of establishing a new set of incentives that foster
competition. Although potentially disruptive in the short run, the
goal of a structural remedy is to terminate the monopoly and create
the structural conditions to prevent it from re-emerging, without
requiring ongoing regulation or supervision by the court or the
government. Such structural remedies are particularly suitable when
there have been a wide variety of anticompetitive practices in the
past and when changing market conditions (such as innovation)
provide opportunities for new types of anticompetitive conduct in
the future. Structural remedies have the further advantage of
fundamentally altering incentives.
A second type of potential remedy relates to conduct or
licensing, seeking to prevent anticompetitive conduct and foster
competition. A conduct remedy has the advantage of avoiding the
dramatic and potentially deleterious changes associated with a
structural remedy, but suffers from the defect that it is
necessarily complicated and requires at least some involvement of
the court and the government in regulating private enterprise.
Ideally, a conduct remedy would also be structured to affect
incentives: in particular, such a remedy should raise the costs of
acting in an exclusionary manner.
The remainder of this section discusses an outline of the
elements of an effective conduct remedy that seeks to achieve three
goals: creating more choices for consumers, reducing the
applications barrier to entry, and preventing Microsoft from
strengthening its operating systems monopoly by bringing new
products within its scope. A. Creating more choices for consumers
A conduct remedy should empower rival computer companies to
modify their own versions of the computer experience to appeal to
consumers. Not only will consumers benefit from the greater product
choice, but entry and competition may be enhanced as consumers learn
how to interact with a variety of interfaces. At a minimum,
empowering OEMs and possibly ISVs to create more choices for
consumers would involve: (1) the right to modify the desktop, the
start menu, or other fundamental aspects of the computer experience
so that OEMs can market PCs with alternative overall
``looks'', different software packages (including
supplementing, replacing, or removing Microsoft middleware), and to
offer lower-priced options with reduced features; (2) adequate
information and technical access to develop applications for, and
even modifications to, functionalities included with Windows, which
would allow ISVs to develop their own bundle of the Windows
operating system plus applications (and/or minus Microsoft
middleware) that could be marketed either to OEMs or directly to end
users; (3) protection from retaliation by Microsoft for engaging in
this conduct; and (4) financial incentives to make changes that
benefit consumers.
B. Reducing the applications barrier to entry
The central goal of Microsoft's illegal conduct was to preserve
and strengthen the applications barrier to entry so that the Windows
operating system continued to be essential to desktop computing. An
effective conduct remedy in this case should take steps to reduce
the applications barrier to entry, by creating conditions conducive
to more competition and by requiring Microsoft to undertake actions
that would lower that barrier. Reducing the applications barrier to
entry is consistent with the findings of the Court of Appeals and is
central to an effective remedy in this case. Although the Court of
Appeals rejected or remanded the District Court's findings of
liability for tying and for monopolization of the browser market,
both of these actions were central to the Court's finding of
liability on the 2 Sherman Act violation for
monopolizing the market for operating systems. The Court found that
Microsoft used commingling of code and other exclusionary measures
to increase the market share for Internet Explorer and reduce the
distribution of Netscape and Java in order to strengthen the Windows
monopoly.
There are two specific aspects to reducing the applications
barrier to entry:
(1) encouraging competition in middleware in a manner that makes
it easier for developers to write programs that run on a variety of
operating systems, and (2) requiring Microsoft to port its dominant
applications to alternative operating systems.
C. Preventing Microsoft from strengthening its operating system
monopoly by bringing new products within its scope
Microsoft's ability to leverage its Windows monopoly to control
other aspects of computing that then reinforce the Windows monopoly
is a key part of its strategy of 23 anticompetitive conduct that
formed the foundation for the Court o[ Appeals ruling. To deal with
the anticompetitive practices that are ``likely to result in
monopolization in the future'' requires a remedy that addresses
not just areas of past misconduct, but emerging areas as well.
[[Page 28385]]
The next section compares the actual agreement to these
elements.
VII. ANALYSIS OF THE PROPOSED FINAL JUDGMENT
The PFJ fails to fulfill even the minimal goals set by the CIS.
It does not address many of the proven illegal practices, including
commingling, polluting Java, and strengthening the applications
barrier to entry more broadly. Furthermore, in our judgment the PFJ
would not ``restore the competitive threat that middleware
products posed prior to Microsoft's unlawful
undertakings.''\32\ Nothing in the PFJ would be likely
to resuscitate the conditions of greater ``divided technical
leadership'' that prevailed in the mid-1990s when Netscape and
Java both presented a serious threat to Microsoft, which Microsoft
suppressed through anticompetitive actions.
---------------------------------------------------------------------------
\32\CIS, p. 3.
---------------------------------------------------------------------------
The PFJ also falls dramatically short of all three elements of
the guidelines that appear to have been endorsed by the Court of
Appeals for the DC Circuit: it allows Microsoft's illegal monopoly
in operating systems to continue and perhaps even be strengthened,
it allows Microsoft to keep the fruits of its statutory violation,
and it leaves intact all of the incentives--; and many of the
means--;for Microsoft to maintain and extend its monopoly in the
future, especially in the important emerging areas of web services,
multimedia, and hand-held computing.
The main impact of the PFJ is to codify much of Microsoft's
existing conduct. Where the agreement limits Microsoft's conduct,
there are often sufficient exceptions, loopholes, or alternative
actions that Microsoft could undertake to make the initial conduct
limits meaningless. Even where the limits are binding, Microsoft
could still flout the conduct restrictions without fear of a timely
enforcement mechanism. Because the Technical Committee\33\ is
essentially advisory and only has expertise in software design, not
law and marketing, the only enforcement of the PFJ is through a full
legal proceeding--;which would provide enough time for Microsoft
to inflict irreversible harm on competition. The time issues are
especially important because in a market characterized by increasing
returns to scale and network externalities, once a dominant position
is established it will be hard to reverse, even if the original
abusive practices are subsequently circumscribed.
---------------------------------------------------------------------------
\33\The Technical Committee consists of three experts in
``software design and programming''--; one appointed
by Microsoft, one by the plaintiffs, and the third by these previous
two. The Committee would have broad access to internal Microsoft
documents, source code, etc. It would be responsible for reporting
any violations of the PFJ to the plaintiffs. They would not,
however, be able to rely on the work of the Technical Committee in
Court proceedings. See PFJ, Section IV.B.
---------------------------------------------------------------------------
The fundamental problem with the agreement is that it does not
change the incentives that Microsoft faces. All of the illegal
anticompetitive actions identified by the District Court and
affirmed by the Court of Appeals were the result of rational
decisions by Microsoft about how best to enhance its value by
maintaining and expanding its monopoly. These same incentives will
persist under the PFJ; given these incentives, it impossible to
foresee--;let alone effectively prohibit--;the wide variety
of potentially anticompetitive conduct that may result. Indeed, the
reason that many economists have argued for the more drastic
structural settlement (such splitting up Microsoft) is that such
structural changes would alter incentives.\34\ Though the Court of
Appeals has determined that such a remedy might be too drastic, the
imperative in evaluating any remedy is to ascertain its impact on
incentives.
---------------------------------------------------------------------------
\34\See, for example, Robert Litan, Roger Noll, and
William Nordhaus (2002), ``Comment of Robert E. Litan, Roger D.
Noll, and William D. Nordhaus on the Revised Proposed Final
Judgment.'' United States v. Microsoft Corp., Before the
Department of Justice. The point is simple: now strategy with
respect both to applications and the operating system is designed to
maximize total profits, including the monopoly profits. With
structural separation,
---------------------------------------------------------------------------
The following analyzes the details of the PFJ by comparing it to
the principles outlined in the previous section. Our discussion does
not aim to be comprehensive, but instead to focus on areas that
illustrate or represent important economic aspects of the PFJ.
Although the enforcement aspects of the PFJ, in particular the
powers of the Technical Committee, are essential to understanding
the limitations of the agreement, we only briefly discuss these
issues.
A. Creating more choices for consumers
In developing a remedy, the court is well aware of its technical
shortcomings in deciding exactly what should or should not be
included as part of an operating system today--;or in the
future. Neither should these determinations be made solely by a
monopolist. These choices should be made by consumers through the
choices they have between different OEMs and ISVs. Stanford Law
Professor Lawrence Lessig described this strategy as follows:
``To use the market to police Microsoft's monopoly... by
assuring that computer manufacturers and software vendors remain
free to bundle and support non-Microsoft software without fear of
punishment by Microsoft.''\35\ We agree with Professor Lessig
that this should be among the goals of a final judgment and that the
current agreement is woefully inadequate in meeting this objective.
In our view, this is in fact a minimal objective that mitigates some
of the harms to consumers from Microsoft's monopoly position but, by
itself, would do little to reduce the applications barrier to entry
or facilitate competition in the operating systems market itself.
applications would be designed and marketed to maximize their own
profits, with no regard to how this might affect the profitability
of the operating system.
---------------------------------------------------------------------------
\35\Lawrence Lessig (December 12, 2001). ``Testimony
before the Senate Committee on the Judiciary.''
---------------------------------------------------------------------------
As noted above, a remedy that turns this overall strategy into a
reality requires four different elements: (1)ensuring that OEMs and
potentially ISVs have the right to modify the desktop, the start
menu, or other fundamental aspects of the computer experience in any
way they choose; (2) ensuring that OEMs and ISVs have adequate
information and technical access to develop applications for, and
even modifications to, Windows; (3) ensuring that they are protected
from retaliation by Microsoft for providing alternatives to
consumers; and (4) ensuring that they have financial incentives to
make changes that benefit consumers. The PFJ is deficient in all
four.
1. Ensuring that OEMs and potentially ISVs have the right to
modify fundamental aspects of the computer experience in any way
they choose
The PFJ codifies several new rights for OEMs to modify the
desktop or the computer experience, some of which were already
voluntarily announced by Microsoft on July 11,2001 and implemented
with the release of Windows XP on October 25, 2001. Specifically,
Section III.C of the PFJ prohibits Microsoft from restricting OEMs
from ``Installing or displaying icons, shortcuts, or menu
entries for, any Non-Microsoft Middleware... distributing or
promoting Non- Microsoft Middleware by installing and displaying on
the desktop shortcuts of any size or shape...'' among other
actions.
This new required latitude, however, is unduly limited in
several respects: New flexibility is quite narrow. OEMs can only
modify the initial boot screen to market IAPs to users, but cannot
modify it to uninstall Microsoft middleware or to market middleware
that competes with Microsoft middleware (Section III.C.5). Nothing
in the PFJ would allow ISVs to acquire licenses to create their own
bundles of Windows plus applications to market to consumers or OEMs,
a measure that could enhance competition by bringing additional
participants with substantial experience in software development
into the market. While the benefits to consumers and competition of
allowing ISVs to acquire such licenses are evident, Microsoft Would
only be harmed to the extent that it reduces its monopoly power.
There is no other convincing explanation for these restrictive trade
practices.
u It contains several limitations that limit the overall look of
Non-Microsoft Middleware and pace of innovation. For example, the
PFJ requires that the user interface on automatically launched Non-
Microsoft Middleware\36\ must be ``of similar size and shape to
the user interface displayed by the corresponding Microsoft
Middleware Product'', can only be launched when a similar
Microsoft product would have been launched, and Microsoft can impose
non-discriminatory bans on icons (Section III.C.3). In addition to
the fact that these limitation are frivolous, asymmetric, and would
seem to serve no purpose other than restricting competitive
threats--;no such limitations apply to Microsoft--;they
could also have a severe impact in limiting competition.
Specifically, it allows Microsoft to control the pace of innovation
in the computer experience, letting Microsoft delay the effective
launch of a new type of product until it is ready to compete in that
area. Thus
[[Page 28386]]
both competition and innovation may be impeded.
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\36\36 AS defined in Section VI.M.
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u It is unnecessarily delayed. Specifically, Section III.H gives
Microsoft up to 12 months or the release of Service Pack 1 for
Windows XP, whichever is sooner, to provide end users and OEMs a
straightforward mechanism to remove icons, shortcuts, or menu
entries for Microsoft Middleware Products or to allow OEMs or end
users to designate alternative Non-Microsoft Middleware
Products\37\ to be invoked by the Windows operating system in
place of Microsoft Middleware Products.\38\ There is certainly no
economic or legal justification for this delay and our understanding
is that it is technically feasible to carry out these changes in a
few weeks time, as demonstrated by Microsoft's July 11, 2001
voluntary agreement to implement elements of this provision. As we
have emphasized, there can be significant long-run consequences for
competition from even short delays.
---------------------------------------------------------------------------
\37\As defined in Section VI.N.
\38\As defined in Section VI.K.
---------------------------------------------------------------------------
u Microsoft could encourage users to undo changes after 14 days.
The value of the new contractual freedoms is limited by Microsoft's
ability to encourage the user to undo all OEM changes after 14 days
by allowing a user-initiated ``alteration of the OEM's
configuration... 14 clays after the initial boot up of a new
Personal Computer.'' (Section III.H.3) This provision, in
effect, would allow Microsoft to present a message to end users
(e.g., ``Press `yes'' to optimize your computer for
multimedia'') that could bias choices toward Microsoft
products, regardless of what the OEM had chosen. This provision
could therefore greatly reduce the scope and value of the changes
that OEMs make.\39\
---------------------------------------------------------------------------
\39\This provision would allow Microsoft to run the
``Desktop Cleanup Wizard'' that removes unused shortcuts
from the desktop in a non-discriminatory manner. Nothing in our
reading of the language of Section III.H.3, however, would limit the
power of Microsoft to remove all user access to non-Microsoft
middleware or restore access to Microsoft middleware.
---------------------------------------------------------------------------
2.Ensuring that OEMs ISVs have adequate information and
technical access to develop applications for, or even modifications
to, Windows
The right to make modifications to Windows will only work
effectively if OEMs and ISVs have the knowledge to exercise this
right. Microsoft currently releases an enormous quantity of
information on the Windows operating system and its APIs, through
the Microsoft Developer Network (MSDN) and other means. Indeed, the
indirect network externalities supporting the Windows monopoly
provide a strong incentive for Microsoft to ensure that as many
applications as possible run well on its system. But Microsoft also
has an incentive to bolster its operating system monopoly by
selectively withholding timely information to impede or delay the
development of products that threaten to reduce the applications
barrier to entry.\40\ In addition, Microsoft has also required
anticompetitive actions in exchange for information, as in the
``first wave'' agreements found illegal by the Court of
Appeals.\41\
---------------------------------------------------------------------------
\40\40 For example, the District Court found that
Microsoft withheld the ``Remote Network Access'' API from
Netscape for more than three crucial months in mid-1995. Findings of
Fact, � 90-;91, 84 F. Supp. 2d at 33.
\41\These agreements, which were entered into between the
Fall of 1997 and Spring of 1998 between Microsoft and several ISVs,
provided preferential early access to Windows 98 and Windows NT
betas and other technical information in exchange for using Internet
Explorer as the default browser. See See 253 F.3d at 71-;72.
---------------------------------------------------------------------------
The PFJ requires disclosure of ``the APIs and related
Documentation that are used by Microsoft Middleware to interoperate
with a Windows Operating System Product'' (Section III.D) and
specified Communications Protocols (Section III.E).
These requirements, however, are deficient in several ways:
u Windows APIs are not covered. In particular, the PFJ does not
require the disclosure of the APIs used by Windows. Although
Microsoft already has an incentive to disclose Windows APIs, there
are circumstances where delay could be more profitable. The
consequences of this omission are aggravated by the definition in
Section VI.U: ``the software code that comprises a Windows
Operating System Product shall be determined by Microsoft in its
sole discretion.'' Thus, as middleware gets blended in the
operating system, the scope of disclosures could be narrowed.
u Internet Explorer and other middleware APIs are not covered.
Furthermore, the agreement does not require the disclosure of the
APIs used by Internet Explorer. Although the government did not
prove that Microsoft was guilty of monopolizing the browser market,
dominating this market played a key role in shoring up its monopoly
in the operating systems market. As a result, requiring disclosure
of the APIs for Internet Explorer and other middleware could play a
role both in denying the fruits of that monopoly and reducing this
barrier to entry in its operating systems market. . Definitions
could limit disclosure even further. The scope of APIs required to
be disclosed under the agreement could be potentially limited even
further by the control Microsoft has over what is ``Microsoft
Middleware'' and what is the ``Windows Operating System
Product.''
. Additional loopholes further limit disclosure and ability of
non-Microsoft middleware to fully interoperate with Windows. Section
III.J.1 provides a substantial loophole that exempts from the
disclosure requirements anything that ``would compromise the
security of a particular installation,... digital rights management,
encryption or authorization systems...'' These are all very
important technologies for Windows Media Player, Passport, the
Internet Explorer browser, and any of the many programs that rely
increasingly on security and encryption. In addition to giving
Microsoft substantial discretion and blurring the disclosure
requirements further, these exceptions would make it impossible for
competitors to design middleware that fully interoperated with the
Windows operating system, leaving certain features only accessible
to Microsoft middleware.
. Disclosures are not timely. The disclosures are not very
timely, allowing Microsoft enough time to ensure that its
products--;and products by favored OEMs and ISVs--; enjoy a
substantial ``first to market'' benefit in taking
advantage of the functionality of the operating system. Microsoft
has up to 9-;12 months to disclose the APIs and communications
protocols. In the case of a new version of the Windows Operating
System Product, the PFJ bases the timing of the disclosure on the
number of beta testers, effectively giving Microsoft substantial
discretion over the timing of the required disclosures through its
definition of the term ``beta tester'' and its control
over their number. (Sections III.D and VI.R)
. Microsoft could cripple rival products. The PFJ does nothing
to prevent Microsoft from deliberately making changes in Windows
with the sole or primary purpose of disabling or crippling
competitors'' software products. 30
3. Ensuring that OEMs and ISVs are protected from retaliation by
Microsoft for providing alternatives to consumers The right to make
alterations to the Windows desktop will only be effective if
companies are protected from retaliation for exercising it. The PFJ
provides some protection against retaliation (Section III.A) and
requirements for uniform licensing and pricing for Microsoft Windows
(Section III.B). The protections, however, are only partial, in that
they omit several important behaviors, still leave substantial scope
for Microsoft to retaliate, and contain a very large loophole.
First, the prevention against retaliation only applies to a very
specific set of actions that are specified in the PFJ, such as
altering the icons on the desktop or promoting an IAP in the initial
boot sequence. This rule does not apply to other actions by OEMs,
such as the inclusion of third party software that does not fall
under the definition of Non-Microsoft Middleware.
Second, there may still be some scope for discrimination and
retaliation. Section III.B.3 of the PFJ explicitly gives Microsoft
the right to use ``market development allowances,'' for
example to provide a pre-license rebate to selected OEMs on the
basis of potentially ambiguous joint ventures. Although these
incentives would have to be offered uniformly, there still could be
some scope for defining them in an exclusionary manner. Furthermore,
the relationships between Microsoft and computer companies are very
complex and multifaceted, leaving substantial scope for retaliation
in aspects not covered by the PFJ, including potentially the pricing
of Microsoft Office and the server business.
Finally, Section III.A allows Microsoft to terminate the
relationship with an OEM without cause and within a brief span of
time simply by delivering two notices of termination. With no ready
substitutes for Windows available, this power would give Microsoft
substantial leverage in its relationships with OEMs. Although the
OEM would have the option of litigating Microsoft's denial of
a Windows license, the text of Section III.A and the lack of
``bright
[[Page 28387]]
line'' rules in the PFJ would make this litigation costly and
uncertain--;and thus an imperfect means of protection against
this threat. 4. Ensuring that OEMs have financial incentives to make
changes that benefit consumers
Even if the three previous conditions were met, they would be
economically irrelevant if OEMs did not have financial incentives to
take advantage of the new licensing freedoms. The production of PCs
is a highly competitive industry with very low profit
margins.\42\ PCs are virtually a commodity that can be priced
based on a limited set of characteristics like processor speed and
hard drive size. All of the steps allowed by the PFJ--;including
installing non- Microsoft middleware or removing user access to
Microsoft middleware--;entail higher costs for the OEMs both in
the costs associated with the initial configuration of the system
and in the added costs of end user support.\43\ In addition,
OEMs may perceive that Microsoft would take additional steps to
raise their costs through forms of retaliation either permitted by
the PFJ or imperfectly banned. These costs may explain why, to our
knowledge, no major computer manufacturer has yet taken Microsoft up
on its July 11, 2001 offer to remove access to Microsoft middleware
and replace it with non-Microsoft middleware.\44\
---------------------------------------------------------------------------
\42\For example, the Washington Post recently noted that
profit margins are in ``single digits.'' See Rob Pegoraro
and Dina E1 Boghdady (January 20, 2002), ``Building Creativity
Into the Box'' Washington Post.
\43\In the Microsoft trial numerous industry witnesses
testified to the user confusion and added support costs associated
with having alternative browsers pre-installed on a computer. See
253 F.3d at 71-;72.
\44\Microsoft Press Release (July 11, 2001),
``Microsoft Announces Greater OEM Flexibility for
Windows.''
---------------------------------------------------------------------------
As a result, the key source of greater competition and consumer
choice in the computer experience--;OEMs--;would have
limited economic basis for promoting such choice. In part this is
because the value of some of the new freedoms obtained by the OEMs
in the PFJ are limited
by loopholes. For example, by allowing Microsoft to bar OEMs
from marketing non-Microsoft middleware in the initial boot
sequence, the PFJ removes one source of revenue and choice. In
addition, allowing Microsoft to encourage users to
``voluntarily'' revert to the Microsoft-preferred
configuration of icons, the Desktop, and the Start Menu after 14
days may reduce substantially the value of this screen ``real
estate.'' As a result, the PFJ precludes some of the principal
means by which OEMs could be remunerated for providing additional or
alternative functionality desirable to consumers.
The more fundamental problem is that OEMs continue to be
required to license a version of Windows that includes middleware
like Internet Explorer, Windows Media Player, and Windows Messenger.
By not requiring Microsoft to sell a cheaper, stripped-down version
of the operating system--;excluding many of these added
features--;the PFJ in effect would require OEMs to pay
twice--;once for Microsoft's version of the product (as bundled
into the price of Windows) and once for the alternative. Such
bundling is a particularly invidious way of undermining competition.
In effect, it implies that the marginal cost of any item in the
bundle is zero, making competitive entry, even for a superior
product, impossible. The fact that such entry has occurred is
testimony to the superiority of the rival products--;consumers
are willing to pay substantial amounts for the alternatives. In
addition, forced bundling can have adverse effects on consumers,
because it uses up memory and storage space, and there is always the
possibility that the commingled code will interfere with the
performance of other applications.
In summary, under the PFJ, OEMs are not provided the rights,
means, protections, or incentives to create alternative choices for
consumers. As a result, the lynchpin of the PFJ's strategy for
promoting competition would be greatly attenuated.
B. Reducing the applications barrier to entry
The applications barrier to entry was central to the Court of
Appeals'' understanding of this case. It is the principal
barrier to entry that protects Microsoft's overwhelming dominance of
the market for operating systems for Intel-compatible PCs.
Furthermore, the court found that Microsoft engaged in illegal acts
to increase the applications barrier to entry, principally by
suppressing Netscape and Java at the expense of Internet Explorer
and Microsoft's version of Java. Thus, any remedy that is
``tailored to fit the wrong creating the occasion for the
remedy'' must necessarily take affirmative steps to reduce the
applications barrier to entry and also prevent Microsoft from
engaging in anticompetitive actions to increase this barrier.
Unfortunately, the PFJ barely addresses this central issue.
The following discusses two key aspects of the applications
barrier to entry: the use of anticompetitive means to reduce the
market share of rival middleware (and thus its potential to reduce
the cost of porting applications to different operating systems) and
the use of decisions about Microsoft Office to influence the
prospects of rival operating systems. 1. Middleware and the
applications barrier to entry
The CIS states that under the PFJ, ``OEMs have the
contractual and economic freedom to make decisions about
distributing and supporting non-Microsoft software products that
have the potential to weaken Microsoft's personal computer operating
system monopoly without fear of coercion or retaliation by
Microsoft.''\45\ Even if the PFJ did give OEMs this
contractual and economic freedom without fear of retaliation, and
the previous subsection expressed severe doubts on this point, it
still would do little if anything to weaken Microsoft's operating
system monopoly.
---------------------------------------------------------------------------
\45\CIS, p. 25.
---------------------------------------------------------------------------
Enhancing competition by allowing OEMs and ISVs to provide
consumers with a greater variety of choices, the subject of the
previous subsection, is in some sense literally superficial. It
involves the ability of firms in the computer industry to change the
outer appearance of a computer and the way it is perceived and used
by users, including the ability and ease of accessing programs that
are included with the Windows operating system or added by the OEM
or end user. The issues raised by the applications barrier to entry
go deeper, to the underlying code in Windows. In particular,
although the PFJ allows end users or OEMs to remove user access to
Microsoft Middleware, it also allows Microsoft to leave in place all
of the programming underlying this middleware. This code could still
be accessed by other programs that write to the APIs exposed by the
middleware.
The Court of Appeals explicitly rejected Microsoft's explanation
for commmingling the code of Windows 98 and Internet Explorer,
concluding that it deterred users from installing Netscape, had no
substantive purpose, and thus that ``such commingling has an
anticompetitive effect.''\46\ Despite this strong
finding, no provision in the PFJ addresses this issue.\47\
---------------------------------------------------------------------------
\46\See 253 F.3d at 66.
\47\The Court of Appeals rejected, per curiam,
Microsoft's petition for a reheating on this point. Order (DC Cir.
Aug. 2, 2001).
---------------------------------------------------------------------------
Netscape and Java represented a very rare challenge to
Windows--;they offered the opportunity to develop middleware
that would allow a wide range of applications to be costlessly
transferred between different systems. It is difficult to imagine
when, if ever, there will be a challenge of this magnitude again.
Nonetheless, some existing middleware--;and future middleware
that we may not even be able to forecast today--;will continue
to present challenges to Windows. For example, there is still
substantial competition in the market today for multimedia players,
with Windows Media Player, RealNetworks RealOne player, and Apple's
QuickTime, among others, all offering different versions of similar
functionality.
The treatment of middleware is crucial because the market for
middleware, like the market for operating systems, is subject to
substantial network externalities. These externalities mean that the
desirability of a middleware package increases as the installed user
base increases. As with operating systems, such externalities arise
for direct reasons (e.g., users can share files in a particular
media format) and indirect reasons (writing a program to different
middleware, so the dominant middleware will have the most programs
associated with it). With regard to indirect network effects, the
key point is that the installed base is not the number of computers
with shortcuts to the given middleware, but the number of computers
with the underlying code permitting the middleware to be invoked by
a call from another program. A programmer that wanted to develop,
for example, an interactive TV program could still use Windows Media
Player regardless of whether or not an OEM or end user had removed
the icons or shortcuts that allow easy user access to this program.
By providing no means for OEMs or end users to undo the
commingling of code that ties
[[Page 28388]]
Microsoft middleware to the operating system, the PFJ ensures
that Microsoft middleware will have an installed base, in the
relevant sense, of nearly the entire PC market. As a result,
programmers will find it cheaper to write to Microsoft middleware
rather than to rival programs. In this case, ubiquity could trump
quality--;because the size of a middleware's installed base
could be more important than the quality of the middleware program.
Microsoft middleware thus increases the applications barrier to
entry in the same manner that promoting Internet Explorer and
restricting the distribution of Netscape do. By allowing Microsoft
to continue to commingle the code for middleware and its operating
system, and preventing OEMs or end users from making real choices,
the PFJ contributes to Microsoft's ability to restrict the market
share of its rivals in neighboring ``layers'' to the
operating system, reducing the main form of potential future
competition at ``layer boundaries.''
2. Microsoft Office and the applications barrier to entry
As noted above, in the mid-1990s, Microsoft Windows was
compatible with more than twenty times as many programs as IBM's OS/
2 Warp. This offers a dramatic example of the applications barrier
to entry. One crucial feature of Microsoft is that in addition to
producing the Windows operating system, it is also a leader in many
other applications. Network externalities work here to help create
and maintain market dominance. Thus, for a rival operating system to
succeed it would need not only to persuade ``neutral''
software companies to write to it, but also persuade Microsoft
itself to port some of its leading applications to the operating
system. To the degree that Microsoft produces leading or essential
applications, they can use their refusal to port these applications
to reinforce their Windows monopoly.
One application, in particular, is especially important to
users: Microsoft Office and its associated programs, including Word
(for word processing), Outlook (for e-mail and scheduling), Excel
(for spreadsheets), and PowerPoint (for presentations). Indeed,
Microsoft Office has about 95 percent of the market for business
productivity suites. 48
The Court of Appeals affirmed the District Court's finding that
the desire by Apple to ensure that Microsoft continued to maintain
and update Mac Office was central to its motivation to enter into an
illegal, anticompetitive deal with Microsoft to suppress Netscape
and promote Internet Explorer. In addition, Microsoft does not
currently have a version of Office that operates on Linux, the
primary alternative to Windows in the PC operating system market.
Withholding or simply threatening to withhold Microsoft Office from
other operating systems is 48 Richard Poynder (October 1, 2001).
``The Open Source Movement.'' Information Today, 9:18. a
powerful way in which Microsoft can use anticompetitive means to
reduce the desirability of rivals while also extracting concessions
or exchanges that help support the Windows monopoly of PC operating
systems.
The PFJ, however, does not address any issues relating to the
pricing, distribution, or porting of Microsoft Office. This
considerable loophole has been used by Microsoft in the past. In the
future, Microsoft will have the same incentives to use this loophole
again. In addition, it may be necessary to examine additional
Microsoft applications that can be used to reinforce the Windows
monopoly. Given the difficulty of undoing a monopoly of this sort,
once established, it is particularly appropriate to reach beyond
remedies that are narrowly circumscribed.
C. Preventing Microsoft from strengthening its operating system
monopoly by extending it to encompass additional products
The Court is charged with fashioning a remedy that
``ensure[s] that there remain no practices likely to result in
monopolization in the future.'' Some of the most important
newly emerging areas are multimedia, networking, web services, and
hand-held computing. Microsoft is already making substantial
investments in these areas with its .NET strategy, Microsoft
Passport, MSN, Windows Messenger, Windows Media Player, and the
Pocket PC operating system.
The recently released Windows XP is characterized by substantial
integration between all of these features; indeed the seamless
integration is one of Microsoft's chief selling points for Windows
XP. Microsoft has marketed Windows XP (standing for
``experience'') on the basis of its seamless integration
between the Internet, multimedia, and the computer. For example, on
the day it was released, a Microsoft press release announced,
``Windows XP Home Edition is designed for individuals or
families and includes experiences for digital photos, music and
video, home networking, and communications.''\49\
---------------------------------------------------------------------------
\49\Microsoft Press Release, ``Windows XP is
Here!'' 10/15/01.
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Like Internet Explorer, these new areas present new
opportunities for Microsoft to leverage its monopoly in the
operating system to dominate other markets. In addition, Microsoft
could use its strong or dominant position in these new markets to
erect new barriers to entry that prevent potential competitors from
offering products and services with part or all of the functionality
provided by Windows. For example, if Passport is successful then a
rival operating system would not just need to persuade other
developers to write for it, but would also need to develop its own
version of Passport and convince numerous e-commerce sites to use
it. If the rival operating system failed in any of these steps, its
attempts to establish itself could be seriously curtailed. The PFJ,
however, does not address any aspects of these important emerging
barriers to entry.
VIII. STEPS TO IMPROVE THE PROPOSED FINAL JUDGMENT: THE
LITIGATING STATES'' ALTERNATIVE
The goal of this Declaration is to explain why we believe that
the PFJ is deficient and why the Court should exercise its
discretion to fashion a remedy in this case that would promote
competition and benefit consumers. We do not propose an alternative
remedy or provide an exhaustive analysis of any other proposals. Our
analysis of the shortcomings of the PFJ, however, can be illustrated
and strengthened by a selective comparison of some of the provisions
in the PFJ with the proposal transmitted to the court by the nine
litigating States and the District of Columbia on December 7,
2001.\50\
---------------------------------------------------------------------------
\50\United States v. Microsoft Corp., ``Plaintiff
Litigating States'' Remedial Proposals,'' in the U.S.
District Court for D.C, December 7, 2001.
---------------------------------------------------------------------------
Many of the issues in the ``Plaintiff Litigating
States'' Remedial Proposals'' are technical and involve
loopholes, some of which were discussed above including stronger
anti-retaliation provisions and a broader definition of middleware
that could not be manipulated by Microsoft. In addition, this
proposed remedy makes an important change in enforcement: it
proposes a Special Master, rather than requiring new legal
proceedings to enforce the judgment. None of these important issues
are discussed here. Instead, we focus on selected areas in which the
litigating States'' proposal illustrates some of the principal
economic points identified in the preceding analysis.
A. Fostering competition through OEMs and reducing the
applications barrier to entry
The litigating States proposal would require Microsoft to
license a cheaper version of Windows that does not include
commingled code from added middleware.\51\ In addition, the
proposal would require Microsoft to continue to license older
versions of its operating system without raising its prices. This
would have two effects. First, it would more effectively promote
competition and consumer choice by allowing OEMs to ship computers
with a wide range of alternative middleware, thereby allowing
consumers to choose between different versions or
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\51\The Court of Appeals overturned the District Court,
finding that Microsoft could not be held liable for the fact that in
certain situations, like updating Windows or accessing help files,
Internet Explorer overrides the user's default browser settings and
opens automatically. This implies that the complete removal of HTML-
reading software is impossible. But Windows could be shipped with,
for example, a stripped-down browser that performs essential system
functions. Most of the functionality of Internet Explorer, however,
is not necessary for the examples Microsoft invoked. This is
analogous to the way in which Windows is shipped with a stripped-
down text editor, Notepad, but not with a full-fledged word
processor. different price-feature combinations. The lack of
financial incentives for OEMs to take advantage of the more
liberalized licensing rules is one of the principal deficiencies in
the PFJ.
---------------------------------------------------------------------------
Moreover, such a provision would provide Microsoft with better
incentives; only if it produced an operating system which performed
substantially better would it be able to sell its new releases. It
would at least attenuate its ability to use new releases as a way of
extending its market power. Some have advocated even stronger
measures to ensure Microsoft faces pro- consumer, pro-competition
incentives, including requiring Microsoft to release all of its
Windows source code and requiring the free distribution of its
operating system after 3 to 5 years. Second, this provision would
directly address the Court of Appeals finding that Microsoft's
commingling of code was anticompetitive. By
[[Page 28389]]
disentangling the middleware from the operating system, this
proposal would allow greater competition in middleware--;and
thus ultimately in operating systems--;by reducing the network
externalities that benefit Microsoft middleware at the expense of
potentially superior products.
B. Internet Explorer browser open source and Java distribution
Two of the fruits of Microsoft's monopolization of the operating
systems market are the dominance of the Internet Explorer browser
and the destruction of Java as a viable competitor.
The anticompetitive measures that helped achieve these goals
protected a crucial ``chink in the armor'' of the Windows
operating system. The PFJ does nothing to ``deny the defendant
the fruits of its statutory violation.''\52\
Furthermore, it does not enhance the ability of competitors to
interoperate with Internet Explorer because it includes no
disclosure requirement for the Internet Explorer APIs.
---------------------------------------------------------------------------
\52\253 F.3d at 103, quoting United States v. United Shoe
Mach. Corp., 391 U.S. 244, 250 (1968).
---------------------------------------------------------------------------
The litigating States propose to remedy these deficiencies by
requiring Microsoft to publish the source code and APIs for Internet
Explorer and freely license them to competitors. In addition, their
proposal would require Microsoft to distribute a Sun-compatible
version of Java Virtual Machine with all future operating systems.
The result would be to decrease the applications barrier to entry
and promote competition.
C. Cross-platform porting of Office
As discussed in the previous section, Microsoft Office is one of
the most crucial applications for many users. The existence of this
application for a particular operating system is one key factor in
the demand for the operating system. The litigating States''
proposal would remove the ability of Microsoft to either threaten to
withhold Office or actually withhold Office by requiring Microsoft
to continue to port Office to Macintosh. In addition, the proposal
would require Microsoft to auction off licenses to ISVs that would
provide them with the entire source code and documentation for
Office in order for them to port the product to alternative
operating systems. Although we draw no conclusions about the
particular rules proposed by the litigating States, this proposal
would clearly reduce Microsoft's ability to deliberately raise the
applications barrier to entry.
D. Mandatory disclosure to ensure interoperability
The PFJ requires some disclosure to ensure that Microsoft is not
able to withhold certain information to illegally benefit Microsoft
Middleware at the expense of Non-Microsoft Middleware. The
disclosures are limited in scope and timing. The litigating
States'' proposal is substantially broader.
Of particular importance, the litigating States'' proposal
recognizes that ``nascent threats to Microsoft's monopoly
operating system currently exist beyond the middleware platform
resident on the same computer'' and thus the States''
proposal requires timely disclosure of technical information to
facilitate ``interoperability with respect to other
technologies that could provide a significant competitive platform,
including network servers, web servers, and hand- held
devices.''\53\ In doing this, the proposal would reduce
the ability of Microsoft to use its dominant position in operating
systems to eliminate emerging threats at the boundary of this
``layer'' of computing.
---------------------------------------------------------------------------
\53\Litigating States, pp. 10-;11.
---------------------------------------------------------------------------
IX. CONCLUSION
The Revised Proposed Final Judgment agreed to by the U.S.
Department of Justice, the Attorneys General of nine States, and
Microsoft Corporation is critically deficient. The overall aims of
the PFJ are laudable--;to increase competition and reduce
Microsoft's ability to maintain its monopoly at the expense of
consumers. But the PFJ will not succeed in achieving these goals. It
does not change any of the incentives faced by Microsoft to
undertake anticompetitive actions. It restrains these
anticompetitive actions only with highly specific and exception-
ridden conduct requirements. And it has an insufficient enforcement
mechanism.
The interest of consumers in a greater range of choices, lower
prices, and greater innovation would be served by rejecting the PFJ
and replacing it with a more effective conduct remedy. A remedy for
this case should recognize that the monopoly power created by
Microsoft's past anticompetitive, illegal practices is likely to
persist, and that it will therefore be likely to continue to enjoy
the fruits of its illegal behavior, unless there are far stronger
remedies than those in the PFJ. The new remedy should change
Microsoft's incentives. It should restrict Microsoft's ability to
repeat its past, or develop new, anticompetitive practices. It
should provide OEMs and ISVs with the means and incentives to
stimulate genuine competition in the provision of platforms. And it
should take whatever steps are possible to reduce the applications
barrier to entry so that there is greater scope for genuine
competition in the market for PC operating systems.
I, Joseph E. Stiglitz, declare under penalty of perjury that the
foregoing declaration is true and correct. Executed on January 28,
2002.
E. Stiglitz
I, Jason Furman, declare under penalty of perjury that the
foregoing declaration is true and correct. Executed on January 28,
2002.
Jason Furman
Joseph E. Stiglitz
Columbia University
Uris Hall Room 814
New York, NY 10027
212-;854-;0671
[email protected]
Jason Furman
Yale University
28 Hillhouse Ave. Rm 311
New Haven, CT 06511
203-;432-;3054
[email protected]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No.
98-;1232 (CKK) MICROSOFT CORPORATION, Defendant. ) ) )
STATE OF NEW YORK, et al., ) ) Plaintiffs, v. Civil Action No.
98-;1233 (CKK) MICROSOFT CORPORATION, ) Defendant. ) )
DECLARATION OF EDWARD ROEDER
Edward Roeder declares under penalty of perjury as follows:
I. INTRODUCTION
1. I am a Washington journalist, author, lecturer, and editor,
expert on the U.S. Congress, elections and efforts to influence the
U.S. government. My byline has appeared in most major U.S.
newspapers, many top magazines, and on all major wires and networks.
I have written, edited, produced and reported on money in politics,
Congressional ethics and the American political economy for more
than three decades. My experience includes work as a Senate
subcommittee counsel, House select committee chief investigator,
United Press International editor, publisher, White House
speechwriter, government aide at level GS-15, freelance reporter and
publisher. I founded Sunshine Press Services, Inc., a Washington
news service and publishing house specializing in ``Casting
Light on Money and Politics.'' Sunshine has developed
References to Use,
Not Just Peruse TM, computer-based reference works on U.S.
politics. As National Political/Finance
Editor for United Press International, I produced the nation's
first weekly state-by-state computer- generated reports on federal
election financing. In 1974, I became the first freelance
correspondent fully accredited to U.S. House & Senate Press
Galleries. As a freelance print and broadcast reporter, I
specialized in covering elections and election financing. In Roeder
v. FEC, I successfully sued Federal Election Commission under the
federal Freedom of Information Act, forcing a reduction in fees for
records and release of computerized data.
My experience includes lecturing about covering influences on
government at the graduate schools of journalism at Columbia,
Northwestern (Medill), American, Maryland and other universities,
and at the Hastings Center, the Heritage Foundation, and many other
forums, and testifying before U.S. House and Senate committees. I
also taught a public affairs course, Shadow Government in the
Sunshine State, for three terms at Florida State University. I have
appeared on ABC's Nightline, the CBS Evening News, World News
Tonight (ABC), NBC Nightly News, All Things Considered (NPR), John
McLaughlin, and many other broadcast outlets.
My reference publications include PACs Americana, the 1,150-page
authoritative reference on political action committees and their
interests, Congress On Disk TM, the pioneer diskette publication on
politics, PAC-Track TM, covering all transactions by political
action committees and party committees, FatCat-Track TM, covering
``soft money'' and all contributions of $200-and-up from
individuals to any federal party, campaign or PAC, and Ready Money
Reports TM, comparing relative financial standings of each federal
campaign. A partial list of news clients is attached as Appendix B.
[[Page 28390]]
2. I was commissioned by the Computer & Communications
Industry Association to conduct a review of publicly available
documents, news reports, and commentary regarding Microsoft's
lobbying and political contributions since the United States
Department of Justice and 19 States filed suit against Microsoft in
1998.\1\
---------------------------------------------------------------------------
\1\I am aware that Microsoft has undertaken an effort to
use the Court discovery process to build a political case against
its competitors. The relevancy of Microsoft's strategy will have to
be determined by the Court since Microsoft--;and not its
competitors--;have been found to be liable under the antitrust
laws. I took input and advice from a broad range of sources in
conducting this research, including CCIA and its members. This
research is nonetheless based on the extraordinary public record of
Microsoft's political activities during the timeframe of this case.
I have also undertaken extensive original review of the records of
the Federal Election Commission regarding election finance. These
records covering all election cycles since 1970-;80 have been
available in computerized format since the court-ordered settlement
of Roeder v. FEC, a Freedom of Information lawsuit I filed in this
very courthouse two decades ago.
---------------------------------------------------------------------------
3. My review of the available documents has led me to conclude
that over the past five years Microsoft has engaged in a
``pattern and practice'' of political influence peddling
in many ways unprecedented in modem political history. \2\ What
makes Microsoft's lobbying efforts so unique is not necessarily the
size (i.e. level of political contributions) but the scope of its
efforts and the speed at which Microsoft went from having almost no
political presence in Washington DC to having one of the largest and
most sophisticated political operations in history.
---------------------------------------------------------------------------
\2\``Microsoft Targets Funding for Antitrust
Office.'' Dan Morgan and Juliet Eilperin. Washington Post
October 15, 1999. ``Pro-Microsoft lobbying to limit antitrust
funding irks top lawmakers.''
---------------------------------------------------------------------------
4. By ``scope'' I am referring to the breadth of
Microsoft's efforts. Microsoft has not merely established one of the
largest Political Action Committees, or leapt to the top of the
corporate contributor list in ``soft money,'' unregulated
corporate contributions. Over the past five years Microsoft has also
assembled a large lobbying office and retained dozens of high-
powered consultants; Microsoft has created numerous
``front'' groups and has contributed heavily to a variety
of think tanks and other organizations willing to espouse
Microsoft's view of antitrust policy and this case; and Microsoft
has created a variety of grassroots capabilities that appear to be
directed at state-level government.
5. Two key factors indicate that Microsoft's lobbying efforts
were designed and directed to try to minimize the impact of its
lawsuit and try to achieve a result in the political process that it
is Wall Street Journal October 15, 1999. ``Microsoft Paid For
Ads Against DoJ Case.'' Madeleine Acey. TechWeb September 20,
1999. ``Microsoft Paid For Ads Backing Its Trial
Position.'' David Bank. The Wall Street Journal September 20,
1999. ``Microsoft Paid For Ads Backing It In Trial.''
Seattle Times September 19, 1999. ``Pro-Microsoft Ads Were
Funded by Software Giant.'' Greg Miller. Los Angeles Times
September 18, 1999. ``Microsoft Paid for Ads About
Trial.''
Associated Press September 18, 1999. ``Microsoft Covered
Cost of Ads Backing It in Antitrust Suit.'' Joel Brinkley. New
York Times September 18, 1999. ``Rivals fear Microsoft will cut
a deal.'' John Hendren. The Seattle Times June 21, 2001.
``Bush's Warning: Don't Assume Favors Are Due.'' Gerald F.
Seib The Wall Street Journal January 17, 2001. ``Bounty
Payments are offered for pro- Microsoft letters and calls.''
The Wall Street Journal October 20, 2000. ``Microsoft is Source
of `Soft Money'' Funds Behind Ads in Michigan's
Senate Race.'' John R. Wilke. The Wall Street Journal October
16, 2000. ``Microsoft leans creatively on levers of political
power as breakup decision looms, `stealth'' lobbying
efforts aim for survival.'' Jim Drinkard and Owen Ulmann.
USA Today May 30, 2000. ``Microsoft's All-Out
Counterattack.'' Dan Carney, Amy Borrus and Jay Greene.
BusinessWeek May 15, 2000. ``Aggressiveness: It's Part of Their
DNA.'' Jay Greene, Peter Burrows and Jim Kerstetter.
BusinessWeek May 15, 2000. ``The Unseemly Campaign of
Microsoft.'' Mike France. Business Week April 24, 2000.
``Microsoft's Lobbying Abuses.'' Editorial. New York Times
November 1, 1999 ``Awaiting Verdict, Microsoft Starts Lobbying
Campaign.'' Joel Brinkley. New York Times November 1, 1999.
``Microsoft Seeks Help Of Holders.'' John R. Wilke. The
Wall Street Journal November 1, 1999. ``Microsoft's Bad
Lobbying.''
Editorial. Washington Post October 24, 1999. ``Microsoft
Attempt To Cut Justice Funding Draws Fire.'' David Lawsky.
Reuters October 17, 1999. ``Microsoft Targets Funding for
Antitrust Office.'' Dan Morgan and Juliet Eilperin. Washington
Post October 15, 1999. ``Pro-Microsoft lobbying to limit
antitrust funding irks top lawmakers.'' The Wall Street Journal
October 15, 1999.
``Microsoft Paid For Ads Against DoJ Case.'' Madeleine
Acey. TechWeb September 20, 1999. ``Microsoft Paid For Ads
Backing Its Trial Position.'' David Bank. The Wall Street
Journal September 20, 1999. ``Microsoft Paid For Ads Backing It
In Trial.'' Seattle Times September 19, 1999. ``Pro-
Microsoft Ads Were Funded by Software Giant.'' Greg Miller. Los
Angeles Times September 18, 1999. ``Microsoft Paid for Ads
About Trial.'' Associated Press September 18, 1999.
``Microsoft Covered Cost of Ads Backing It in Antitrust
Suit.'' Joel Brinkley. New York Times September 18, 1999.
apparent it could not achieve in the legal process. First,
Microsoft's efforts are new. Their onset coincides with the time the
government sued Microsoft and they have continued and escalated ever
since. Second, Microsoft's efforts are completely out of proportion
to the rest of the high- technology industry. There is not one other
example of a software, computer hardware, or Internet firm that
comes anywhere near Microsoft's level of campaign contributions.
6. I am not a lawyer, an expert on antitrust or an expert on the
Tunney Act. My substantive views of of the Proposed Final Judgment
are based primarily on the analysis of Nobel economist Joseph
Stiglitz, whose declaration also supports the CCIA submission.
7. The Tunney Act was enacted after the ITT scandal during the
Watergate affair. As the court is aware, Watergate spurred a number
of political reforms requiring ``sunshine'' on the
political activities of special interests, in particular. But the
Tunney Act was also enacted during a different political era, when
political influence peddling was far less sophisticated than it has
become after a quarter-century of efforts to circumvent the
``reforms'' of the 1970s. By necessity, political
influence peddling is no longer necessarily marked by a single
``transaction'' or a single ``meeting,''
or even an overt ``quid pro quo.'' In fact, one of the
effects of the modem reforms has been to legalize many
activities--;especially the transfer of funds from corporate to
political coffers--;that had long been illegal under laws in
effect since 1907 or 1934. Lobbying today is marked by
incrementalism, where there may not be any single meeting, or any
single contribution, or any single agreement. Rather, over time,
what may develop is an ``understanding'' of the respective
parties'' interests, objectives, and desired outcomes. Instead
of corruptly influencing politicians to buy a discreet government
decision, the money exerts far broader influence over appointments,
policy frameworks or positions, and ultimately, decisions. Much of
it may be legal, but it's far more corrupting than simple bribery.
The simple matter of paying off a corrupt politician to obtain a
favorable government decision is certainly offensive and unfair to
the voters and those who are disadvantaged by the decision. Yet such
petty or grand corruption, if isolated, does not seriously threaten
the American system. What Microsoft has accomplished over the past
half decade, however, presents a far darker prospect.
By pouring money into America's institutions of political
pluralism, rewarding those organizations and individuals that do its
bidding and denying or limiting funding to its opponents, Microsoft
has in some ways corrupted American political discourse itself.
Newspapers that have run an editorial or opinion article sympathetic
to a Microsoft position, reporters who have interviewed a professor,
politician, or pundit about this antitrust action, and anyone who
has hosted or observed public discourse on the subject must now
wonder: Were the views expressed independent and sincere, or were
they purchased by an unseen hand, smothering the American
marketplace of ideas? As is detailed below, Microsoft's efforts to
subvert democratic institutions such as political campaigns and
debates, party organizations, news outlets, think tanks and
government offices have been so vast as to be a new phenomenon,
unenvisioned and unaddressed by existing political mechanisms
intended to check the influence of special interests. Limited
campaign contributions can serve the purpose of encouraging,
facilitating, extending and opening political discussion.
But political money in such vast amounts is a substitute for
politics, not a means of undertaking political action.
While the modem-day political pressure brought to bear by
Microsoft in the last decade may not be precisely the same as that
undertaken by ITT in the 70's, it is no less objectionable to the
Court's charge of acting on behalf of the ``public
interest.''
[[Page 28391]]
8. Based on my review of the public record and the declaration
provided by Dr. Stiglitz, it is apparent that the Department of
Justice undertook a major ``change in policy'' at a
critical moment this past fall. My belief--;again based largely
on Dr. Stiglitz'' analysis and substantiated by a wide array of
antitrust experts and scholars--;is that the Proposed Final
Judgment cannot be reconciled with the government's extensive court
victory. The public record suggests a Microsoft strategy that
appears to defeats in the legal process, but which focuses on
winning an acceptable outcome through the political process. It
appears to be working. Indeed, if it weren't working, such vast
expenditures might give rise to a shareholder suit for breach of
fiduciary duty. If Microsoft's money has had the desired effect of
inducing the U.S. government to throw in the towel on the biggest
antitrust suit in history, such a suit could be easily defended. But
to argue that Microsoft had no such intent is tantamount to
suggesting that its corporate spending it in the control of
squandering fools.
9. I have also reviewed Microsoft's lobbying disclosures filed
before the court as part of the Tunney Act. Again, while I am not a
lawyer, my review of public documents, press reports and the plain
language of the statute leads me to believe that disclosures made to
the court can not possibly be reconciled with Microsoft's lobbying
activities surrounding both this case and this settlement.
10. Various press reports indicate that Microsoft is trying to
convince the court and the public that the litigating states have
been ``put up to this'' (i.e. continuing to litigate
through the remedy phase) by Microsoft's competitors, and therefore
cannot be acting in the public interest. My review of public
documents suggests this theory is backwards and should be
particularly alarming to the Court. The far more likely scenario,
into which the Court must inquire, is whether the Department of
Justice has executed Administration policy in response to the
unprecedented campaign to influence the new Administration's
antitrust policy generally, and as antitrust policy applies to the
high-technology sector and Microsoft, in particular.
11. In fact, with the benefit of hindsight, various Justice
Department actions make perfect sense in the context of my research.
The Department went to great lengths to create the appearance they
were going to be ``tough'' with Microsoft, beginning with
enlisting President Bush's renowned litigator, Phillip Beck. What
actually occurred, however, is they systematically appear to have
given away their hard-fought court victory. First, the Department
unilaterally abandoned its pursuit of structural relief, and
informed the court it would not seek a review of the Sherman Act
Section tying claim on remand. Then the Department suggested it
would base its remedy on the interim conduct remedies ordered by
Judge Jackson. Then the Department began speaking of the extensive
litigation risk involved in pursuing a remedy based on the need for
immediate relief. Finally, the Department--;outside of public
scrutiny--;emerges with the Proposed Final Judgment, which based
on Dr. Stiglitz'' analysis appears to be woefully inadequate.
12. I declare to the court that where ``there is smoke
there is typically fire.'' Even if the ``fire'' in
the context of modem day political influence peddling is very
subtle, it nonetheless does not serve the public interest. My view
is that Microsoft's political campaign has been so extensive the
court should take immediate notice. In modem political influence-
peddling and purchasing, Microsoft has set a new bar. South Korea's
spreading cash throughout Washington in the 1970s Tongsun Park
scandal paled in comparison.
13. During the course of my research I was struck by the
similarities between Microsoft and the current scandal involving
Enron Corporation. While Enron, of course, is in an entirely
different business, it seems the core issue--;from a public
disclosure perspective--;is its campaign contributions and its
ability to influence the nation's energy policy. Microsoft's
campaign contributions significantly surpassed those of Enron;
Microsoft was a defendant in a major governmental lawsuit; and it
appears Microsoft may have successfully influenced the
Administration's antitrust policy, with major implications for legal
antitrust precedent.
14. My recommendation to the court is to undertake an immediate
review of Microsoft's lobbying activities surrounding this
settlement, with particular attention to meetings with the Justice
Department or the White House by Microsoft or its agents. Included
in this review should also be contacts made on Microsoft's behalf to
the Justice Department or the White House by Members of Congress,
their official staff, and campaign staff. The court should also
interview Department of Justice staff who do not operate within the
sphere of political appointees. And the court should interview the
political appointees of the Attorney General and their staff.
Moreover, the court should review any contacts or communications
between the Republican National Committee, the National Republican
Senatorial Committee, the Republican Congressional Campaign
Committee, and the White House or the Justice Department. Lastly,
the court should review any contacts or communications between
Microsoft and the settling states. Anything less would clearly not
vindicate the public interest.
II. REVIEW OF PUBLIC RECORD
15. Since May 1998, Microsoft has fought strenuously in the
courtroom to defend its ``freedom to innovate'' and to
continue with business as usual. In fact, plugging in
``Microsoft + trial'' into the Google search engine
produces more than 697,000 article hits. When ``Microsoft +
politics'' is entered into the search engine, Google produced
nearly 448,000 articles and links. But as hard as it fought inside
the courtroom, Microsoft fought far harder--;often
secretly--;outside the courtroom to influence the outcome of the
trial. In a campaign unprecedented in its size, scope, and cost,
Microsoft used campaign contributions, phony front groups, intensive
lobbying, biased polling, and other creative, if not possibly
unethical, pressure and public relations tactics to escape from the
trial with its monopoly intact. According to media accounts,
experts, and my own research, Microsoft spent tens of millions of
dollars to attempt to create an aura outside the courtroom of what
it could not prove inside--;innocence. According to Business
Week Magazine: ``Even seasoned Washington hands say they have
never seen anything quite as flamboyant as the Microsoft
effort.''\3\
---------------------------------------------------------------------------
\3\BusinessWeek, May 15, 2000, Carney
---------------------------------------------------------------------------
16. In late 2001, when the Department of Justice and a group of
state Attorneys General agreed to the currently proposed settlement,
it appeared as if Microsoft's efforts were successful. Fortunately,
two obstacles stand in the way of Microsoft and the continued
monopolization of the software industry: the remaining state
Attorneys General who are continuing to litigate for a more
effective remedy and the Tunney Act, which--;among other
things--;requires Microsoft to divulge all of its dealings with
the Administration and Congress in conjunction with the antitrust
trial. A. Campaign Contributions
17. In 1995, before the United States Department of Justice and
state Attorneys General from 19 states and the District of Columbia
brought an antitrust case against it, Microsoft had virtually no
presence in Washington, DC The company had only one lobbyist working
out of a Chevy Chase, Maryland sales office and had contributed less
than $50,000 in the previous election cycle.\4\ Its lobbyist,
Jack Krumholtz, had no secretary and its PAC was financed by only
$16,000. In those days, the Microsoft lobbying operation was
affectionately referred to in press reports as ``Jack and his
Jeep.''
---------------------------------------------------------------------------
\4\``The Microsoft Playbook'' Common Cause
---------------------------------------------------------------------------
18. However, since the beginning of the antitrust case against
Microsoft, the company has become a major political contributor and
was the fifth largest during the 2000 election cycle\5\,
alongside the giants of the tobacco, telecommunications,
pharmaceuticals and insurance industries. Microsoft's political
contributions to elected leaders in a position to help the software
giant in this election cycle when the trial was at its peak, was
greater than all previous, cumulative campaign contributions. In the
history of American PACs, only three companies that have raised at
least $50K in one election cycle have increased receipts by 500% in
the next. In 1984-;86, Drexel Burnham Lambert, the corrupt and
now-defunct securities brokerage, increased its receipts from just
under $67,000 to more than $446,000, a 567% jump. In that same
cycle, AT&T, facing antitrust divestiture, increased its PAC
receipts by 745%, from $215,000 to $1.8 million. In the history of
corporate PACs, only 68 have increased their spending by half in one
election cycle after reaching a level of a quarter of a million
dollars. Only 15 have doubled their spending in one election cycle
after reaching that level. Only one--;Microsoft--;has
approached tripling its spending after reaching that threshold.
Microsoft increased its spending almost fivefold, from $267,000 to
more than $1.2 million, between the 1997-;98 and
1999-;2000 election cycles. (Table 5.)
---------------------------------------------------------------------------
\5\San Francisco Chronicle, July 1, 2001, Wildermuth
---------------------------------------------------------------------------
20. Every year, Microsoft tops itself. The company's political
giving in the 2000
[[Page 28392]]
cycle--;the time leading up to its day of judgment in federal
court--;was again more than it contributed in all previous
cycles combined. Campaign money to candidates and political parties
in just one state was greater than Microsoft's contributions from
1990 through 1996 to every state and federal candidate combined.
(Note that the government first levied antitrust charges against
Microsoft in 1995.)
Except for Microsoft, no corporate PAC sponsor in American
history has increased its PAC receipts by an order of magnitude,
starting from a base of $50,000 or more. Since 1986, the only such
firm that has increased its PAC receipts by as much as 500% in one
election cycle is Microsoft. Receipts for Microsoft's PAC rose a
record-setting 903%, froth $59,790 in 1995-;96 to just under
$600,000 in 1997-;98. (Table 1.) Microsoft followed this by
another jump of 165% in 1999-;2000, to $1.59 million. (Table
2.) In the history of corporate PACs, only 15 have had as much as a
300% rise in receipts after achieving a base of $50,000. (That
requires rising from at least $50,000 to at least $200,000.) None
has ever followed such a rise with another three-digit percentage
increase in receipts, except Microsoft. (That would require a
subsequent rise to at least $400,000.) 21. Between 1995 and 2000,
Microsoft donated more than $3.5 million to federal candidates and
to the national parties, about two-thirds of which was contributed
during the 2000 election cycle alone.\6\ Including company and
employee donations to political parties, candidates and PACs in the
2000 election cycle, Microsoft's giving (that of the company, its
PAC and its employees) amounted to more than $6.1 million, far more
than has been previously reported.\7\ Nearly $1 million came
in the 40 days immediately before the November 7th election. As most
political operatives know, these late contributions often are made
by donors who don't want their participation known until after the
election, when financial reports for the final days of a campaign
are due, and public and news media attention are no longer focused
upon the election. The effect of delaying contributions until very
near the election is to thwart efforts by the news media and the
political opposition to make disclosures meaningful to voters before
they vote.
---------------------------------------------------------------------------
\6\Common Cause
\7\Independent analysis of giving to elective office
---------------------------------------------------------------------------
i. Federal Contributions
(a) ``Soft'' Money
22. Comprising the majority of Microsoft's campaign
contributions was soft money.\8\ Like their overall presence in
Washington, Microsoft's soft money donations grew substantially
since the beginning of the antitrust trial. In fact, in the seven
days preceding Judge Thomas Penfield Jackson's ruling against
Microsoft, the company donated more in soft money to the national
political parties than it gave to federal candidates and political
parties between 1989 and 1996. 23. During the 1999-;2000
election cycle, Microsoft and its executives accounted for some
$2,298,551 in ``soft money'' contributions, according to
FEC records. For context, consider that this was two-thirds more
than the $1,546,055 in soft money contributed by the now-bankrupt
Enron and its executives during the same period. candidates and
political parties and PACs federally and in all 50 states.
---------------------------------------------------------------------------
\8\``Soft'' money is the term generally applied
to unregulated, unlimited corporate and individual contributions
that can not go to candidates but typically goes to political
parties in support of party ``efforts.''
---------------------------------------------------------------------------
As one business commentator put it: ``...there's something
quite disturbing about watching the world's richest man trying to
buy his way out of trouble with Uncle Sam... Gates's actions
undermine the legal system itself.''\9\
(b) Political Action Committee (PAC) Money
24. Microsoft's PAC donations also grew substantially in the
years since the beginning of the antitrust trial. In 1998, the
company made a concerted effort to increase the size of its PAC.
Within a matter of days, the company grew its PAC from $31,000
to $326,000.\10\ Employees contributed $1.6 million to
Microsoft's PAC for the 2000 election cycle which allowed the PAC to
contribute more than $1.2 million. The PAC began the 2002 election
cycle with an impressive $772,000 cash-on-hand--;more than any
other American corporate PAC.
Microsoft's unprecedented rise as a political player took its
PAC from just under $60,000 in 1995- 96 receipts to just under $1.6
million in 1999-;2000. In the history of corporate PACs, only
two have had a rise of more than 1,000% in receipts over four years
(two election cycles), after attaining $50,000. Only one, Microsoft,
has had an increase of more than 2,000%. From 1995-;96 through
1999-;2000, Microsoft's PAC increased in size by more than
2,500%. (Table 4.)
---------------------------------------------------------------------------
\9\BusinessWeek, April 24, 2000, France
\10\ibid.
---------------------------------------------------------------------------
(c) Party Breakdown
25. While Microsoft has donated to both national political
parties, the company has tended to favor Republicans, who have been
more vocal in their defense of the company. Between 1995 and 1998,
72% of Microsoft's contributions went to Republicans, while the GOP
received only 55% of the company's donations during the 2000
election cycle.\11\ Republicans received a total of $3.2
million, about half of which--;$1.69 million--;went to the
national Republican Party. 26. Yet, when analyzing Microsoft's
campaign contributions by donating entity, some stark disparities
emerge. Virtually all of the money donated by individual Microsoft
employees ($222,750) benefited Democratic 527s, groups that raise
and spend money independent of political campaigns During this same
period Microsoft employees gave $15,000 to Republican affiliated
527s. Democratic PACs also benefited from Microsoft's employees
largesse, receiving $222,100 compared to just $42,875 for Republican
PACs.
27. But Republicans enjoyed an edge in every other category; the
majority of donations to leadership PACs, state parties and
candidates went to the Republican Party. The following table
illustrates the disparity.
Republican Democrat
Leadership PACs $162,000 $41,500
State Parties $255,025 $38,887
Candidates $1,053,792 $818,951
(ii) State Contributions
28. Along with the Department of Justice, 19 states and the
District of Columbia initially prosecuted Microsoft. Naturally,
then, Microsoft concentrated a good deal of its campaign
contributions on state races.
---------------------------------------------------------------------------
\11\ibid.
---------------------------------------------------------------------------
29. Candidates and political parties in all 50 states received
contributions from Microsoft, but none more so than the company's
home state of Washington, which received $830,478. Republicans
received $359,000 while $458,000 went to Democrats. Nearly all of
the $100,000 edge for the Democrats came from contributions to the
State Democratic Party, which totaled $85,387. 30. One of the
original states participating in the suit was South Carolina, whose
attorney general, Charles Condon, was facing re-election in 1998.
Shortly before the election, Microsoft contributed $25,000 to the
South Carolina Republican Party. According to the Chairman of the
South Carolina Republican Party this was the largest unsolicited
donation ever received. Three weeks after he won, Attorney General
Condon withdrew from the antitrust case. Two years ago, Condon
solicited and received a $3,500 donation from Microsoft.\12\
---------------------------------------------------------------------------
\12\USA Today, 5-;30-;00, Ullman, Drinkard
---------------------------------------------------------------------------
31. In California, a state represented by Attorney General Bill
Lockyer, Microsoft contributed $25,000 to the 1998 election campaign
for challenger Dave Stirling, a Republican; a contribution made nine
days before election day. The company contributed an additional
$10,000 to gubernatorial democratic candidate Gray Davis, whose
opponent was among the original 19 state attorneys general to bring
the antitrust suit against Microsoft.
32. Within weeks of the 2000 election, Microsoft CEO Steve
Ballmer made late contributions of $50,000 each to two state
Republican Parties, Michigan and Washington, where Microsoft found
its defenders under fire. Then U.S. Senator Spencer Abraham, a
Michigan Republican who is now Secretary of Energy, had been an
outspoken supporter of Microsoft. Former U.S. Senator Slade Gorton,
a Washington state Republican, who proudly called himself ``the
Senator from Microsoft'' had even sought to cut the funding of
the Justice Department's Antitrust Division while the court case was
ongoing.
33. Microsoft used back channels to direct even more undisclosed
soft money into the 2000 Michigan Senate race. According to The Wall
Street Journal, Microsoft ``funneled'' soft money into the
race by secretly making undisclosed contributions to the Michigan
Chamber of Commerce to fund negative ads aimed at Abraham's
opponent, now U.S. Senator Deborah Stabenow. Some close to the
Chamber have estimated that the contributions, while legal and not
requiring reporting, may have amounted to more than $250,000.\13\
Such contributions are usually made to organizations to support the
organization's activities, not political ads--;which is why
there is no disclosure
[[Page 28393]]
requirement. Microsoft knew this and took advantage of the loophole
in Michigan. Political operatives throughout the country reported
similar occurrences in other political races considered ``top
targets'' by both national parties, but efforts to gain access
to contributor lists from some of the ``independent''
groups believed to be accepting the contributions have unsuccessful.
---------------------------------------------------------------------------
\13\Wall Street Journal, Oct. 16, 2000, Wilke
---------------------------------------------------------------------------
34. Significant contributions were also made in Missouri by
Microsoft to help re-elect Senator John Ashcroft, the current U.S.
Attorney General. Missouri was another state where independent
groups without significant resources of their own suddenly were
flush with money to run ads defending Ashcroft and attacking his
opponent. Ashcroft, whose campaign benefited greatly from
Microsoft's disclosed campaign contributions--;$19,000 in
reported donations--;lost his election bid. He now runs the
federal executive department responsible for proposing the
settlement offer, and his office is now staffed with political
operatives who played a role in raising the $19,000 from Microsoft,
coordinating his campaign efforts with those of Microsoft in
Missouri, and in one case, directing the entire Republican National
Committee fundraising and political campaign operation in the 2000
election cycle.
35. Deborah Senn, the Democratic primary opponent of Washington
State Senator Cantwell, received $15,000 more from Microsoft than
did Cantwell who received $30,150. This total, however, dwarfs the
money poured into now-former Senator Gorton's
campaign--;$131,160. Only
Democratic Congressman Jay Inslee's total of $126,850 comes
close to that of former Senator Gorton. Congressman Inslee
represents Microsoft's home district, and defends the company
vigorously in Washington, D.C.
36. In addition to those in Washington State, candidates or
parties in three other states received contributions totaling six
figures. California was second at $174,900 with virtually the entire
amount going to Leadership PACs--;Members'' PACs that
contribute money to other allied candidates--;and directly to
Members of Congress. Texas was third at $107,250 although this
amount does not include contributions to the Bush/Cheney campaign.
This was an unusually large amount for the state when compared to
previous giving patterns.
37. While Microsoft contributed $100,000 to the Bush/Cheney
Inaugural Committee in January 2001, virtually all contributions to
presidential campaigns were made prior to July 31st, with the
exception of contributions to Libertarian Party candidate Harry
Browne's campaign. (This is presumably because, to be eligible for
federal matching funds for the primaries and federal funding for the
general election, major party candidates receiving are not allowed
to solicit or receive campaign contributions after they are
nominated at their conventions.) Only four primary presidential
candidates received contributions greater than $10,000: Bill
Bradley, $33,400; George Bush, $57,300; Al Gore, $28,000, John
McCain $39,448.
Table 1. Candidates & Organizations Receiving $10,000 or
more from Microsoft Following is a breakdown of Microsoft's
contributions of more than $10,000 to candidates and organizations
during the 2000 election cycle.
Abraham for Senate $24,650.00 Kerrey for US Senate $10,000.00
Adam Smith for Congress $31,750.00 Leadership PAC 2000 (Oxley)
$10,000.00
American Success PAC(Drier) $11,750.00 Majority Leader's Fund
(Armey) $11,000.00
Ashcroft (combined) $19,250.00 McCain 2000 $39,448.00
Bill Bradley for President $33,400.00 McIntosh for Governor
$25,000.00
Brian Baird for Congress $38,400.00 Michigan Republican State
Ctte. $50,000.00
Bush for President $57,300.00 Montana Republican State Ctte.
$10,000.00
Bush/Cheney Inaugural $100,000.00 NDN $38,750.00
California FriendsLatino PAC $10,000.00 New Majority Project
$15,000.00
California Women Vote $10,000.00 New York Senate 2000 $40,000.00
Cantwell 2000 $30,150.00 NWLeadership PAC (Gorton) $17,000.00
Citizens for Rick Larsen $35,600.00 Republican Party
$1,691,090.50
DASHPAC $10,000.00 Republican Campaign Committee of New Mexico
$33,492.48
Democratic Party $1,300,892.00 Republican Majority Fund (Don
Nickles) $15,000.00
Democratic Party of Georgia $20,000.00 Republican Party of
Virginia $12,000.00
Dooley for Congress $10,500.00 Republican Senate Council
$15,000.00
EMILY's List $176,600.00 Santorum 2000 $11,000.00
Ensign for Senate $10,000.00 Senn 2000 $45,651.00
Feinstein 2000 $12,000.00 Snowe for Senate $10,000.00
Friends for Slade Gorton $131,160.00 TechNet $10,000.00
Friends of Conrad Bums $15,250.00 Utah Republican Party
$29,383.00
Friends of Heidi $16,300.00 Washington State Democratic Central
Committee $30,387.00
Friends of Jennifer Dunn $14,700.00 Washington State Republican
Party $104,150.00
Gore for President $28,000.00 Washington Victory Committee 1999
$35,500.00
Inslee for Congress $126,850.00 Washington Victory Fund
$55,000.00
Jim Davis for Congress $17,250.00 Washington Women Vote
$11,000.00
Jon Kyl for Senate $11,000.00 Western Republican PAC $10,000.00
Kennedy for Senate $12,000.00 Women Vote 2000 $100,000.00
B. ``Strategic'' Philanthropy
38. Microsoft has also contributed money to the causes of
politicians as yet another method to use donations, political in
nature, to gamer support and ultimately influence the outcome of the
trial.
39. According to USA Today, Microsoft and the philanthropic arm
of its founder and chairman, the Bill and Melinda Gates Foundation,
``donate millions of dollars to causes and projects that are
dear to the hearts of government policymakers, such as a $50,000
gift to the Congressional Black Caucus Foundation.''\14\
Shortly after the donation to the CBC, according to Business Week,
Microsoft gained an unlikely ally in the Caucus chairman,
Representative James E. Clyburn (D- SC), ``who represents one
of the least technology-rich districts in the
country.''\15\ In addition, a timely $10 million gift to
the U.S. Capitol Visitor's Center further endeared Microsoft to many
Members of Congress.
---------------------------------------------------------------------------
\14\USA Today, May 30, 2000, Drinkard, Ullman
\15\BusinessWeek, May 15, 2000, Carney, Borrus, Greene
---------------------------------------------------------------------------
40. Yet the strategic philanthropy began long before the 2000
election cycle. According to the Gates Foundation web site, there
was a three-year hiatus in philanthropic giving between 1995 and
1998. Curiously, the last donation in 1995 occurred just prior to
the signing of the 1995 consent decree and the first donation in
1998 occurred the day prior to the Department of Justice filing its
antitrust suit against Microsoft.
c. Lobbying
41. In addition to the millions Microsoft spent on campaign
contributions, the company spent millions more lobbying Congress,
the Administration and state officials to influence the outcome of
the antitrust trial. Much like its campaign contributions, the
company's lobbying presence in
Washington has grown significantly in the last few years, its
growth accelerating rapidly at the outset of the antitrust trial.
Once just Jack Krumholtz, the company's lobbying group now employs
40 people in Redmond and Washington. The company has hired a
dozen lobbying firms and counts among its consultants and lobbyists
some of the most prominent figures in politics. A company with
30,000 employees, Microsoft has more lobbyists on retainer than the
handful of U.S. companies with more than 300,000 employees.
According to USA Today, ``in 1996, the company spent $1.2
million on its Washington lobbying operations. [In 1999], that
figure topped $4.6 million.'' According to Business Week in
reference to the company's political spending, ``These days,
Microsoft money flows like champagne at a wedding.''\16\
Some of the biggest names in Washington going back 30 years
represent Microsoft--;many are former bosses of the people they
lobby. There are more than a half-dozen former Members of Congress,
four former White House Chief Counsels, countless dozens of former
senior aides from the Congress, Justice Department and elsewhere
throughout the highest levels of government.
---------------------------------------------------------------------------
\16\16 ibid.
---------------------------------------------------------------------------
i. Lobbying the Administration
42. Since the inauguration of George W, Bush in January 2001,
Microsoft has made a concerted effort to strengthen its ties to the
Administration. The Administration's decision to agree to a
settlement widely accepted to be ineffective calls into question the
nature of such ties.
[[Page 28394]]
43. Prior to the announcement of the settlement, for example, it
has been reported there was an inappropriate, if not illegal,
discussion between a senior aide to Attorney General John Ashcroft
and a lobbyist for AOL-Time Warner.
44. According to the account in the New York Times, the senior
aide to General Ashcroft is David Israelite. Israelite was the
political director of the Republican National Committee which
received more than a million dollars from Microsoft during the 2000
presidential campaign.
In that role, Mr. Israelite directed fundraising operations and
coordinated campaign activities between entities like Microsoft and
the national party apparatus. Now General Ashcroft's deputy chief of
staff in the Office of the Attorney General, Mr. Israelite recused
himself from the case as a result of his ownership of 100 shares of
Microsoft stock.
45. The Times wrote, ``According to the notes of a person
briefed about the conversation on Oct. 9, the day it is said to have
occurred, Mr. Israelite called [AOL lobbyist] Mr. [Wayne] Berman.
``Are you guys behind this business of the states hiring their
own lawyers in the Microsoft case?'' Mr. Israelite asked Mr.
Berman in the predawn conversation, according to the notes.
`Tell your clients we wouldn't be too happy about
that.''
46. Israelite allegedly said on that call that the Supreme Court
was soon to deny Microsoft's appeal, which would prompt the
Department of Justice to seek a settlement. He was reported to have
complained that AOL was ``radicalizing'' the states. \17\
While the conversation was confirmed, the participants denied the
content of the conversation. Still, it was enough to provoke angry
responses from the technology industry and an accusation of
``inappropriate and possibly illegal'' conduct from a key
House Democrat, Congressman John Conyers, Ranking Democratic Member
of the House Judiciary Committee. In a letter to Attorney General
Ashcroft, Rep. Conyers asked for more information about Israelite's
alleged contacts with Berman, specifically asking for a list of
contacts between Israelite and AOL officials. ``If the
allegations reported by the media are true, such active involvement
by a recused public official could violate federal conflict of
interest laws,'' Conyers wrote. \18\
---------------------------------------------------------------------------
\17\17 New York Times, Nov. 2, 2001
\18\The Kansas City Star, Nov. 8, 2000, Kraske
---------------------------------------------------------------------------
ii. Lobbying on the Campaign Trail
47. Mirroring its political giving strategy, Microsoft's
lobbying strategy has focused mainly on Republicans, while hedging
its bets and simultaneously courting Democrats to a slightly lesser
extent. 48. During the campaign, Microsoft Chairman Bill Gates was
asked if a Republican administration would be a positive development
for the company. It would ``help,'' he said. \19\ After
all, before Judge Jackson ruled against Microsoft, then Governor
Bush was quoted as saying that he stood ``on the side of
innovation, not litigation.''
---------------------------------------------------------------------------
\19\Common Cause, ``The Microsoft Playbook''
---------------------------------------------------------------------------
49. In fact, according to Newsweek Magazine, Bill Gates's visit
to then Governor Bush in Austin was ``part of a delicate
political dance between the software giant and the Republican Party
.... Dollar signs in their eyes, GOP leaders covet big political
contributions from Microsoft's coffers. In turn, Microsoft
executives, plagued by the Clinton Justice Department's lawsuit,
hope that a Republican president and Congress might shut down the
efforts to punish the company.'' 50. A number of other
Microsoft executives, lobbyists and other paid counsel lead back to
the Bush camp. The company's Chief Operating Officer, Steve Ballmer,
served then Governor Bush as a technology adviser. Tony Feather,
former Bush political director, is a partner with a Republican
consulting firm Microsoft hired to manage grassroots lobbying
efforts. And Microsoft has paid lobbyist and former head of the
Republican Party Haley Barbour hundreds of thousands of dollars to
assist the company in Washington. The company has also hired Vin
Weber, a former Republican Congressman, and Michael Deaver, the
former White House chief of staff and trusted adviser credited with
crafting President Ronald Reagan's image and campaign advertisements
in the 1980s. 51. In addition, Microsoft retained the services of
Ralph Reed's Century Strategies ``for the stated purpose of
improving the company's public image.'' \20\ Reed's
firm--;a paid consultant to the Bush campaign--;aimed itself
at mobilizing Bush supporters to express to the candidate their
dissatisfaction with the antitrust trial. Once it was reported in
the New York Times, the firm issued an apology. The Wall Street
Journal later reported more on Ralph Reed's lobbying efforts on
Microsoft's behalf:
---------------------------------------------------------------------------
\20\20 ibid.
---------------------------------------------------------------------------
``BOUNTY PAYMENTS are offered for pro- Microsoft letters
and calls. Republican Ralph Reed's lobbying firm coordinates a
network of public-relations and lobbying partners that generates
grass-roots comments for cash. Payments are for letters, calls and
visits to lawmakers and policy makers. An e-mail offers sample
letters opposing a Microsoft breakup. A letter to a member of
Congress from a mayor or local Republican Party official is worth
$200, the guidelines say. A ``premier'' letter or visit by
a fund-raiser known to the lawmaker or a family member can be worth
up to $450 apiece. An op-ed piece in local papers fetches
$500.'' \21\
---------------------------------------------------------------------------
\21\WSJ, Oct. 20, 2000
---------------------------------------------------------------------------
52. Microsoft was lobbying the Democratic side as well. Like its
team of Republican all-stars, Microsoft's team of Democrats had very
close ties to its party as well. The team included ``super
lobbyist'' Tommy Boggs, a top Washington insider with deep
Democratic ties, Tom Downey, a former Democratic Congressman with
close ties to former Vice President Al Gore, and Craig Smith, former
campaign manager for Gore and board member of the Microsoft front
group, Americans for Technology Leadership. As a board member of the
ATL, Smith wrote to the Democratic National Committee urging his
fellow party members to abandon support for the antitrust case,
citing that support ``would make us vulnerable to attack in the
general election.'' \22\
---------------------------------------------------------------------------
\22\Common Cause, ``The Microsoft Playbook''
---------------------------------------------------------------------------
53. The company also hired Ginny Terzano, former Gore press
secretary, and tobacco industry ad man Carter Eskew, a former Gore
adviser-cum-Microsoft image consultant who helped craft the
company's 1999 advertising campaign aimed at bolstering its
reputation as a ``good corporate citizen.'' Also retained
by Microsoft was super-lobbyist Jack Quinn, former Chief of Staff to
Vice President Al Gore and White House Counsel.
iii. Lobbying Capitol Hill
54. But Microsoft did not focus solely on lobbying those who
would soon be in control of the Department of Justice. Microsoft
also waged a massive lobbying campaign aimed at Congress.
55. Alongside its Administration-oriented team, Microsoft
recruited more lobbyists and consultants with ties to Members of
Congress on both sides of the aisle. Republican hires included
Allison McSlarrow, former deputy chief of staff to Senate Majority
Leader Trent Lott, Ed Kutler, former assistant to then Speaker of
the House Newt Gingrich, Mitch Bainwol, former chief of staff to the
Senate Republican Caucus and the Republcian National Committee,
Kerry Knott, former chief of staff to House Majority Leader Richard
Armey, Ed Gillespie, former Armey and Republican National Committee
communications director, and Mimi Simoneaux, former legislative
director to House Commerce Committee Chairman Billy Tauzin, who was
then-chairman of the House subcommittee with jurisdiction over the
technology industry.
56. Among the Democrats lobbying on behalf of Microsoft were
Jamie Houton, former associate director of the Senate Democratic
Steering Committee, former Democratic Representative Vic Fazio, the
third-highest ranking House Democrat, and his former top staffer Tom
Jurkovich.
57. Despite Microsoft's assertion in its mere three-page Tunney
Act disclosure filing, the company has incessantly used its
tremendous resources to contact and influence Members of Congress.
Over the course of a 16-month period beginning in 1999, Microsoft
flew at least 130 Members of Congress or their staff to the
company's headquarters in Redmond, Washington to lobby on a number
of issues, including the antitrust case.
58. Perhaps the most egregious example of its heavy-handed
largesse came in late 1999, when Microsoft lobbied Congress to cut
$9 million from the budget for the Department of Justice's Antitrust
Division, the very body that was leading the prosecution against
Microsoft. Pilloried industries like the gun and tobacco had
considered and rejected the strategy as overly bold.
59. According to the Washington Post, ``Nonprofit
organizations that receive financial support from [Microsoft] have
also urged key congressional appropriators to limit spending for the
division .... The non profits made their request in a letter last
month after an all-expenses-paid trip to Microsoft headquarters in
Redmond, Washington, where they were entertained and briefed on an
array of issues facing the company.'' Further discussion
follows in the next section entitled ``Front Groups.''
[[Page 28395]]
60. After the previously secret letters from these non-profit
groups were exposed, news of the attempts received widespread
bipartisan criticism from media and politicians alike. House
Judiciary Committee Chairman Henry Hyde (R-IL), called the division
``one of the best-run departments in the government.''
Senator Herb Kohl, a Democrat on the Senate Judiciary Committee's
antitrust subcommittee, said ``it would set [a] terrible
precedent to alter the division's budget based on one case
alone.'' ``It's like the Mafia trying to defund the
FBI,'' said a prominent member of the Washington antitrust bar.
\23\ According to Jan McDavid, a lawyer with the Washington firm of
Hogan & Hartson and chairperson of the American Bar
Association's antitrust section, the section's policy states that it
``opposes the use of the congressional budget and
appropriations process to intervene in or influence ongoing
antitrust enforcement matters.'' \24\One congressional GOP
staffer went as far as to say that Microsoft's lobbying had
``the odor of obstruction.'' \25\
---------------------------------------------------------------------------
\23\23 Reuters, Oct. 17, 1999, Lawsky
\24\ibid.
\25\WS J, Oct. 15, 1999
---------------------------------------------------------------------------
61. Not surprisingly, Senator Slade Gorton, a Republican from
Microsoft's home state of Washington, was adamantly supportive of
the idea. Between 1997 and 1999, he received more than $50,000 from
Microsoft and its employees. During the 2000 election cycle,
Gorton's PAC received $17,000 while the Washington State Republican
Party received more than $100,000.
iv. Lobbying the States
62. Because 19 state attorneys general initiated the antitrust
case alongside the Department of Justice, Microsoft initiated a
state lobbying campaign aimed at influencing those attorneys general
to back away from the case. Microsoft even hired former Iowa House
Speaker Donald Avenson to lobby the state's Attorney General, who
was leading the group of states prosecuting the company. While
Microsoft has retained professional ``grassroots
consultants'' and others in many states, according to published
reports, it is their efforts in the 19 states with Attorneys General
who brought suit against them where the real pressure has occurred.
In those states they have retained former lawmakers, law partners of
the Attorneys General, their predecessors in that same office,
business associates, and their own trusted political consultants.
Microsoft has also hired those on whom the AGs are often most
politically dependent, such as union leaders and activists in states
with Democratic Attorneys General, and fiscally conservative
activists in state with Republican AGs.
63. Perhaps the company's most successful effort to influence
the state attorneys general came in 1998, when, three days after a
$25,000 contribution to the South Carolina Republican Party, the
state's Attorney General, Charles Condon, announced that he would
withdraw from the case.
64. Yet, a few of its grassroots efforts targeted at the states
have done more harm than good. Because of the unprecedented size,
scope and cost of Microsoft's campaign, a number of high profile
gaffes have exhibited the true nature of Microsoft's ``public
support'' and the depths to which the company will go to
influence the outcome of the trial.
65. In August 2001, the Los Angeles Times reported that two
letters received by the Utah Attorney General's office, one of the
prosecuting states, were sent by dead men. The campaign was funded
by Craig Smith's Americans for Technology Leadership. Despite its
claims to represent ``thousands of small and mid-sized
technology companies,'' news reports have repeatedly
characterized ATL and its counterpart, the Association for
Competitive Technology (ACT) as essentially wholly- owned
subsidiaries of Microsoft Corp., whose funding launched and sustains
both groups. \26\ Other characteristics of the letter writing
campaign to the Attorneys General included similar phrases popping
up again and again, invalid return addresses, and even masses of
identical letters with different signatories.
66. In one news story, Jim Prendergast, director of ATL,
initially admitted only to providing letter writers with
``message points.'' ``We gave them a few bullet
points, but that's about the extent of it,'' he said. When
asked why identical phrases were popping up again and again, he
confessed that sometimes ATL did indeed provide whole letters for
the citizens to sign and send. ``We'd write the letter and then
send it to them,'' he admitted.
---------------------------------------------------------------------------
\26\``Microsoft's All-Out Counterattack.'' Dan
Carney, with Amy Borrus. BusinessWeek May 15, 2000;
``Microsoft's Lobbying Largess Pays Off; Back-Channel Effort
Wins Support for Case.'' James V. Grimaldi. Washington Post May
17, 2000; ``Microsoft leans creatively on levers of political
power as breakup decision looms, `stealth'' lobbying
efforts aim for survival.'' Jim Drinkard and Owen Ullmann. USA
Today May 30, 2000
---------------------------------------------------------------------------
67. According to the same article, other states, like Minnesota
and Iowa, were subjected to Microsoft's full-press grassroots
lobbying campaign. Both states are participants in the antitrust
case. In the case of Iowa, Attorney General Tom Miller received more
than 50 letters in a month's time calling on him to drop the case.
While none of the letters were identical, several phrases were
similar. In four of the letters, for example, the following sentence
appeared: ``Strong competition and innovation have been the
twin hallmarks of the technology industry.'' Three others
contained this sentence: ``If the future is going to be as
successful as the recent past, the technology sector must remain
free from excess regulation.'' \27\
---------------------------------------------------------------------------
\27\Los Angeles Times, August 23,2001
---------------------------------------------------------------------------
68. Minnesota Attorney General Michael Hatch, who received 300
identical letters, characterized the campaign as
``sleazy.'' Many of the letter writers were misled by
Microsoft and one even wrote by hand to Attorney General Hatch to
say so and to apologize for his previous letter. ``I sure was
misled,'' he wrote. ``It's time for you to get out there
and kick butt.'' \28\
---------------------------------------------------------------------------
\28\28 Los Angeles Times, August 23, 2001
---------------------------------------------------------------------------
vi. Tying Up the Lobbyists and Lawyers
69. A frequently employed tactic of Microsoft is to retain all
major lobbying firms in key states so that its opposition cannot.
Similarly, the company has hired many Washington, DC-based law firms
with antitrust expertise to work on issues not related to the
antitrust case. ``They've got the whole town conflicted
out,'' said one attorney. ``They've sucked out all the
oxygen.'' \29\
---------------------------------------------------------------------------
\29\Business Week, May 15, 2000, Borrus, Carney, Greene
---------------------------------------------------------------------------
D. Front Groups 70. Supporting its political contributions and
lobbying campaign, Microsoft undertook an aggressive public
relations campaign aimed at ``creating the appearance of a
groundswell of public support for the company.'' \30\
---------------------------------------------------------------------------
\30\``Trust Us, We're Experts'' Sheldon Rampton
and John Stauber, p. 8
---------------------------------------------------------------------------
71. In April 1998, a reporter for the Los Angeles Times received
a package of confidential materials created by Edelman Public
Relations for its client, Microsoft. Among the documents was a media
relations strategy for a ``multi-million dollar'' campaign
aimed at stemming the rash of antitrust investigations being
undertaken by a number of states in conjunction with the federal
government's investigation. According to the reporters, Greg Miller
and Leslie Helm, ``the elaborate plan ... hinges on a number of
unusual--;and some say unethical--;tactics, including the
planting of articles, letters to the editor and opinion pieces to be
commissioned by Microsoft's top media handlers but presented by
local firms as spontaneous testimonials.'' \31\ While Microsoft
contends that this strategy was never implemented, a number of the
company's activities since the outset of the trial clearly indicate
that most of the elements have been employed, at times repeatedly.
---------------------------------------------------------------------------
\31\ibid.
---------------------------------------------------------------------------
72. Throughout the antitrust trial, Microsoft relied heavily on
many ``independent'' groups to support the company and to
oppose the suit publicly. Some groups they created themselves out of
whole cloth during the trial. Others sullied their long,
distinguished backgrounds by trading hard cash for the use of their
good names. Many denied any involvement with Microsoft, claiming
that their passion came from concern for the economy or
``innovation''--;only to later be unmasked by the news
media when evidence of their financial dealings with Microsoft came
to light. One account suggests Microsoft has harnessed at least 15
advocacy groups and think tanks that use Microsoft donations to
spread the company's message through polls, news conferences, Web
sites, letters to the editor, research papers, opinion pieces and
letter-writing campaigns aimed at lawmakers. \32\
---------------------------------------------------------------------------
\32\32 USA TODAY, ``Microsoft leans creatively on
levers of political power as breakup decision looms,
`stealth'' lobbying efforts aim for survival'' by
Jim Drinkard and Owen Ullmann, May 30, 2000
---------------------------------------------------------------------------
73. Groups with names like Americans for Technology Leadership
and the Association for Competitive Technology had the veneer of
genuine independence, but were actually founded by Microsoft,
launched with Microsoft dollars, and work on few other issues than
the defense of Microsoft in its antitrust trial.
[[Page 28396]]
74. Even well known Washington, DC organizations with strong
ties to the Administration and to Congress were well funded by
Microsoft--;respected fiscally conservative groups like Grover
Norquist's Americans for Tax Reform, former White House Counsel C.
Boyden Grey's Citizens for a Sound Economy, the National Taxpayers
Union and Citizens Against Government Waste. But upon closer
scrutiny, the true ties of these groups to Microsoft became
apparent. By paying for pro-Microsoft advertisements, by sponsoring
publications, by donating money outright, Microsoft both ensured and
devalued their support.
75. According to Business Week, Microsoft ``secretly funds
those that do its public-relations work and pulls funding from those
that dare question its positions.'' \33\ On one such occasion,
Microsoft pulled funding from the American Enterprise Institute once
one of its fellows, Robert Bork, came out in favor of the antitrust
trial even though the institute itself has no position on the trial
and many of its technical and antitrust experts have expressed their
opposition to the case. In another case, they quit a technology
industry trade group, the Software and Information Industry
Association, because a majority of its members supported the
antitrust case.
---------------------------------------------------------------------------
\33\Business Week, May 15, 2000, Carney, Borrus, Greene
---------------------------------------------------------------------------
i. Independent Institute
76. In one instance, Microsoft paid for the placement of
newspaper advertisements by the California-based Independent
Institute. Published in June 1999 in the New York Times and the
Washington Post, the full-page ads featured a pro-Microsoft letter
signed by 240 academics. Nothing in the ad's copy indicated to
readers who--;other than the Institute itself- was paying for
the ads. Apparently, no one at the Independent Institute indicated
to the letter's 240 signatories who was paying for the ad either.
One signatory, Professor Simon Hakim of Temple University, stated
that he would not have signed on to the advertisement had he known
who was behind it. \34\
---------------------------------------------------------------------------
\34\
I am aware there have been allegations that material relating to
the Independent Institute was uncovered by Investigative Group
International (IGI), allegedly retained by Oracle Corporation. My
understanding of the circumstances indicates that employees of IGI's
were terminated as a result of their actions. I have not reviewed
those allegations specifically, since the subject of my review was
defendant, Microsoft Corporation. Regardless, neither the
Independent Institute nor Microsoft ever denied the validity of the
claims after they were exposed.
---------------------------------------------------------------------------
77. At a Washington, DC press conference unveiling the ads,
Independent Institute president David Theroux answered a
reporter's specific question about whether Microsoft had
anything to do with the ads, including paying for them, with a
resounding ``no.'' When questioned months later by the New
York Times, Theroux again denied that Microsoft paid for the ads. He
said, instead, that the ads ``were paid for out of our general
funds.'' He also said the ``implication that Microsoft had
any influence is ridiculous.'' \35\ But, according to a front-
page article later written in the New York Times, ``among the
institute's internal documents is a bill from Mr. Theroux sent to
John A. C. Kelly of Microsoft for the full costs of the ads, plus
his travel expenses from San Francisco to Washington for the news
conference, totaling $153,868.67. Included was a $5,966 bill for
airline tickets for himself (Theroux) and a colleague.
Unfortunately, he wrote Mr. Kelly, `the airlines were heavily
booked'' and `we had to fly first class to DC and
business class on the return.''' Furthermore, despite
additional statements from its president that it ``adheres to
the highest standards of independent scholarly inquiry,''
internal institute documents have shown that, having contributed
more than $200,000, or 20% of the institute's total outside
contributions, Microsoft ``secretly served as the institute's
largest outside benefactor [in 1999].'' \36\ It wasn't until
September that the institute finally admitted the extent of
Microsoft's support.
---------------------------------------------------------------------------
\35\Associated Press, September 18, 1999
\36\New York Times, Sept. 19, 1999
---------------------------------------------------------------------------
78. In these instances, as in others, Microsoft's behavior
outside the courtroom had a direct impact on the proceedings inside
the courtroom. According to the New York Times, the ads prompted not
only more news stories but also courtroom discussion. \37\ Microsoft
also covered the costs of the publication of the institute's book,
``Winners, Losers and Microsoft: Competition and Antitrust in
High Technology,'' which Microsoft's economic witness in the
trial then used to support his own testimony.
---------------------------------------------------------------------------
\37\New York Times, Sept. 19, 1999
---------------------------------------------------------------------------
ii. Biased Polling
79. According to Business Week, Microsoft has also commissioned
polls to help foster an image of great public support for the
company. At the outset of the 2000 presidential campaign, around the
time of the Iowa caucus and the New Hampshire primary, Microsoft
funded polls aimed at demonstrating the public's opposition to the
antitrust case. Once the results were in, Microsoft distributed the
results to the media in order to compel the candidates to
incorporate their opposition to the case into their platform.
80. In addition, while the state Attorneys General were working
through the spring on formulating a remedy, Microsoft front group
Americans for Technology Leadership conducted and issued the results
of a poll, which concluded that the public wanted the Attorneys
General to focus their time and energy on other issues. In this
case, Microsoft failed to disclose the nature of its relationship
with ATL and the source of funding for the poll.
iii. Targeting the Antitrust Division of the Department of
Justice
81. As stated above, one of Microsoft's most egregious attempts
to use lobbying to influence the outcome of the antitrust trial came
when the company lobbied to cut funding for the Antitrust Division
of the Department of Justice. Microsoft funded a host of third
parties to push forth its agenda.
82. In September 1999, the company flew representatives from
about 15 major Washington, DC- based think tanks to Microsoft's
Redmond, Washington headquarters ``for three days of briefings
that included tickets to a Seattle Mariners game and dinner and
entertainment at Seattle's Teatro ZinZani, according to an
itinerary.'' \38\Among the groups were Citizens for a Sound
Economy, the National Taxpayers Union and Americans for Tax Reform,
whose president, Grover Norquist, received $40,000 in lobbying
payments from Microsoft during the second half of 1998.
---------------------------------------------------------------------------
\38\The Washington Post, Oct. 15, 1999, Morgan, Eilperin
---------------------------------------------------------------------------
83. Two days after returning from the trip, those three groups
and three others secretly sent a letter to House appropriators
urging that the Antitrust Division receive the lowest amount of
funding proposed. In a coordinated effort, on the same day one of
Microsoft's own lobbyists, Kerry Knott, met with Rep. Dan Miller of
Florida to urge him to grant the Antitrust Division the lower amount
of funds. That meeting prompted Rep. Miller to write to the chairman
of the House Appropriations Commerce, Justice, State and Judiciary
Subcommittee that ``it would be a devastating blow to the high-
tech industry and to our overall economy if the federal government
succeeds in its efforts to regulate this industry through
litigation.'' According to the Washington Post, ``Miller
said that while he objects to the funding on fiscal grounds, he had
not focused on it until Knott and Citizens for a Sound Economy
spokeswoman Christin Tinsworth, a former Miller staffer, made their
pitch just off the House floor.'' \39\
---------------------------------------------------------------------------
\39\ibid.
---------------------------------------------------------------------------
84. A Washington Post editorial summarized the propriety of the
incident this way: ``[T]he fact that Microsoft has the right to
lobby ... doesn't make the lobbying any less unseemly. If Microsoft
has a gripe, it should make its complaint to the court hearing its
case.'' \40\
---------------------------------------------------------------------------
\40\Washington Post, Oct. 24, 1999
---------------------------------------------------------------------------
III. CONCLUSIONS
85. The end result of Microsoft's unprecedented political
campaign seems to have been rewarded by the weak settlement
presented by the Department of Justice.
Respectfully Submitted,
Edward Roeder
January 28, 2002
APPENDIX A: Selected Tables
Table 1. Rapid Rises in Corporate PAC Fundraising,
1979-;2002
(After Raising More than $50,000)
Microsoft Corporation, Formed: 1987-;88, Total Raised,
1995-;96: $59,750, Total Raised, 1997-;98: $599,568,
Difference: $539,818 = 903.46% Rank: 1
American Telephone & Telegraph Co., Formed: 1983-;84,
Total Raised, 1983-;84: $215,423, Total Raised, 1985-;86:
$1,820,621, Difference: $1,605,198 = 745.14% Rank: 2
Drexel Burnham Lambert Group, Inc. Formed: 1981-;82, Total
Raised, 1983-;84: $66,844, Total Raised, 1985-;86:
$446,279, Difference: $379,435 = 567.64% Rank: 3
Safari Club International Formed: 1979-;80, Total Raised,
1993=94: $94,149, Total Raised, 1995-;96: $545,915, Difference:
$451,766 = 479.84% Rank: 4
Fluor Corporation Formed: 1979-;80, Total Raised,
1987-;88: $87,236, Total Raised,
[[Page 28397]]
1989-;90: $494,417, Difference: $407,181 = 466.76% Rank: 5
Dow Chemical, USA--;HQ Formed: 1979-;80, Total Raised,
1995-;96: $60,290, Total Raised, 1997-;98: $331,286,
Difference: $270,996 = 449.49% Rank: 6
Lucent Technologies, Inc. Formed: 1995-;96, Total Raised,
1995-;96: $87,568, Total Raised, 1997-;98: $464,592,
Difference: $377,024 = 430.55% Rank: 7
Nat'l Star Route Mail Contractors Ass'n Formed: 1981-;82,
Total Raised, 1995-;96: $63,512, Total Raised, 1983-;84:
$313,609, Difference: $250,097 = 393.78% Rank: 8
Eastern Airlines, Inc. Formed: 1979-;80, Total Raised,
1985-;86: $53,309, Total Raised, 1987-;88: $243,529,
Difference: $190,220 = 356.83% Rank: 9
Pacific Telesis Group Formed: 1979-;80, Total Raised,
1981-;82: $65,538, Total Raised, 1983-;84: $280,183,
Difference: $214,645 = 327.51% Rank: 10
Henley Group/Wheelabrator Technologies, Inc. Formed:
1979-;80, Total Raised, 1985-;86: $89,255, Total Raised,
1987-;88: $380,102, Difference: $290,847 = 325.86% Rank: 11
Firstar (First Wisconsin) Corp. Formed: 1979-;80, Total
Raised, 1997-;98: $113,743, Total Raised, 1999-;00:
$480,239, Difference: $366,496 = 322.21% Rank: 12
U.S. West, Inc. Formed: 1983-;84, Total Raised,
1987-;88: $123,767, Total Raised, 1989-;90: $521,886,
Difference: $398,119 = 321.67% Rank: 13
CSX Corp.--;Jeffboat Formed: 1981-;82, Total Raised,
1997-;98: $74,125, Total Raised, 1999-;00: $303,763,
Difference: $229,638 = 309.80% Rank: 14
J. P. Morgan & Company, Inc. Formed: 1979-;80, Total
Raised, 1983-;84: $68,569, Total Raised, 1985-;86:
$274,515, Difference: $205,946 = 300.35% Rank: 15
Source: Computer analysis by Sunshine Press Services of Federal
Election Commission data, Jan. 1, 1979 through Dec. 31, 2000.
Table 2. Continued Rises in Corporate PAC Fundraising,
1979-;2002
Following Rapid Rise of More than 300% from a base of $50,000+
(Ranked by Percentage Rise in Next Election Cycle)
Microsoft Corporation Formed: 1987-;88, Total Raised,
1995-;96: $59,750, Total Raised, 1997-;98: $599,568,
Difference: $539,818 = 903.46% Next Cycle: 1999-;00, Total
Raised: $1,589,684, Difference: $990,116 = 165.14% Rank: 1
J. P. Morgan & Company, Inc. Formed: 1979-;80, Total
Raised, 1983-;84: $68,569, Total Raised, 1985-;86:
$274,515, Difference: $205,946 = 300.35% Next Cycle: 1987-;88,
Total Raised: $514,285, Difference: $239,770 = 87.34% Rank: 2
American Telephone & Telegraph Co. Formed: 1983-;84,
Total Raised, 1983-;84: $215,423, Total Raised, 1985-;86:
$1,820,621, Difference: $1,605,198 = 745.14% Next Cycle:
1987-;88, Total Raised: $3,043,510, Difference: $1,222,889 =
67.17% Rank: 3
U.S. West, Inc. Formed: 1983-;84, Total Raised,
1987-;88: $123,767, Total Raised, 1989-;90: $521,886,
Difference: $398,119 = 321.67% Next Cycle: 1991-;92, Total
Raised: $734,130, Difference: $212,244 = 40.67% Rank: 4
Pacific Telesis Group Formed: 1979-;80, Total Raised,
1981-;82: $65,538, Total Raised, 1983-;84: $280,183,
Difference: $214,645 = 327.51% Next Cycle: 1985-;86, Total
Raised: $364,113, Difference: $83,930 = 29.96% Rank: 5
Fluor Corporation Formed: 1979-;80, Total Raised,
1987-;88: $87,236, Total Raised, 1989-;90: $494,417,
Difference: $407,181 = 466.76% Next Cycle: 1991-;92, Total
Raised: $610,142, Difference: $115,725 = 23.41% Rank: 6
Nat'l Star Route Mail Contractors Ass'n Formed: 1981-;82,
Total Raised, 1995-;96: $63,512, Total Raised, 1983-;84:
$313,609, Difference: $250,097 = 393.78% Next Cycle: 1985-;86,
Total Raised: $43,468, Difference: $2,269 = 5.51% Rank: 7
Firstar (First Wisconsin) Corp. Formed: 1979-;80, Total
Raised, 1997-;98: $113,743, Total Raised, 1999-;00:
$480,239, Difference: $366,496 = 322.21% Next Cycle: (data
incomplete, cycle now in progress)
CSX Corp.--;Jeffboat Formed: 1981-;82, Total Raised,
1997-;98: $74,125, Total Raised, 1999-;00: $303,763,
Difference: $229,638 = 309.80% Next Cycle: (data incomplete, cycle
now in progress)
Dow Chemical, USA--;HQ Formed: 1979-;80, Total Raised,
1995-;96: $60,290, Total Raised, 1997-;98: $331,286,
Difference: $270,996 = 449.49% Next Cycle: 1999-;00, Total
Raised: $279,618, Difference: $-51,668 = -15.60% Rank: 10
Lucent Technologies, Inc. Formed: 1995-;96, Total Raised,
1995-;96: $87,568, Total Raised, 1997-;98: $464,592,
Difference: $377,024 = 430.55% Next Cycle: 1999-;00, Total
Raised: $343,462, Difference: $-121,130 = -26.07% Rank: 11
Drexel Burnham Lambert Group, Inc. Formed: 1981-;82, Total
Raised, 1983-;84: $66,844, Total Raised, 1985-;86:
$446,279, 27
MTC-00028684--;0173 Difference: $379,435 = 567.64% Next
Cycle: 1987-;88, Total Raised: $310,188, Difference: $-136,091 = -
30.49% Rank: 12
Safari Club International Formed: 1979-;80, Total Raised,
1993=94: $94,149, Total Raised, 1995-;96: $545,915, Difference:
$451,766 = 479.84% Next Cycle: 1997-;98, Total Raised:
$378,078, Difference: $-167,837 = -30.74% Rank: 13
Eastern Airlines, Inc. Formed: 1979-;80, Total Raised,
1985-;86: $53,309, Total Raised, 1987-;88: $243,529,
Difference: $190,220 = 356.83% Next Cycle: 1989-;90, Total
Raised: $105,734, Difference: $-137,795 = -56.58% Rank: 14
Henley Group/Wheelabrator Technologies, Formed: 1979-;80,
Total Raised, 1985-;86: $89,255, Total Raised, 1987-;88:
$380,102, Difference: $290,847 = 325.86% Next Cycle: 1989-;90,
Total Raised: $141,072, Difference: $-239,030 = -62.89% Rank: 15
Source: Computer analysis by Sunshine Press Services of Federal
Election Commission data, Jan. 1, 1979 through Dec. 31, 2000.
Table 3.--;Largest Cash Balances at end of 1999-;2000 Election
Cycle
American Corporate PACs
------------------------------------------------------------------------
Cash on
Rank PAC Sponsor Hand
------------------------------------------------------------------------
1................................... Microsoft Corporation.. $712,874
2................................... Southern Bell Telephone 617,922
& Telegraph Co..
3................................... Crawford Group / 611,442
Enterprise Leasing.
4................................... Southwestern Bell 550,841
Corporation.
5................................... Chrysler / Gulfstream 481,068
Aerospace Corp..
6................................... Federal Express 424,739
Corporation.
7................................... NationsBank............ 413,663
8................................... First Union Corporation 410,242
9................................... First Bank System, Inc. 405,187
10.................................. Stone Container 368,973
Corporation.
11.................................. General Electric 359,469
Company.
12.................................. National Health 340,205
Corporation.
13.................................. Exxon Corporation...... 328,559
14.................................. Outback Steakhouse, 325,977
Inc..
15.................................. Columbia / HCA 284,827
Healthcare.
16.................................. American Family 283,963
Corporation.
17.................................. Cooper Industries, Inc. 281,054
18.................................. Suntrust Banks, Inc.... 275,779
19.................................. Winn-Dixie Stores, Inc. 273,232
20.................................. Jacobs Engineering 272,982
Group, Inc..
21.................................. Ford Motor Company..... 264,914
22.................................. U.S. West, Inc......... 261,289
23.................................. Compass Bancshares, 253,625
Inc..
------------------------------------------------------------------------
Source: Computer analysis by Sunshine Press Services of Federal
Election Commission data.
Table 4. Largest Percentage Increases in Receipts Over Two
Election Cycles
American Corporate PACs With More Than $50,000
Microsoft Corporation Formed:1987-;88, Total Raised,
1995-;96: $59,750, Total Raised, 1999-;00: $1,589,684,
Difference: $1,529,934 = 2,560.56% Rank: 1
American Telephone & Telegraph Co. Formed:1983-;84,
Total Raised, 1983-;84: $215,423, Total Raised, 1987-;88:
$3,043,510, Difference: $2,828,087 = 1,312.81% Rank: 2
Firstar (First Wisconsin) Corp. Formed:1979-;80, Total
Raised, 1995-;96: $59,437, Total Raised, 1999-;00:
$480,239, Difference: $420,802 = 707.98% Rank: 3
J. P. Morgan & Company, Inc. Formed:1979-;80, Total
Raised, 1983-;84: $68,569, Total Raised, 1987-;88:
$514,285, Difference: $445,716 = 650.03% Rank: 4
[[Page 28398]]
U.S. West, Inc. Formed:1983-;84, Total Raised,
1985-;86: $69,588, Total Raised, 1989-;90: $521,886,
Difference: $452,298 = 649.97% Rank: 5
Bell Atlantic Corp. Formed:1983-;84, Total Raised, 1993=94:
$146,949, Total Raised, 1997-;98: $1,046,617, Difference: $899,
668 = 612.23% Rank: 6
Fluor Corporation Formed:1979-;80, Total Raised,
1987-;88: $87,236, Total Raised, 1991-;92: $610,142,
Difference: $522,906 = 599.42% Rank: 7
Dow Chemical, USA--;HQ Formed:1979-;80, Total Raised,
1993=94: $53,297, Total Raised, 1997-;98: $331,286, Difference:
$277,989 = 521.58% Rank: 8
GA Technologies, Inc. Formed:1987-;88, Total Raised,
1987-;88: $51,702, Total Raised, 1991-;92: $320,081,
Difference: $268,379 = 519.09% Rank: 9
U.S. West, Inc. Formed:1983-;84, Total Raised,
1987-;88: $123,767, Total Raised, 1991-;92: $734,130,
Difference: $610,363 = 493.15% Rank: 10
American Information Technologies Corp. Formed:1983-;84,
Total Raised, 1989-;90: $233,266, Total Raised, 1993=94:
$1,370,945, Difference: $1,137,679 = 487.72% Rank: 11
Allied-Signal, Inc. Formed:1979-;80, Total Raised,
1981-;82: $65,703, Total Raised, 1985-;86: $384,530,
Difference: $318,827 = 485.25% Rank: 12
Glaxo, Inc. Formed:1985-;86, Total Raised, 1989-;90:
$106,192, Total Raised, 1993=94: $607,224, Difference: $501,032 =
471.82% Rank: 13
Nynex Corporation Formed:1983-;84, Total Raised,
1991-;92: $62,304, Total Raised, 1995-;96: $346,809,
Difference: $284,505 = 456.64% Rank: 14
Pacific Telesis Group Formed:1979-;80, Total Raised,
1981-;82: $65,538, Total Raised, 1985-;86: $364,113,
Difference: $298,575 = 455.58% Rank: 15
Philip Morris, Inc. Formed:1979-;80, Total Raised,
1979-;80: $93,291, Total Raised, 1983-;84: $499,938,
Difference: $406,647 = 435.89% Rank: 16
American Electric Power Company, Inc. Formed:1979-;80,
Total Raised, 1995-;96: $106,155, Total Raised, 1999-;00:
$545,295, Difference: $439,140 = 413.68% Rank: 17
Waste Management, Inc. Formed:1979-;80, Total Raised,
1981-;82: $76,738, Total Raised, 1985-;86: $391,637,
Difference: $314,899 = 410.36% Rank: 18
Cigna Corporation Formed:1979-;80, Total Raised,
1979-;80: $56,174, Total Raised, 1985-;86: $286,319,
Difference: $230,145 = 409.70% Rank: 19
LDDS Communications, Inc. Formed:1987-;88, Total Raised,
1993=94: $63,542, Total Raised, 1997-;98: $323,680, Difference:
$260,138 = 409.40% Rank: 20
Safari Club International Formed:1979-;80, Total Raised,
1991-;92: $107,314, Total Raised, 1995-;96: $545,915,
Difference: $438,601 = 408.71% Rank: 21
Michigan Bell Telephone Company Formed:1979-;80, Total
Raised, 1983-;84: $53,326, Total Raised, 1987-;88:
$266,944, Difference: $213,618 = 400.59% Rank: 22
E1 Paso Company Formed:1979-;80, Total Raised,
1995-;96: $75,920, Total Raised, 1999-;00: $379,370,
Difference: $303,450 = 399.70% Rank: 23
Merrill Lynch & Company, Inc. Formed:1979-;80, Total
Raised, 1979-;80: $56,895, Total Raised, 1983-;84:
$282,297, Difference: $225,402 = 396.17% Rank: 24
Federal Express Corporation Formed:1983-;84, Total Raised,
1983-;84: $230,478, Total Raised, 1987-;88: $1,139,978,
Difference: $909,500 = 394.61% Rank: 25
MBNA Corporation Formed:1991-;92, Total Raised,
1991-;92: $184,764, Total Raised, 1995-;96: $903,599,
Difference: $718,835 = 389.06% Rank: 26
MCI Telecommunications Corporation Formed:1983-;84, Total
Raised, 1993=94: $104,688, Total Raised, 1997-;98: $510,195,
Difference: $405,507 = 387.35% Rank: 27
Smith Barney & Company Formed:1979-;80, Total Raised,
1995-;96: $128,843, Total Raised, 1999-;00: $627,332,
Difference: $498,489 = 386.90% Rank: 28
Chrysler / Gulfstream Aerospace Corp. Formed:1979-;80,
Total Raised, 1981-;82: $77,152, Total Raised, 1985-;86:
$373,792, Difference: $296,640 = 384.49% Rank: 29
American Information Technologies Corp. Formed:1983-;84,
Total Raised, 1987-;88: $105,465, Total Raised, 1991-;92:
$501,210, Difference: $395,745 = 375.24% Rank: 30 Waste Management,
Inc. Formed:1979-;80, Total Raised, 1983-;84: $138,076,
Total Raised, 1987-;88: $653,361, Difference: $515,285 =
373.19% Rank: 31
Texas Air Corp. Formed:1979-;80, Total Raised,
1981-;82: $53,560, Total Raised, 1985-;86: $252,847,
Difference: $199,287 = 372.08% Rank: 32
Federal Express Corporation Formed:1983-;84, Total Raised,
1985-;86: $334,334, Total Raised, 1989-;90: $1,561,744,
Difference: $1,227,410 = 367.12% Rank: 33
Drexel Burnham Lambert Group, Inc. Formed:1981-;82, Total
Raised, 1983-;84: $66,844, Total Raised, 1987-;88:
$310,188, Difference: $243,344 = 364.05% Rank: 34
Dow Chemical, USA--;HQ Formed:1979-;80, Total Raised,
1995-;96: $60,290, Total Raised, 1999-;00: $279,618,
Difference: $219,328 = 363.79% Rank: 35
General Telephone & Electronics Corp. Formed:1979-;80,
Total Raised, 1987-;88: $169,871, Total Raised, 1991-;92:
$779,782, Difference: $609,911 = 359.04% Rank: 36
NationsBank Formed:1979-;80, Total Raised, 1987-;88:
$238,405, Total Raised, 1991-;92: $1,094,012, Difference:
$855,607 = 358.89% Rank: 37
CSX Corp.--;Jeffboat Formed:1981-;82, Total Raised,
1995-;96: $66,789, Total Raised, 1999-;00: $303,763,
Difference: $236,974 = 354.81% Rank: 38
Sears Roebuck & Co. (Allstate) Formed:1979-;80, Total
Raised, 1981-;82: $50,277, Total Raised, 1985-;86:
$223,313, Difference: $173,036 = 344.17% Rank: 39
First Union Corporation Formed:1983-;84, Total Raised,
1995-;96: $119,980, Total Raised, 1999-;00: $525,262,
Difference: $405,282 = 337.79% Rank: 40
Brown & Williamson Tobacco Corp. Formed:1979-;80, Total
Raised, 1991-;92: $117,271, Total Raised, 1995-;96:
$512,562, Difference: $395,291 = 337.07% Rank: 41
Coca-Cola Enterprises, Inc. Formed:1991-;92, Total Raised,
1993=94: $54,312, Total Raised, 1997-;98: $232,861, Difference:
$178,549 = 328.75% Rank: 42
Mutual of Omaha Insurance Company Formed:1979-;80, Total
Raised, 1989-;90: $74,612, Total Raised, 1993=94: $319,846,
Difference: $245,234 = 328.68% Rank: 43
Chase Manhattan Bank Formed:1979-;80, Total Raised,
1983-;84: $64,813, Total Raised, 1987-;88: $274,828,
Difference: $210,015 = 324.03% Rank: 44
Raytheon Company Formed:1979-;80, Total Raised,
1979-;80: $54,158, Total Raised, 1983-;84: $228,899,
Difference: $174,741 = 322 65% Rank: 45
Manufacturers Hanover Corporation Formed:1979-;80, Total
Raised, 1979-;80: $69,178, Total Raised, 1983-;84:
$291,068, Difference: $221,890 = 320.75% Rank: 46
Tenneco, Inc. Formed:1979-;80, Total Raised, 1991-;92:
$208,019, Total Raised, 1995-;96: $866,590, Difference:
$658,571 = 316.59% Rank: 47
Loral Systems Group Formed:1985-;86, Total Raised,
1989-;90: $86,215, Total Raised, 1993=94: $358,895, Difference:
$272,680 = 316.28% Rank: 48
Koch Industries, Inc. Formed:1989-;90, Total Raised,
1993=94: $202,392, Total Raised, 1997-;98: $831,184,
Difference: $628,792 = 310.68% Rank: 49
Koch Industries, Inc. Formed:1989-;90, Total Raised,
1991-;92: $104,401, Total Raised, 1995-;96: $428,074,
Difference: $323,673 = 310.03% Rank: 50
Bellsouth Corporation Formed:1983-;84, Total Raised,
1985-;86: $70,383, Total Raised, 1989-;90: $287,836,
Difference: $217,453 = 308.96% Rank: 51
Rockwell International Corporation Formed:1979-;80, Total
Raised, 1979-;80: $123,700, Total Raised, 1983-;84:
$497,473, Difference: $373,773 = 302.16% Rank: 52
Safari Club International Formed:1979-;80, Total Raised,
1993=94: $94,149, Total Raised, 1997-;98: $378,078, Difference:
$283,929 = 301.57% Rank: 53
RJR Nabisco, Inc. Formed:1979-;80, Total Raised,
1981-;82: $64,199, Total Raised, 1985-;86: $256,498,
Difference: $192,299 = 299.54% Rank: 54
American Information Technologies Corp. Formed:1983-;84,
Total Raised, 1985-;86: $58,487, Total Raised, 1989-;90:
$233,266, Difference: $174,779 = 298.83% Rank: 55
Southern Company Formed:1981-;82, Total Raised,
1995-;96: $125,656, Total Raised, 1999-;00: $497,118,
Difference: $371,462 = 295.62% Rank: 56
Lucent Technologies, Inc. Formed:1995-;96, Total Raised,
1995-;96: $87,568, Total Raised, 1999-;00: $343,462,
Difference: $255,894 = 292.22% Rank: 57
Fluor Corporation Formed:1979-;80, Total Raised,
1985-;86: $126,081, Total Raised, 1989-;90: $494,417,
Difference: $368,336 = 292.14% Rank: 58
Central & South West Services, Inc. Formed:1979-;80,
Total Raised, 1993=94: $57,841, Total Raised, 1997-;98:
$226,201, Difference: $168,360 = 291.07% Rank: 59
HSBC Americas / Marine Midland Banks Formed:1981-;82, Total
Raised, 1983-;84: $52,071, Total Raised, 1987-;88:
$200,106, Difference: $148,035 = 284.29% Rank: 60
Jacobs Engineering Group, Inc. Formed:1981-;82, Total
Raised, 1995-;96: $127,472, Total Raised, 1999-;00:
$488,875, Difference: $361,403 = 283.52% Rank: 61
[[Page 28399]]
Banc One Corporation Formed:1979-;80, Total Raised,
1989-;90: $270,704, Total Raised, 1993=94: $1,037,361,
Difference: $766,657 = 283.21% Rank: 62
Archer-Daniels-Midland Company Formed:1979-;80, Total
Raised, 1979-;80: $50,369, Total Raised, 1983-;84:
$192,426, Difference: $142,057 = 282.03% Rank: 63
Aetna Life and Casualty Company Formed:1983-;84, Total
Raised, 1983-;84: $88,329, Total Raised, 1987-;88:
$333,008, Difference: $244,679 = 277.01% Rank: 64
Outback Steakhouse, Inc. Formed:1991-;92, Total Raised,
1993=94: $230,022, Total Raised, 1997-;98: $865,042,
Difference: $635,020 = 276.07% Rank: 65
Lockheed Corporation Formed:1979-;80, Total Raised,
1979-;80: $136,127, Total Raised, 1983-;84: $511,131,
Difference: $375,004 = 275.48% Rank: 66
Duke Power Company Formed:1979-;80, Total Raised,
1995-;96: $69,970, Total Raised, 1999-;00: $261,562,
Difference: $191,592 = 273.82% Rank: 67
TRW, Inc. Formed:1979-;80, Total Raised, 1979-;80:
$69,121,
Total Raised, 1983-;84: $256,296
Difference: $187,175 = 270.79% Rank: 68
United Telecommunications, Inc. Formed:1979-;80
Total Raised, 1983-;84: $66,922
Total Raised, 1987-;88: $247,495
Difference: $180,573 = 269.83% Rank: 69
Loral Systems Group Formed:1985-;86
Total Raised, 1987-;88: $55,311
Total Raised, 1991-;92: $202,887
Difference: $147,576 = 266.81% Rank: 70
American General Corporation Formed:1979-;80
Total Raised, 1995-;96: $182,254
Total Raised, 1999-;00: $668,062
Difference: $485,808 = 266.56% Rank: 71
Phillips Petroleum Company Formed:1979-;80
Total Raised, 1983-;84: $99,365
Total Raised, 1987-;88: $364,141
Difference: $264,776 = 266.47% Rank: 72
Entergy Operations, Inc. Formed:1989-;90
Total Raised, 1993=94: $64,650
Total Raised, 1997-;98: $236,109
Difference: $171,459 = 265.21% Rank: 73
American Information Technologies Corporation
Formed:1979-;80
Total Raised, 1983-;84: $68,916
Total Raised, 1987-;88: $249,574
Difference: $180,658 = 262.14% Rank: 74
Sea-Land Corporation Formed:1979-;80
Total Raised, 1987-;88: $52,291
Total Raised, 1991-;92: $189,284
Difference: $136,993 = 261.98% Rank: 75
First City Bancorporation of Texas, Inc. Formed:1979-;80
Total Raised, 1979-;80: $85,372
Total Raised, 1983-;84: $307,649
Difference: $222,277 = 260.36% Rank: 76
Banc One Corporation Formed:1979-;80
Total Raised, 1987-;88: $173,949
Total Raised, 1991-;92: $622,458
Difference: $448,509 = 257.84% Rank: 77
E1 Paso Company Formed:1979-;80
Total Raised, 1993=94: $74,169
Total Raised, 1997-;98: $264,338
Difference: $190,169 = 256.40% Rank: 78
Dow Chemical, USA Formed:1979-;80
Total Raised, 1985-;86: $77,017
Total Raised, 1989-;90: $274,424
Difference: $197,407 = 256.32% Rank: 79
Timken Company Formed:1995-;96
Total Raised, 1995-;96: $79,717
Total Raised, 1999-;00: $277,044
Difference: $197,327 = 247.53% Rank: 80
Southern Bell Telephone & Telegraph Co. Formed:1979-;80
Total Raised, 1981-;82: $54,650
Total Raised, 1985-;86: $189,822
Difference: $135,172 = 247.34% Rank: 81
National City Corporation Formed:1981-;82
Total Raised, 1983-;84: $59,921
Total Raised, 1987-;88: $207,361
Difference: $147,440 = 246.06% Rank: 82
Wal-Mart Stores, Inc. Formed:1979-;80
Total Raised, 1989-;90: $56,535
Total Raised, 1993=94: $195,579
Difference: $139,044 = 245.94% Rank: 83
Eastern Airlines, Inc. Formed:1979-;80
Total Raised, 1983-;84: $70,676
Total Raised, 1987-;88: $243,529
Difference: $172,853 = 244.57% Rank: 84
Heublein, Inc. Formed:1979-;80
Total Raised, 1985-;86: $52,292
Total Raised, 1989-;90: $178,944
Difference: $126,652 = 242.20% Rank: 85
Salomon Brothers, Inc. Formed:1981-;82
Total Raised, 1981-;82: $106,250
Total Raised, 1985-;86: $363,500
Difference: $257,250 = 242.12% Rank: 86
First Bank System, Inc. Formed:1979-;80
Total Raised, 1995-;96: $85,349
Total Raised, 1999-;00: $290,311
Difference: $204,962 = 240.15% Rank: 87
Goodyear Tire & Rubber Company Formed:1979-;80
Total Raised, 1993=94: $54,504
Total Raised, 1997-;98: $185,093
Difference: $130,589 = 239.60% Rank: 88
North Carolina National Bank Corp. Formed:1979-;80
Total Raised, 1979-;80: $79,627
Total Raised, 1983-;84: $269,718
Difference: $190,091 = 238.73% Rank: 89
Caterpillar Tractor Company Formed:1981-;82
Total Raised, 1985-;86: $65,232
Total Raised, 1989-;90: $219,844
Difference: $154,612 = 237.02% Rank: 90
Lehman Brothers Kuhn Loec, Inc. Formed:1979-;80
Total Raised, 1979-;80: $51,400
Total Raised, 1983-;84: $171,973
Difference: $120,573 = 234.58% Rank: 91
Northrop Corporation Formed:1979-;80
Total Raised, 1979-;80: $86,250
Total Raised, 1983-;84: $288,361
Difference: $202,111 = 234.33% Rank: 92
GMC Electronic Data Systems Corporation Formed:1979-;80
Total Raised, 1987-;88: $116,315
Total Raised, 1991-;92: $388,257
Difference: $271,942 = 233.80% Rank: 93
Textron, Inc. Formed:1979-;80
Total Raised, 1981-;82: $116,552
Total Raised, 1985-;86: $388,852
Difference: $272,300 = 233.63% Rank: 94
Southern Bell Telephone & Telegraph Co. Formed:1979-;80
Total Raised, 1987-;88: $203,554
Total Raised, 1991-;92: $678,024
Difference: $474,470 = 233.09% Rank: 95
United Parcel Service of America, Inc. Formed:1979-;80
Total Raised, 1983-;84: $272,659
Total Raised, 1987-;88: $905,482
Difference: $632,823 = 232.09% Rank: 96
Gun Owners of America (gun control foes) Formed:1991-;92
Total Raised, 1995-;96: $93,086
Total Raised, 1999-;00: $309,050
Difference: $215,964 = 232.00% Rank: 97
Dun & Bradstreet Corporation Formed:1979-;80
Total Raised, 1981-;82: $51,577
Total Raised, 1985-;86: $169,954
Difference: $118,377 = 229.52% Rank: 98
J. C. Penney Company, Inc. Formed:1979-;80
Total Raised, 1981-;82: $91,484
Total Raised, 1985-;86: $301,185
Difference: $209,701 = 229.22% Rank: 99
United Parcel Service of America, Inc. Formed:1979-;80
Total Raised, 1985-;86: $567,328
Total Raised, 1989-;90: $1,865,785
Difference: $1,298,457 = 228.87% Rank: 100
Source: Computer analysis by Sunshine Press Services of Federal
Election Commission data, Jan. 1, 1979 through Dec. 31, 2000.
Table 5. Rapid Rises in Corporate PAC Spending, 1979-;2002
(After Spending More than $250,000)
Microsoft Corporation Formed: 1987-;88
Total Spent, 1997-;98: $267,500
Total Spent, 1999-;00: $1,221,730
Difference: $954,230 = 356.72% Rank: 1
Federal Express Corporation Formed: 1983-;84
Total Spent, 1985-;86: $392,441
Total Spent, 1987-;88: $1,093,998
Difference: $701,557 = 178.77% Rank: 2
Compass Bancshares, Inc. Formed: 1983-;84
Total Spent, 1991-;92: $363,617
Total Spent, 1993=94: $974,893
Difference: $611,276 = 168.11% Rank: 3
Metropolitan Life Insurance Company Formed: 1979-;80
Total Spent, 1997-;98: $310,633
Total Spent, 1999-;00: $815,624
Difference: $504,991 = 162.57% Rank: 4
Bell Atlantic Corp. Formed: 1983-;84
Total Spent, 1995-;96: $388,073
Total Spent, 1997-;98: $1,006,783
Difference: $618,710 = 159.43% Rank: 5
Planned Parenthood Action Fund, Inc. Formed: 1995-;96
Total Spent, 1997-;98: $359,408
Total Spent, 1999-;00: $914,501
Difference: $555,093 = 154.45% Rank: 6
RJR Nabisco, Inc. Formed: 1979-;80
Total Spent, 1987-;88: $348,897
Total Spent, 1989-;90: $872,626
Difference: $523,729 = 150.11% Rank: 7
Southern Bell Telephone & Telegraph Co. Formed:
1979-;80
Total Spent, 1989-;90: $265,096
Total Spent, 1991-;92: $650,905
Difference: $385,809 = 145.54% Rank: 8
American Information Technologies Corp. Formed: 1983-;84
Total Spent, 1991-;92: $518,442
Total Spent, 1993=94: $1,207,881
Difference: $689,439 = 132.98% Rank: 9
Tenneco, Inc. Formed: 1979-;80
Total Spent, 1993=94: $380,688
Total Spent, 1995-;96: $860,515
Difference: $479,827 = 126.04% Rank: 10
Banc One Corporation Formed: 1979-;80
[[Page 28400]]
Total Spent, 1991-;92: $421,467
Total Spent, 1993=94: $934,434
Difference: $512,967 = 121.71% Rank: 11
American General Corporation Formed: 1979-;80
Total Spent, 1997-;98: $291,488
Total Spent, 1999-;00: $634,510
Difference: $343,022 = 117.68% Rank: 12
Boeing Company Formed: 1981-;82
Total Spent, 1995-;96: $370,105
Total Spent, 1997-;98: $759,495
Difference: $389,390 = 105.21% Rank: 13
MBNA Corporation Formed: 1991-;92
Total Spent, 1993=94: $403,796
Total Spent, 1995-;96: $825,974
Difference: $422,178 = 104.55% Rank: 14
Compass Bancshares, Inc. Formed: 1983-;84
Total Spent, 1995-;96: $729,612
Total Spent, 1997-;98: $1,468,094
Difference: $738,482 = 101.22% Rank: 15
Southtrust Corporation Formed: 1979-;80
Total Spent, 1995-;96: $266,593
Total Spent, 1997-;98: $530,794
Difference: $264,201 = 99.10% Rank: 16
FirstEnergy Corp. (Ohio Edison) Formed: 1981-;82
Total Spent, 1997-;98: $253,675
Total Spent, 1999-;00: $502,890
Difference: $249,215 = 98.24% Rank: 17
Koch Industries, Inc. Formed: 1989-;90
Total Spent, 1995-;96: $428,664
Total Spent, 1997-;98: $807,318
Difference: $378,654 = 88.33% Rank: 18
Northrop Corporation Formed: 1979-;80
Total Spent, 1993=94: $422,969
Total Spent, 1995-;96: $794,880
Difference: $371,911 = 87.93% Rank: 19
J.P. Morgan & Company, Inc. Formed: 1979-;80
Total Spent, 1985-;86: $262,250
Total Spent, 1987-;88: $492,681
Difference: $230,431 = 87.87% Rank: 20
Philip Morris, Inc. Formed: 1979-;80
Total Spent, 1983-;84: $403,699
Total Spent, 1985-;86: $754,949
Difference: $351,250 = 87.01% Rank: 21
Eli Lilly & Company Formed: 1979-;80
Total Spent, 1995-;96: $375,583
Total Spent, 1997-;98: $700,580
Difference: $324,997 = 86.53% Rank: 22
Southwestern Bell Corporation Formed: 1979-;80
Total Spent, 1993=94: $365,700
Total Spent, 1995-;96: $674,857
Difference: $309,157 = 84.54% Rank: 23
Rockwell International Corporation Formed: 1979-;80
Total Spent, 1981-;82: $266,688
Total Spent, 1983-;84: $490,541
Difference: $223,853 = 83.94% Rank: 24
United Parcel Service of America, Inc. Formed: 1979-;80
Total Spent, 1991-;92: $1,835,231
Total Spent, 1993=94: $3,350,884
Difference: $1,515,653 = 82.59% Rank: 25
General Telephone & Electronics Corp. Formed: 1979-;80
Total Spent, 1989-;90: $420,131
Total Spent, 1991-;92: $765,805
Difference: $345,674 = 82.28% Rank: 26 United Parcel Service of
America, Inc. Formed: 1979-;80
Total Spent, 1985-;86: $522,514
Total Spent, 1987-;88: $943,815
Difference: $421,301 = 80.63% Rank: 27
Waste Management, Inc. Formed: 1979-;80
Total Spent, 1985-;86: $341,975
Total Spent, 1987-;88: $615,059
Difference: $273,084 = 79.85% Rank: 28
Houston Industries, Inc. Formed: 1979-;80
Total Spent, 1983-;84: $256,353
Total Spent, 1985-;86: $460,684
Difference: $204,331 = 79.71% Rank: 29
Cigna Corporation Formed: 1979-;80
Total Spent, 1997-;98: $352,512
Total Spent, 1999-;00: $624,736
Difference: $272,224 = 77.22% Rank: 30
United Parcel Service of America, Inc. Formed: 1979-;80
Total Spent, 1987-;88: $943,815
Total Spent, 1989-;90: $1,658,366
Difference: $714,551 = 75.71% Rank: 31
Black America's PAC Formed: 1995-;96
Total Spent, 1995-;96: $1,899,486
Total Spent, 1997-;98: $3,337,602
Difference: $1,438,116 = 75.71% Rank: 32
Chase Manhattan Corporation Formed: 1979-;80
Total Spent, 1989-;90: $274,760
Total Spent, 1991-;92: $481,894
Difference: $207,134 = 75.39% Rank: 33
Barnett Banks of Florida, Inc. Formed: 1979-;80
Total Spent, 1985-;86: $304,230
Total Spent, 1987-;88: $532,509
Difference: $228,279 = 75.04% Rank: 34
Bankamerica Corporation Formed: 1981-;82
Total Spent, 1993=94: $311,633
Total Spent, 1995-;96: $535,516
Difference: $223,883 = 71.84% Rank: 35
NationsBank Formed: 1979-;80
Total Spent, 1997-;98: $607,578
Total Spent, 1999-;00: $1,041,837
Difference: $434,259 = 71.47% Rank: 36
United Technologies Corporation Formed: 1979-;80
Total Spent, 1993=94: $263,300
Total Spent, 1995-;96: $450,078
Difference: $186,778 = 70.94% Rank: 37
Southwestern Bell Corporation Formed: 1979-;80
Total Spent, 1997-;98: $961,990
Total Spent, 1999-;00: $1,642,657
Difference: $680,667 = 70.76% Rank: 38
Lockheed Corporation Formed: 1979-;80
Total Spent, 1991-;92: $422,512
Total Spent, 1993=94: $708,346
Difference: $285,834 = 67.65% Rank: 39
Union Pacific Corporation Formed: 1979-;80
Total Spent, 1985-;86: $296,938
Total Spent, 1987-;88: $495,482
Difference: $198,544 = 66.86% Rank: 40
Household Finance Corporation Formed: 1979-;80
Total Spent, 1989-;90: $270,795
Total Spent, 1991-;92: $444,889
Difference: $174,094 = 64.29% Rank: 41
Sierra Club (environmentalist) Formed: 1979-;80
Total Spent, 1997-;98: $441,208
Total Spent, 1999-;00: $721,429
Difference: $280,221 = 63.51% Rank: 42
Westinghouse Electric Corp. Formed: 1979-;80
Total Spent, 1987-;88: $264,890
Total Spent, 1989-;90: $431,697
Difference: $166,807 = 62.97% Rank: 43
American Telephone & Telegraph Co. Formed: 1983-;84
Total Spent, 1985-;86: $1,744,301
Total Spent, 1987-;88: $2,841,464
Difference: $1,097,163 = 62.90% Rank: 44
General Motors Corporation Formed: 1979-;80
Total Spent, 1993=94: $477,782
Total Spent, 1995-;96: $777,521
Difference: $299,739 = 62.74% Rank: 45
Keycorp Formed: 1979-;80
Total Spent, 1995-;96: $376,200
Total Spent, 1997-;98: $611,975
Difference: $235,775 = 62.67% Rank: 46
Union Pacific Corporation Formed: 1979-;80
Total Spent, 1989-;90: $731,974
Total Spent, 1991-;92: $1,188,407
Difference: $456,433 = 62.36% Rank: 47
Sierra Club (environmentalist) Formed: 1979-;80
Total Spent, 1987-;88: $299,891
Total Spent, 1989-;90: $486,795
Difference: $186,904 = 62.32% Rank: 48
Chrysler / Gulfstream Aerospace Corp. Formed: 1979-;80
Total Spent, 1993=94: $417,015
Total Spent, 1995-;96: $659,369
Difference: $242,354 = 58.12% Rank: 49
Pfizer, Inc. Formed: 1979-;80
Total Spent, 1997-;98: $536,471
Total Spent, 1999-;00: $844,132
Difference: $307,661 = 57.35% Rank: 50
Chase Manhattan Bank Formed: 1979-;80
Total Spent, 1989-;90: $269,299
Total Spent, 1991-;92: $423,632
Difference: $154,333 = 57.31% Rank: 51
Sierra Club (environmentalist) Formed: 1979-;80
Total Spent, 1993=94: $431,725
Total Spent, 1995-;96: $677,883
Difference: $246,158 = 57.02% Rank: 52
Banc One Corporation Formed: 1979-;80
Total Spent, 1989-;90: $269,833
Total Spent, 1991-;92: $421,467
Difference: $151,634 = 56.20% Rank: 53
Raytheon Company Formed: 1979-;80
Total Spent, 1995-;96: $385,863
Total Spent, 1997-;98: $601,994
Difference: $216,131 = 56.01% Rank: 54
Eli Lilly & Company Formed: 1979-;80
Total Spent, 1997-;98: $700,580
Total Spent, 1999-;00: $1,089,599
Difference: $389,019 = 55.53% Rank: 55
Chrysler / Gulfstream Aerospace Corp. Formed: 1979-;80
Total Spent, 1995-;96: $659,369
Total Spent, 1997-;98: $1,021,714
Difference: $362,345 = 54.95% Rank: 56
Amsouth Bancorporation Formed: 1983-;84
Total Spent, 1997-;98: $304,524
Total Spent, 1999-;00: $470,782
Difference: $166,258 = 54.60% Rank: 57
Glaxo, Inc. Formed: 1985-;86
Total Spent, 1997-;98: $716,634
Total Spent, 1999-;00: $1,104,801
Difference: $388,167 = 54.17% Rank: 58
Crawford Group / Enterprise Leasing Formed: 1987-;88
Total Spent, 1993=94: $253,769
Total Spent, 1995-;96: $391,094
Difference: $137,325 = 54.11% Rank: 59
Associates Corp. (Ford Motor Co.) Formed: 1989-;90
Total Spent, 1995-;96: $342,269
Total Spent, 1997-;98: $526,937
Difference: $184,668 = 53.95% Rank: 60
Morgan Stanley & Company, Inc. Formed: 1979-;80
[[Page 28401]]
Total Spent, 1985-;86: $303,919
Total Spent, 1987-;88: $465,992
Difference: $162,073 = 53.33% Rank: 61
Houston Industries, Inc. Formed: 1979-;80
Total Spent, 1995-;96: $470,646
Total Spent, 1997-;98: $720,544
Difference: $249,898 = 53.10% Rank: 62
Outback Steakhouse, Inc. Formed: 1991-;92
Total Spent, 1997-;98: $636,741
Total Spent, 1999-;00: $974,275 Difference: $337,534 =
53.01% Rank: 63
Household Finance Corporation Formed: 1979-;80
Total Spent, 1997-;98: $512,016
Total Spent, 1999-;00: $782,819
Difference: $270,803 = 52.89% Rank: 64
General Motors Corp. / Hughes Aircraft Formed: 1979-;80
Total Spent, 1985-;86: $271,290
Total Spent, 1987-;88: $412,181
Difference: $140,891 = 51.93% Rank: 65
American Airlines Formed: 1979-;80
Total Spent, 1991-;92: $282,647
Total Spent, 1993=94: $426,852
Difference: $144,205 = 51.02% Rank: 66
Cooper Industries, Inc. Formed: 1979-;80
Total Spent, 1989-;90: $264,213
Total Spent, 1991-;92: $397,960
Difference: $133,747 = 50.62% Rank: 67
Flowers Industries, Inc. Formed: 1979-;80
Total Spent, 1993=94: $254,819
Total Spent, 1995-;96: $383,269
Difference: $128,450 = 50.41% Rank: 68
Source: Computer analysis by Sunshine Press Services of Federal
Election Commission data, Jan. 1, 1979 through Dec. 31,2000.
APPENDIX B: Publication List
The news organizations listed below have published news reports
or commentary by Edward Roeder
Daily Newspapers
Albuquerque Journal
Arizona Republic
Arkansas Gazette-Democrat
Atlanta Constitution *
Austin American-Statesman
Baltimore Sun *
Boston Globe *
Chicago Sun-Times *
Chicago Tribune *
Cleveland Plain Dealer
Dallas Morning News
Denver Post
Deseret News
Detroit Free Press*
Detroit News *
Florida Today
Fort Lauderdale News & Sun-Sentinel *
Greensboro News & Record *
Kansas City Star
Los Angeles Times
Louisville Courier-Journal *
Miami Herald *
Nashville Tennessean
New Orleans Times-Picayune
New York Daily News
New York Newsday
New York Times *
Orlando Sentinel *
Philadelphia Inquirer *
Portland Oregonian
Providence Journal
Richmond Times-Dispatch
Sacramento Bee *
San Jose Mercury News
Seattle Post-lntelligencer
Seattle Times *
St. Louis Post-Dispatch *
St. Petersburg Times *
Tampa Tribune
USA Today
Washington Post *
Washington Times
Articles ran on page 1 or led Sunday section
Periodicals
American Banker *
Capital Style
Conservative Digest *
Free Inquiry *
Monthly Business Review *
MS. *
New Republic *
New Times *
Newsweek
Playboy *
Politics Today *
Rolling Stone *
Saturday Review *
Sierra *
Space Business International *
The Nation *
Time
Village Voice *
Washington Monthly *
Washingtonian *
Bylined feature magazine articles
Broadcast
ABC News (TV) *
CBS News (TV) *
CNN *
Canadian Broadcast'g Co. (Radio) *
KABC-TV (Hollywood, CA) *
National Public Radio *
Nightline (ABC News- TV) *
NBC News (TV & Radio)
20-;20 (ABC News- TV)
WBAL-TV (Baltimore, MD)
WDIV-TV (Detroit, Mich.) *
WJLA-TV (Washington, DC) *
WJXT-TV (Jacksonville, Fla.) *
WJZ-TV (Baltimore, MD)
WPLG-TV (Miami, Fla.) *
WRC-TV (Washington, DC)
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MTC-00028685
From: David Robinson
To: Microsoft ATR
Date: 1/28/02 4:55pm
Subject: Microsoft Settlement
I disagree with the PFJ because it does not end Microsoft's
monopoly but may allow MS to extend and expand its monopoly!
Enforcement of the PFJ appears nearly impossible to enforce.
Thank you for considering my opinions.
Dave Robinson
407-;843-;3294, ext 227
MTC-00028686
From: Brooke Emmerick
To: `microsoft.atr(a)usdoj.gov''
Date: 1/28/02 4'58pm
Subject: Microsoft Settlement
BEFORE THE UNITED STATES DEPARTMENT OF JUSTICE
UNITED STATES OF AMERICA, Plaintiff,
v.
Civil Action No. 98-;1232 (CKK)
MICROSOFT CORPORATION, Defendant.
STATE OF NEW YORK ex rel.
Attorney General Eliot Spitzer, et al., Plaintiffs,
v
. Civil Action No. 98-;1233 (CKK)
MICROSOFT CORPORATION Defendant.
Comments of The Progress & Freedom Foundation on the Revised
Proposed Final Judgment and the Competitive Impact Statement
Jeffery A. Eisenach, Ph.D.
President
Thomas M. Lenard, Ph.D.
Vice President for Research
THE PROGRESS & FREEDOM FOUNDATION
1301 K. St., NW
Washington, DC 20005
(202) 289-;8928
(202) 289-;6079 Facsimile
Table of Contents
I. Introduction 1
A. Authors 1
B. Summary of Contents 2
II. Background: The Facts, the Law and the Remedy 5
A. The Illegal Conduct and Its Effects 5
B. The Appropriate Criteria for a Remedial Action 7
III. The CIS and the PFJ: Flawed Analysis of a Flawed Remedy 9
A. Major Provisions of the PFJ 9
B. The Competitive Impact Statement 10
C. The PFJ Will Not Have Its Claimed Effect, Nor Any Pro-
Competitive Effect 18
IV. The Remedies Alternatives 23
A. Alternative Structural Remedies 24
B. The Litigating States Proposal 29
V. Conclusion 31
I. Introduction
These comments on the Proposed Final Judgment\1\
(``PFJ'') and the Competitive Impact Statement\2\
(``CIS'') in the Microsoft case are submitted to provide
the Department of Justice (``DOJ'') and the Court with
information and analysis based on nearly five years of research by
the authors on the legal, policy and economic implications of this
landmark proceeding. Based on that research, it is our assessment
that (a) the PFJ fails to address meaningfully the violations of law
found by this court and upheld by the U.S. Court of Appeals and its
entry by the court manifestly is not in the public interest; (b) the
CIS fails to meet the standard of analysis demanded by the law and
occasioned by the magnitude of the issues involved; and (c) the
public interest will best be served through imposition of a
``hybrid'' structural remedy or, if the court chooses not
to impose a structural remedy, a conduct remedy modeled after the
proposals of the remaining litigating states.
A. The Authors
Dr. Eisenach is President and Senior Fellow at The Progress
& Freedom
[[Page 28402]]
Foundation,\3\ a non-profit research and educational institution
dedicated to analyzing the impact of the digital revolution and its
implications for public policy, and an Adjunct Professor at George
Mason University Law School. As a professional economist, he has
been actively engaged in the analysis of competition and regulatory
policy issues for more than 20 years, and has served in senior
positions at the Office of Management and Budget and the U.S.
Federal Trade Commission and as a consultant to the U.S. Sentencing
Commission on criminal sentencing guidelines for corporations. He
has also served on the faculties of Harvard University's Kennedy
School of Government, the University of Virginia and Virginia
Polytechnic Institute and State University.
---------------------------------------------------------------------------
\1\United States v. Microsoft Corp., Stipulation and
Revised Proposed Final Judgement (November 6, 2001) (hereafter
``PFJ'').
\2\United States v. Microsoft Corp., Competitive Impact
Statement (November 15, 2001) (hereafter ``CIS'').
\3\These comments reflect the views of the authors and do
not represent the views of The Progress & Freedom Foundation,
its officers or board of directors.
---------------------------------------------------------------------------
Dr. Lenard is Vice President and Senior Fellow at The Progress
& Freedom Foundation and a professional economist with 30 years
of experience in academia, government, private consulting and the
non-profit sector. He has worked on a wide range of regulatory and
antitrust issues covering a broad span of industries, and has
consulted on antitrust cases for both private firms and the Federal
Trade Commission. In government, he has held senior economic
positions at the Council on Wage and Price Stability, the Office of
Management and Budget and the Federal Trade Commission. A principal
focus of his research has been the benefits and costs of regulatory
interventions into the economy and the analytical underpinnings
needed to make informed decisions about government interventions.
Both Drs. Eisenach and Lenard have done extensive work on the
economics of high-tech markets in general, and the Microsoft case in
particular. They are co-authors of the annual Digital Economy Fact
Book,\4\ co-editors of Competition, Innovation and the Microsoft
Monopoly: Antitrust in the Digital Marketplace and authors of
numerous other papers on these and related topics.\5\
---------------------------------------------------------------------------
\4\See Jeffrey A. Eisenach, Thomas M. Lenard and Stephen
McGonegal, The Digital Economy Fact Book 2001 (Washington: The
Progress & Freedom Foundation, 2001).
\5\See Jeffrey A. Eisenach and Thomas M. Lenard, eds.,
Competition, Innovation and the Microsoft Monopoly: Antitrust in the
Digital Marketplace, Kluwer Academic Publishers, 1999; Thomas M.
Lenard, Creating Competition in the Market for Operating Systems: A
Structural Remedy for Microsoft, (Washington: The Progress &
Freedom Foundation, 2000), http://www.pff.org/remedies/htm; and
Thomas M. Lenard, ``Creating Competition in the Market
---------------------------------------------------------------------------
B. Summary of Comments
The PFJ is intended to settle the government's antitrust case
against Microsoft and was agreed to by the United States, 9 of the
18 states that were also party to suit, and by Microsoft. The nine
remaining states and the District of Columbia (the ``Litigating
States'') have not agreed to the PFJ and are pursuing more
stringent relief through a remedy hearing at the District Court.\6\
The DOJ is required by the Antitrust Procedures and Penalty Act
(``APPA'')\7\ to prepare a CIS, which is intended to
analyze the competitive implications of the PFJ and any alternatives
to it.
---------------------------------------------------------------------------
\6\United States v. Microsoft Corp., Plaintiff Litigating
States'' Remedial Proposals, (December 7, 2001) (hereafter
``LS Proposal'').
\7\15 USCS 16 (b-h).
---------------------------------------------------------------------------
The PFJ does not serve the public interest and will not achieve
the government's objective that it ``halt continuance and
prevent recurrence of the violations of the Sherman Act by Microsoft
that were upheld by the Court of Appeals and restore competitive
conditions to the market.``\8\ Indeed, much of the behavior
found by the Court of Appeals to be anticompetitive would be
permitted under the PFJ. Further, even if the PFJ did preclude such
behavior it would fail to restore competitive conditions because it
fails to affect the behavior of participants in the marketplace.
---------------------------------------------------------------------------
\8\CIS at 2.
---------------------------------------------------------------------------
The CIS does not satisfy the government's obligation to provide
the District Court with an analytical basis for determining whether
the PFJ is in the public interest. The APPA clearly requires, and
good public policy demands, an ``evaluation'' of the
proposed remedy and major alternatives to it. The CIS does not
present such an evaluation. It does not explain why the PFJ will
achieve the intended results, but merely asserts that it will do so.
It also does not explain why the DOJ concluded that the PFJ will
better serve the public interest than major alternatives, but merely
states that ``[t]he United States ultimately concluded that the
requirements and prohibitions set forth in the Proposed Final
Judgment provided the most effective and certain relief in the most
timely manner.``\9\ The DOJ has produced no real
analysis of the relative merits for Operating Systems: Alternative
Structural Remedies in the Microsoft Case,'' George Mason Law
Review, Vol., 9, Spring 2001, 803-;841. of alternative forms of
relief to guide the District Court in deciding whether to approve
the PFJ. Indeed, the CIS fails by a wide margin to meet the
standards required of analyses of regulatory proposals routinely
promulgated by government agencies.
---------------------------------------------------------------------------
\9\9 CIS at 63.
---------------------------------------------------------------------------
Accordingly, the District Court should not accept the PFJ, but
should, instead, expand its hearing on the Litigating States
Proposal (``LS Proposal'') to include the full range of
major alternatives. This would permit the District Court to gather
the information needed to make an informed judgment concerning which
of the remedy proposals will best serve the public interest. The
alternatives that should be considered include:
u The PFJ.
u The proposals of the Litigating States.
u Major structural remedies, including the vertical-divestiture
remedy initially adopted by the District Court and the
``hybrid'' remedy proposed by Dr. Lenard and others.
Among these remedies, the ``hybrid'' structural
approach would best serve the public interest and maximize net
economic benefits to consumers.
In the sections that follow, we provide, first, a brief
restatement of the facts and legal background in this case,
including a brief discussion of what we believe to be the
appropriate standards by which remedial action should be judged.
Next we discuss the shortcomings in the PFJ and the CIS, explaining
why the PFJ will not achieve the government's objectives or serve
the public interest and demonstrating that the CIS falls far short
of the analytical standard that should be demanded by the court.
Finally, we turn to an evaluation of the remedial alternatives and
explain why we believe that (a) a ``hybrid'' structural
remedy would best serve consumers and competition and (b) that if
the court chooses not to impose a structural remedy, the LS Proposal
is superior to the PFJ.
II. Background: The Facts, the Law and the Remedy
The U.S. District Court\10\ found, and the U.S. Court of
Appeals\11\ affirmed, a pattern of Sherman Act violations by
Microsoft that had the effect of foreclosing competition in the
market for personal computer operating systems. The District Court
ordered a structural remedy, which was overturned by the Appeals
Court, which remanded the remedy issue back to this court. The
Appeals Court did not prescribe or prohibit adoption of any
particular remedial actions by this court.
---------------------------------------------------------------------------
\10\United States v. Microsoft Corp., 84 F. Supp. 2d 9
(DCCirc 1999) (``Findings of Fact'');United States v.
Microsoft Corp., 87 F. Supp. 2d 30 (DC Circ. 2000)
(``Conclusions of Law'').
\11\United States v. Microsoft Corp., 253 F 3d, at 6 (DC
Circ. 2001).
---------------------------------------------------------------------------
A. The Illegal Conduct and Its Effects
The Appeals Court unanimously affirmed the core of the
government's case against Microsoft, finding that the company had
undertaken a broad array of anticompetitive practices to maintain
its monopoly in personal computer operating systems, in violation of
Section 2 of the Sherman Act.\12\ Microsoft's strategy was to use
its monopoly power to prevent the emergence of any new technology
that might compete with Windows. Microsoft's anticompetitive
activities were particularly directed against two products--;the
Netscape browser and Sun's Java programming language--;that
could support operating-system-neutral computing and thereby erode
Microsoft's market position. In summary, the District Court found,
and the Appeals Court affirmed, that:
---------------------------------------------------------------------------
\12\
---------------------------------------------------------------------------
Microsoft has monopoly power in the market for Intel-compatible
PC operating systems, with a market share of greater than 95
percent. Microsoft's market is protected by a substantial barber to
entry--;the ``applications barrier to
entry``--;that discourages software developers from writing
applications for operating systems that do not already have an
established base of users.
u Microsoft effectively excluded rival browsers from the two
most efficient means of distribution--;pre-installation by
Original Equipment Manufacturers (OEMs) and distribution by Internet
Access Providers (IAPs).
u Microsoft imposed restrictions on its Windows licenses that
effectively prevented OEMs from pre-installing any browser other
than Internet Explorer (IE).
[[Page 28403]]
u Microsoft's technological binding of IE to Windows deterred
OEMs from pre-installing rival browsers and consumers from using
them.
u Microsoft's contracts with IAPs--;for example, agreeing to
give AOL preferential placement on the Windows desktop in exchange
for AOL's agreement not to distribute any non-Microsoft browser to
more than 15 percent of its subscribers and to do so only at the
customer's explicit request--;blocked the distribution of a
rival browser.
u Microsoft's deals with Independent Software Vendors
(ISVs)--;for example, giving preferential support to ISVs that
used IE as the default browser in software they develop--;and
Apple--;prohibiting Apple from pre-installing any non-Microsoft
browser--;were similarly exclusionary.
u Microsoft's agreements with ISVs that made receipt of Windows
technical information conditional on the ISVs'' agreement to
use Microsoft's version of the Java Virtual Machine (JVM)
exclusively were anticompetitive. Microsoft also deceived Java
developers into believing that its tools were not Windows-specific
and were consistent with Sun's objective of developing cross-
platform applications.
u Microsoft's pressuring of Intel to stop supporting cross-
platform Java--;by threatening to support an Intel competitor's
development efforts--;was exclusionary.
Microsoft was clearly successful in its efforts to eliminate
threats to its desktop monopoly. Through its anticompetitive
activities, Microsoft achieved dominance in the browser market and
forestalled the development of such cross-platform technologies as
the Netscape browser and Java that could have eroded the
applications barrier to entry. The promise of operating-system-
neutral computing was that it would inject competition into the
market for operating systems, which would foster innovation
throughout the industry. By preventing the development of
competition, Microsoft's illegal conduct thwarted innovation and
harmed consumers.
B. Appropriate Criteria for a Remedial Action
The Supreme Court has stated that the purpose of remedial action
in an antitrust case is to ``terminate the illegal monopoly,
deny to the defendant the fruits of its statutory violation and
ensure that there remain no practices likely to result in
monopolization.``\13\ In other words, a remedy must be
effective in the present (terminating the monopoly), the past
(expropriating ill- gotten gains), and the future (preventing
similar conduct going forward).
---------------------------------------------------------------------------
\13\253 F 3d at 99-;100, quoting (United States v.
United Shoe Mach. Corp), 391 U.S. 244, 250 (1968).
---------------------------------------------------------------------------
As professional economists, we suggest it is especially
important to look to the future, where economic actors will make
decisions based on the incentives inherent in whatever remedy the
court imposes. The remedy should not only address the illegal
practices Microsoft already has employed to maintain its operating
system monopoly, it should also as the Supreme Court has
said--;address practices that Microsoft might employ in the
future to erect barriers to operating system competition or to use
anticompetitive practices to leverage its monopoly beyond the
desktop into new phases of computing. In a business that moves as
rapidly as the software marketplace (and other information
technology and communications markets Microsoft is now entering or
is likely to enter soon) it is particularly important that the
remedy be forward looking.
The DOJ claims that the PFJ meets these standards, and
``will eliminate Microsoft's illegal practices, prevent
recurrence of the same or similar practices, and restore the
competitive threat that middleware products posed prior to
Microsoft's unlawful undertakings.''\14\ For masons
discussed at length below, we disagree. Here, we address two issues
relating to the standard by which any remedy should be judged.
---------------------------------------------------------------------------
\14\CIS at 3.
---------------------------------------------------------------------------
First, it is noteworthy that the DOJ does not claim the PFJ
achieves the goal of denying Microsoft the fruits of its violations,
and clearly it will not. Such restitution is important not only to
``make whole'' the victims of Microsoft's illegal activity
(e.g., the United States), but also to establish appropriate
incentives on a going forward basis. In general, allowing violators
to retain the fruits of their illegal conduct deprives the antitrust
laws of much of their force, because it sends a signal to violators
that the returns to their behavior are positive--;even when they
are caught. With $42 billion in the bank, one wonders how
Microsoft's senior management could read the proposed PFJ any other
way.
Second, and relatedly, DOJ's stated goal of restoring ``the
competitive threat that middleware products posed prior to
Microsoft's unlawful undertakings'' is not the appropriate
objective, and certainly is not equivalent to the Supreme Court's
standard of ``terminat[ing] the illegal monopoly.'' The
competitive threat posed by the Netscape browser and Java was
quantitatively relatively small at the time that Microsoft's illegal
campaign against them was undertaken. But it was clear, certainly to
Microsoft, that their competitive potential in the dynamic software
marketplace was very significant. Had Microsoft not engaged in
illegal activities, the competitive significance of these products
would be much greater today than it was at the time.
There is a useful analogy here to simple commercial damage
cases. If, for example, an individual or a company incurs monetary
damages from actions in the past, compensation is generally based on
the present value of those damages, typically calculated by bringing
the damage amount forward (from the time of the damage to the
present) at a normal rate of return. That would be the only way for
the damaged party to be made whole. Similarly, society has been
damaged by Microsoft's actions. For society to be made whole,
competition should, to the extent possible, be restored to what it
would be today in the absence of Microsoft's illegal conduct,\15\
Equally important on a going forward basis, however, Microsoft
should not be permitted to earn continuing returns based upon its
illegally enhanced monopoly position. To do so would be to allow the
company not only to retain the fruits of its illegal conduct in the
past but to continue harvesting those fruits indefinitely.
---------------------------------------------------------------------------
\15\To truly be made whole in addition need to be
compensated for the benefits it lost due to the absence of
competition in the itnervening years, which is proably not possible.
---------------------------------------------------------------------------
III. The CIS and the PFJ: Flawed Analysis of a Flawed Remedy
DOJ and Microsoft prefer a PFJ which contains a number of
restrictions on Microsoft's conduct on a going forward basis. The
questions before the court are whether entry of the PFJ is
consistent with the purpose and intent of the Sherman Act and, in
addition, whether, under the APPA, it is consistent with the public
interest. To facilitate the court's deliberations on the latter
issue, the APPA requires the DOJ to submit a CIS.\16\ However, the
CIS submitted in this proceeding contains virtually no analysis of
either the PFJ or alternative remedies. It represents nothing more
than a set of unsupported assertions, and accordingly should be
given little deference by the court.
---------------------------------------------------------------------------
\16\CIS at 3-;4.
---------------------------------------------------------------------------
In this section, we briefly describe the main provisions of the
PFJ. Next, we explain why the CIS fails to meet a reasonable
standard of substantive analysis. Third, we provide some examples of
shortcomings in the PFJ which would have been obvious had DOJ
performed a more complete analysis in the CIS.
A. Major Provisions of the PFJ
As described in the CIS, the proposed PFJ contains seven major
provisions. In brief summary, they are:
. OEMs would have the freedom to support and distribute non-
Microsoft middleware products or operating systems without fear of
retaliation by Microsoft.
. To help ensure against retaliation, Microsoft would be
required to provide uniform licensing terms to the 20 largest
computer manufacturers.
. Computer manufacturers would have the freedom to feature and
promote non-Microsoft middleware and customize their computers to
use non-Microsoft middleware as the default.
. Microsoft would be required to disclose the interfaces and
technical information that its own middleware uses, so that ISVs can
develop competitive middleware products.
. Microsoft would be required to disclose communications
protocols necessary for server and Windows desktop operating system
software to interoperate with each other.
. Microsoft would be prohibited from retaliating against ISVs or
IHVs that develop or distribute software that competes with
Microsoft middleware or operating system software.
. Microsoft would be prohibited from entering into exclusive
contracts concerning its middleware or operating system products.
The CIS claims that these provisions, and the supporting
provisions pertaining to enforcement, ``will eliminate
Microsoft's illegal practices, prevent recurrence of the same or
similar practices, and restore the competitive threat that
middleware products posed prior to Microsoft's unlawful
[[Page 28404]]
undertakings.'' But the CIS presents virtually no analysis to
support this claim.
B. The Competitive Impact Statement
The CIS does not meet the standards established by the APPA and
does not provide sufficient analysis for this court to make an
informed decision on whether the PFJ is in the public interest.
Section 16(b)(3) of the APPA requires that the CIS include
``an explanation o* the proposal ... and the anticipated
effects on competition of such relief.'' (Emphasis added.)
Section 16(b)(6) further requires ``a description and
evaluation of alternatives to such proposal actually considered by
the United States.'' (Emphasis added). Under Section 16(e), the
District Court is required to determine that the consent judgment is
in the public interest and in making that determination ``may
consider...anticipated effects of alternative remedies ....''
Taken together, these provisions make clear that the CIS was
intended by Congress to serve as a guide to the court in evaluating
the proposed relief relative to other alternatives which might
better serve the public interest, not simply as a pro forma set of
claims and assertions. Yet the CIS in this case fails even to fully
``explain,'' and certainly cannot be said to
``evaluate,'' either the likely effects of either the PFJ
or the available alternatives. Such an analysis would seem
especially important in a fully-litigated Tunney Act case such as
this one, where a prior finding of liability suggests a lower degree
of deference to the PFJ than would otherwise be appropriate, and
thus a higher burden on the court to evaluate alternatives.
How should the court evaluate the adequacy of the CIS? Three
sets of criteria present themselves. First, does the CIS satisfy the
plain language of the statute? Second, how does it compare with
previous CIS's in similarly significant cases? Third, how does it
compare with the standards of analysis that are required to be
performed in similar situations, such as agency rulemakings? This
CIS fails all three standards.
First, does the CIS satisfy the plain language of the statute?
It depends on how the words ``explain,'' and
``evaluate'' are defined. To defend successfully the
plain-language adequacy of the CIS, the DOJ would have to adopt a
very narrow interpretation of both words.
Granted, the CIS devotes 43 pages\17\ to reciting and,
DOJ presumably would argue, ``explaining'' the provisions
of the PFJ. What the CIS does not do at any point, however, is
explain ``the anticipated effects [of the PFJ] on
competition.''
---------------------------------------------------------------------------
\17\CIS, 17-;60.
---------------------------------------------------------------------------
The semantic sleight of hand upon which DOJ relies to avoid this
obligation is found on page 24 of the CIS. There, DOJ reminds us
that ``Restoring competition is the `key to the whole
question of an antitrust remedy,'' du Pont, 366 U.S. at
326.'' Then it continues with a clever subterfuge:
``Competition was injured in this case principally because
Microsoft's illegal conduct maintained the applications
barrier to entry .... Thus, the key to the proper remedy in this
case is to end Microsoft's restrictions on potentially threatening
middleware....''\18\ (Emphasis added.)
---------------------------------------------------------------------------
\18\CIS at 24.
---------------------------------------------------------------------------
There, in the word ``thus,'' lies the sum and the
entirety of the CIS's explanation of the connection between the PFJ
and its anticipated effects on competition. For as explained in more
detail below, it is hardly obvious, indeed, it is highly unlikely,
that simply ending Microsoft's illegal restrictions on middleware
would have any significant effect on competition on a going forward
basis. Even in these semantically troubled times, we submit, the
word ``thus'' cannot be taken as the
``explanation'' the law requires.
But the CIS's discussion of the PFJ must be counted an
analytical masterpiece when compared with its treatment of
alternative remedies. In contrast to the lengthy, if failed,
treatment accorded the PFJ, the CIS attempts its ``evaluation
of alternatives'' in three pages. Not surprisingly, given its
brevity, the analysis is limited in how much light it can shed on
the DOJ's decisionmaking process or the relative merits of the
alternatives before the court. With respect to structural remedies,
for example, the evaluation consists of 49 words: ``After
remand to the District Court, the United States informed the court
and Microsoft that it had decided, in light of the Court of Appeals
opinion and the need to obtain prompt, certain and effective relief,
that it would not further seek a breakup of Microsoft into two
businesses.''\19\ Receiving even less attention are six
other remedy alternatives, which are summarily dismissed in a single
paragraph, and an unknown number of ``others received or
conceived'' which, in apparent direct violation of the APPA,
are not even described.\20\ There simply is no semantic standard by
which this treatment of the alternative remedies can possibly be
considered ``an evaluation.''
---------------------------------------------------------------------------
\19\CIS at 61.
\20\CIS at 63.
---------------------------------------------------------------------------
In summary, the CIS submitted by the DOJ in this case fails the
first test the court should apply: It does not fulfill the plain
language requirements of either Section 16(b)(3) or Section 16(b)(6)
of the APPA.
Any effort the DOJ may make to defend the CIS would be on firmer
ground if it could argue it is simply following past practice. While
we believe, as suggested above, that the CIS in this case should be
held to a higher standard than in cases where the issues have not
been fully litigated and a finding of liability has not been
entered, at least the DOJ could claim it was adhering to precedent.
Even by the standards of past cases, however, this CIS falls far
short.
Of course, Tunney Act cases vary in significance and complexity.
The best standard for comparison for this case would appear to be
the CIS filed in the AT&T case in 1982.\21\ In that case as in
this one, DOJ was tasked with explaining and evaluating a Proposed
Final Judgment aimed at resolving a continuing series of complex
antitrust actions affecting one of the most important sectors, and
companies, in the U.S. economy.
---------------------------------------------------------------------------
\21\United States v. Western Electric Company, Inc. and
American Telephone & Telegraph Company, Competitive Impact
Statement (February 17, 1982), 47 FR 7170-;01. (Hereafter
AT&T CIS). Of course, unlike this case, the PFJ in the AT&T
case was entered prior to any finding of liability.
---------------------------------------------------------------------------
The AT&T CIS differs markedly from the CIS in this
proceeding both in its explanation of the competitive effects and in
its evaluation of alternative remedies. Section III of the AT&T
CIS\22\ presents a comprehensive explanation of the proposed
remedy and its anticipated effects on competition. Indeed, in stark
contrast to the CIS in this case, the AT&T CIS contains, in
Section III.E, an extensive discussion specifically detailing
``The Competitive Impact of the Proposed Modification.''
The section is a lengthy one, explaining in detail how each
provision of the proposed remedy is expected to affect competition
on a going forward basis, beginning as follows:
---------------------------------------------------------------------------
\22\AT&T CIS at 7173-;7180.
---------------------------------------------------------------------------
Put in simplest terms, the functional divestiture contemplated
by the proposed modification will remove from AT&T the power to
employ local exchange services in ways that impede competition in
interdependent markets, and will remove from the Bell Operating
Companies (``BOCs''), which will retain such power, any
incentive to exercise it. The United States believes, therefore,
that the modification's divestiture requirement, and its
complementary injunctive provisions, will substantially accelerate
the development of competitive markets for interexchange services,
customer premises equipment, and telecommunications equipment
generally.\23\
---------------------------------------------------------------------------
\23\23 AT&T CIS at 7178.
---------------------------------------------------------------------------
The ensuing pages present a careful analysis of why the
government believes this to be the case and what the precise impacts
on competition are likely to be. The proposed remedy will
``accelerate the emergence of competition in interexchange
services,''\24\``prevent the reemergence of the ...
incentive and ability to leverage regulated monopoly power into the
customer premises equipment market,''\25\ make AT&T
``subject to competition in all of its
services,''\26\ ``remove the source of AT&T's
monopoly power and its ability to leverage monopoly power into
related markets,''\27\ and ``prevent the creation
anew of incentives and abilities in the BOCs to use their monopoly
power to undercut rivals in competitive markets.''\28\
``There is every reason to believe that, divested of the BOCs,
AT&T will be a procompetitive force in the markets that it
enters. As a result of the modification, it is likely that AT&T
will expand not only its product lines, but also the areas in which
it sells telecommunications equipment.''\29\
---------------------------------------------------------------------------
\24\AT&T CIS at 7178.
\24\AT&T CIS at 7179.
\24\AT&T CIS at 7179.
\24\AT&T CIS at 7179.
\24\AT&T CIS at 7179.
\24\AT&T CIS at 7179.
---------------------------------------------------------------------------
The authors have searched in vain, as will the court, for any
similar explanation in the Microsoft CIS. As a procedural matter,
the absence of such explanations flies in the face of the APPA. As a
substantive one, it strongly suggests such statements are lacking
for the simple reason that they are not justified by the remedy
Microsoft and the DOJ are asking the court to adopt.
[[Page 28405]]
The AT&T CIS also differs from the one in this case in its
treatment of alternative remedies.\30\ The AT&T CIS appears to
meet the requirements of the APPA by describing in some detail the
alternative remedies considered and evaluating their likely impacts
on competition relative to those expected from the one proposed.
``The United States believes,'' it concludes, ''that
the [main alternative] did not approach even remotely the
effectiveness of the proposed modification in achieving conditions
that would assure full competition in the telecommunications
industry.''\31\ Again, such evaluative language is
simply absent from the CIS in this case. And again, one cannot help
but conclude that, had today's DOJ conducted the same careful
analysis as that conducted 20 years ago, it might well have reached
different conclusions in the current case.
---------------------------------------------------------------------------
\30\30 AT&T CIS at 7181.
\31\AT&T CIS at 7181.
---------------------------------------------------------------------------
In summary, then, the CIS not only fails the satisfy the plain
language of the APPA, but also fails to meet the standard
established by DOJ for a CIS in the most directly analogous case.
The third criteria by which the court should evaluate the
sufficiency of the CIS is whether it meets the standards of analysis
that are required to be performed in similar situations, the most
obvious of which is agency rulemakings.
For at least the last 20 years, agencies have been required to
undertake a detailed regulatory impact analysis when they propose
major regulatory actions. Under E.O. 12291 (in effect during the
Reagan and Bush Administrations), and E.O. 12866 (issued by
President Clinton and still in effect), government agencies have
been expected to prepare a detailed analysis of the expected
benefits and costs of major regulatory proposals and alternatives to
them.\32\ While the PFJ is technically not a regulation that would
fall under E.O. 12866, the magnitude of its impact far exceeds the
$100 million threshold that defines a ``major rule'' and
thus triggers the requirement for a detailed analysis.
---------------------------------------------------------------------------
\32\32 See E.O. 12291 (February 17, 1981) and E.O. 12866
(September 30, 1993).
---------------------------------------------------------------------------
The analysis of regulatory interventions in the economy, which
is what the PFJ in this case is, is not a black art. Increasingly,
and on the basis of more than two decades of performing such
analyses of all major rules, regulatory analysis has become a
scientific process comprised of distinct steps and containing
specific elements. E.O. 12866, for example, lays out specific
criteria such analyses should meet, including: ``(i) An
assessment, including the underlying analysis, of benefits
anticipated from the regulatory action (such as, but not limited to,
the promotion of the efficient functioning of the economy and
private markets ....) together with, to the extent feasible, a
quantification of those benefits; (ii) An assessment, including the
underlying analysis, of costs anticipated from the regulatory action
... together with, to the extent feasible, a quantification of those
costs; and (iii) An assessment, including the underlying analysis,
of the costs and benefits of potentially effective and reasonably
feasible alternatives to the planned regulation ....''
The specific analytical techniques to be used in such
evaluations are further described in guidance from the Office of
Management and Budget issued January 11, 1996,\33\ and reiterated
most recently by OMB on June 19, 2001.\34\ These guidelines require
agencies, before issuing any major regulation, to take into account
such issues as whether more ``performance oriented''
approaches are possible, the impact of alternative levels of
stringency and effective dates, and alternative methods of ensuring
compliance, and to perform evaluations that take into account
``discounting,'' ``risk and uncertainty,'' and
``non-monetized benefits and costs.'' Each analysis, the
guidance demands, must ``provide information allowing
decisionmakers to determine that: There is adequate information
indicating the need for and consequences of the proposed action; The
potential benefits to society justify the potential costs ...; The
proposed action will maximize the net benefits to society...; [and]
.... Agency decisions are based on the best reasonably available
scientific, technical, economic, and other information.''
---------------------------------------------------------------------------
\33\Office of Management and Budget, Economic Analysis of
Federal Regulations Under Executive Order 12866 (January 11,
1996)(available at www.whitehouse.gov/omb/inforeg/riaguide.html).
\34\Office of Management and Budget, Memorandum for the
Heads of Executive Departments and Agencies: Improving Regulatory
Impact Analyses (June 19, 2001)(available at www.whitehouse.gov.omb/
memoranda/m01- 23.html) The requirements of the APPA with respect to
Competitive Impact Statements are, of course, far less specific than
those listed above. But the purpose of the APPA in requiring a CIS
is presumably similar to the purpose of regulatory analyses: To
allow decisionmakers, in this case the court, to understand the
ramifications of their actions relative to alternative choices. By
the standards of modem policy analysis, DOJ's CIS fails to perform
this function at the level the court should expect, especially in a
case of this magnitude. Office of Management and Budget, Memorandum
for the Heads of Executive Departments and Agencies: Improving
Regulatory Impact Analyses (June 19, 2001)(available at
www.whitehouse.gov.omb/memoranda/m01- 23.html)
---------------------------------------------------------------------------
To repeat what we asserted at the outset of this section, the
court might evaluate the CIS in this case by three standards: First,
does the CIS satisfy the plain language of the statute? Second, how
does it compare with previous CIS's in similarly significant cases?
Third, how does it compare with the standards of analysis that are
required to be performed in similar situations, such as agency
rulemakings? This CIS fails all three standards.
C. The PFJ Will Not Have Its Claimed Effect, Nor Any Pro-
Competitive Effect
In fact, a close reading of the language of the PFJ indicates
that it will not do what the DOJ claims. Moreover, even if DOJ's
claims are taken at face value, the PFJ will not have its intended
effect because of the realities of the marketplace. Indeed, this is
the only conclusion that can be reached based upon a real analysis
of the ``competitive impact'' of the PFJ, which is to say
an analysis of how, if at all, the provisions of the PFJ will change
the behavior of participants in the marketplace.
Other commentators will undoubtedly thoroughly catalogue the
loopholes in the PFJ, of which there are many, and it is not our
intention to do so here. It is, however, illustrative of the defects
of the PFJ to analyze it through the lens of the Netscape browser
experience, since so much of Microsoft's liability concerns its
actions toward the Netscape browser. Accordingly, much of the PFJ is
directed at precluding the type of anticompetitive acts that
Microsoft undertook against Netscape (even though the browser war is
over and the industry has now moved on to a different stage). But,
the PFJ does not even succeed in this minimal goal--;of creating
the conditions under which the Netscape browser could have competed
without being subject to Microsoft's exclusionary practices. Indeed,
the PFJ specifically permits many of the exclusionary practices in
which Microsoft engaged:
. Section III.A of the PFJ is supposed to protect OEMs from
retaliation by Microsoft if they distribute non-Microsoft products.
However, the language of Section III.A prohibits Microsoft from
retaliating against an OEM for ``developing, distributing,
promoting, using, selling, or licensing any software that competes
with Microsoft Platform Software or any product or service that
distributes or promotes any Non-Microsoft Middleware.''
(Emphasis added). (Microsoft Platform Software is defined as
including (i) a Windows Operating System Product and/or (ii) a
Microsoft Middleware Product.) While the Netscape browser was a
potential competitor for the Microsoft operating system, it never
became an actual competitor. Moreover, at the time Netscape
introduced its browser, Microsoft did not have a comparable
Middleware Product. Thus, the language of III.A would have permitted
Microsoft to retaliate against OEMs for distributing the Netscape
browser at the time it was introduced.
. Similarly, Section III.F. 1 prohibits Microsoft from
retaliating against any ISV or IHV for ``developing, using,
distributing, promoting or supporting any software that competes
with Microsoft Platform Software or any software that runs on any
software that competes with Microsoft Platform Software
....''(Emphasis added). The prohibitions in Section III.F.2 on
Microsoft's relations with ISVs are also triggered by software that
``competes with Microsoft Platform Software'', which the
Netscape browser did not initially do.
. Section III.G.2 is intended to prevent similar exclusionary
behavior with respect to IAPs and ICPs, by prohibiting Microsoft
from entering into any agreement with ``any IAP or ICP that
grants placement on the desktop or elsewhere ... on the condition
that the IAP or ICP refrain from distributing, promoting or using
any software that competes with Microsoft Middleware.''
(Emphasis added). Again, Netscape's browser was a new product that
did not compete with any Microsoft product at the time it was
introduced.
. Section III.C is intended to prevent restrictive agreements
with OEMs by, for
[[Page 28406]]
example, preventing Microsoft from restricting the ability of its
OEM licensees from ``[l]aunching automatically ...any Non-
Microsoft Middleware if a Microsoft Middleware Product that provides
similar functionality would otherwise be launched ....'' (See
Section III.C.3, emphasis added). Under this language, Microsoft can
preclude its OEM licensees from permitting the automatic launch of a
new product if Microsoft does not have a similar product or if the
Microsoft product does not have ``similar functionality''
(obviously, a term open to interpretation). Again, when the Netscape
browser was launched, Microsoft did not have a similar product.
. Section III.D is intended to preclude Microsoft from excluding
rival products by denying them the technical information they need
to interoperate with the Windows operating systems. It requires
Microsoft to ``disclose to ISVs, IHVs, IAPs, ICPs, and OEMs,
for the sole purpose of interoperating with a Windows Operating
System Product ... the APIs and related Documentation that are used
by Microsoft Middleware to interoperate with a Windows Operating
System Product.'' (Emphasis added). If, however, Microsoft does
not produce an analogous product, it might not use the APIs needed
for a new application, such as the Netscape browser, to get started.
. Section III.H contains a variety of provisions designed to
enable choice of Non-Microsoft Middleware Products on the part of
users and OEMs. The PFJ explicitly states, however, that
``Microsoft's obligations under this Section III.H as to any
new Windows Operating System Product shall be determined based on
the Microsoft Middleware Products which exist seven months prior to
the last beta test version (i.e., the one immediately preceding the
first release candidate) of that Windows Operating System
Product.'' At the time the Netscape browser was introduced,
there was no comparable Microsoft Middleware Product.
. Finally, Non-Microsoft Middleware Products are defined to
include products ``of which at least one million copies were
distributed in the United States within the previous year.''
(Section VI.N). Thus, regardless of any of the other provisions, the
PFJ permits exclusionary behavior against new products that are
trying to get established.
In sum, under the provisions of the PFJ Microsoft would have
been permitted to engage in anticompetitive practices against the
Netscape browser because the browser did not compete against the
Windows operating system and because Microsoft did not at the outset
have a comparable product. Moreover, at least in the early stages,
the Netscape browser would not have been covered because a million
copies had not been distributed in a single year. The DOJ obviously
feels that the fabled entrepreneurs of Silicon Valley, working in
their garages, are not worthy of protection against Microsoft under
the PFJ. It is especially ironic that Microsoft, which has dedicated
so much rhetoric to persuading the courts and the public that its
monopoly could be overturned at any moment by the proverbial
entrepreneur working out of her garage, should seek to preserve the
right to squash precisely such competitive threats. More broadly,
the requirement that Microsoft have a comparable product in order to
trigger some of the PFJ's provisions creates perverse incentives. It
may discourage Microsoft from introducing its own product, because
to do so triggers provisions restricting its ability to exclude a
potential competitor. The result could be that consumers would be
deprived entirely of a useful middleware product that might
potentially compete with the Windows operating system, because
Microsoft is able to engage in exclusionary practices against
another firm and does not find it in its interest to introduce its
own product.
But the PFJ is flawed at an even deeper level: Even if it did
what DOJ and Microsoft say it would, its effect on firms that
operate in Microsoft's markets and its ability to restore
competition in those markets would be minimal at most. Most of the
PFJ is intended to prevent Microsoft from retaliating against OEMs,
ISVs, IAPs and others that distribute, develop or otherwise support
software that competes with Microsoft middleware. Under the terms of
the PFJ, however, these entities would have little incentive to
promote competitive middleware.
This is principally because, despite the Appeals Court ruling
that Microsoft's integration of the browser and the operating system
was anticompetitive, the PFJ would allow Microsoft to continue to
bundle its middleware (and other) products with its operating
system. Indeed, Microsoft's new XP software incorporates new
functionality into the Windows operating system as never before. It
includes, among other things, the IE browser, Microsoft's instant
messaging and email software, Windows Media Player and the Microsoft
Passport digital authentication software. All of these functions are
bundled together and the combined package is sold at a fixed price.
Thus, OEMs have virtually no incentive to customize their
offerings with non-Microsoft software. To do so involves an
additional cost for the non-Microsoft software when compariable
functionality is provided by Microsoft at no additional cost. An OEM
that did this would have to pass these added costs on to its
customers and would likely lose sales to other OEMs. Obviously, if
OEMs don't have the incentive to install non-Microsoft software,
ISVs won't have the incentive to develop it and IAPs won't have the
incentive to distribute it.
As a result, the PFJ will not have any significant pro-
competitive impact in the markets for either middleware or PC
operating systems. Nor, for the same reasons, is it likely to have
any significant pro-competitive impact on newly emerging markets,
such as voice-over-IP instant messaging, game boxes, e-commerce
technologies (e.g., ``Passport'') or digital rights
management technologies. Indeed, the inability to make any plausible
claims for such pro- competitive effects is the most likely
explanation for the fact that, in contrast to the AT&T CIS, the
CIS in this case doesn't make any.
IV. The Remedy Alternatives
There are two general classes of remedies that can be employed
to remedy Microsoft's antitrust violations--;conduct remedies
and structural remedies. Conduct remedies leave Microsoft intact and
attempt to constrain its anticompetitive behavior by imposing a set
of behavioral requirements--;essentially, a regulatory regime
tailor-made for one firm. Microsoft's structure--;and,
importantly, its incentives--;remain largely the same.\35\ The
challenge is to develop rules that effectively deter anticompetitive
behavior, given that such behavior might continue to be in
Microsoft's interest. The PFJ, which relies on conduct remedies,
will not be effective in deterring anticompetitive behavior on the
part of Microsoft.
---------------------------------------------------------------------------
\35\35 Microsoft's incentives would be modified to the
extent it faces legal penalties, but those penalties would have to
be very large to have a significant effect on Microsoft's
incentives.
---------------------------------------------------------------------------
Structural relief takes a different approach. Structural relief,
as the name implies, involves restructuring the firm so as to change
its incentives and ability to act anticompetitively. As DOJ
explained eloquently in the AT&T CIS, if a restructuring is
successful in achieving those goals, behavioral restrictions are
largely unnecessary. The Appeals Court noted that structural relief
is a common form of relief in antitrust cases and is ``the most
important of antitrust remedies.''\36\
---------------------------------------------------------------------------
\36\253 F 3d at 103, quoting United States v. E.I. du
Pont de Nemours & Co., 366 U.S. 316, 331 (1961).
---------------------------------------------------------------------------
In this section, we describe the alternative structural remedies
available to the court. Then we offer an evaluation of the proposals
offered by the remaining litigating states.
A. Alternative Structural Remedies
At the government's urging, the District Court initially adopted
a structural remedy, supplemented by interim conduct
relief.\37\ The Appeals Court vacated the District Court's
remedy, partly because it modified the District Court's liability
finding and partly because the District Court had failed to hold an
evidentiary hearing.\38\ The Appeals Court did not, however,
rule out a structural solution to this case. The Court directed that
``the District Court also should consider whether plaintiffs
have established a sufficient causal connection between Microsoft's
anticompetitive conduct and its dominant position in the OS
market.''\39\ It continued, ``[i]f the court on
remand is unconvinced of the causal connection between Microsoft's
exclusionary conduct and the company's position in the OS market, it
may well conclude that divestiture is not an appropriate
remedy.''\40\* This is an issue that should be explored
in an evidentiary hearing.
---------------------------------------------------------------------------
\37\United States v. Microsoft Corp., 97 F Supp-2d.
(DCCirc. 2000) ``Final Judgement''.
\38\253 F 3d at 6.
\39\253 F 3d at 105.
\40\253 F 3d at 105-;6..
---------------------------------------------------------------------------
While it is difficult to predict exactly how the industry would
have developed in the absence of Microsoft's anticompetitive
behavior, it is likely that an alternative to Microsoft's operating-
system platform would have emerged and it is a virtual certainty
that Microsoft's position would be far less dominant than it is
today. Clearly, Microsoft thought that was a distinct possibility.
[[Page 28407]]
The causation between Microsoft's anticompetitive practices and
its operating system monopoly runs both ways. Without its monopoly,
Microsoft would have been unable to engage in the exclusionary
practices documented by the District Court and affirmed by the
Appeals Court. Moreover, because of the wide array of business
practices at issue and the complexity of the industry, it is very
difficult to fashion a conduct relief regime that will be effective
if Microsoft retains its dominant market position. This is why the
Department of Justice (initially) and others (including ourselves)
favor a structural solution. Two different forms of structural
solution have been proposed, which we review in turn.
The DOJ initially proposed, and the District Court initially
ordered, a vertical divestiture, which would divide Microsoft along
product lines, into an operating systems company and an applications
company.\41\ The DOJ argued that this remedy would create two
powerful companies that would have the incentive to compete with
each other, diminishing the market power of both. According to
Timothy Bresnahan, Chief Economist at the Antitrust Division at the
time, ``divestiture of the company into an applications and an
operating system company restores competitive conditions very like
those destroyed by the anticompetitive acts. Absent the
anticompetitive acts, Microsoft would have lost the browser war, and
other finns would have commercialized useful technologies now
controlled by Microsoft. Divided technical leadership, which could
be accomplished by having an independent browser company in the late
1990s or an applications company now, lowers barriers to entry and
competition in many markets. It was exactly this route to an
increase in competition that Microsoft avoided by its
anticompetitive acts. Second, ending Microsoft's unique position in
the industry offers innovative new technologies the choice of two
mass-market distribution partners, either Appsco [the applications
company] or OSCo [the operating system company]. The divestiture
will do much to reduce the motive to violate and also to reduce the
effectiveness of future anticompetitive acts. It restores conditions
for competitive innovation at a moment in technology history [i.e.,
when the Internet is starting to be commercialized] when having a
single firm set the direction of innovation in PC and end-user
oriented internet markets is most unwise.''\42\
---------------------------------------------------------------------------
\41\41 Final Judgement at 2.
\42\Timonthy F. Bresnahan, ``The Right
Remedy,'' at 1, (available at www.stanford.edu/tbres/microsoft/
The Right Remedy.pdf).
---------------------------------------------------------------------------
Similarly, the Department of Justice, in initially proposing
this remedy, argued that separating the operating system from the
applications company would ``reduce the entry barriers that
Microsoft's illegal conduct erected and make it less likely that
Microsoft [would] have the incentive or ability to increase them in
the future.''\43\ An independent applications company
would have every incentive to support competitors to Windows rather
than make decisions based on the level of threat those competitors
pose to Microsoft.\44\ A separate applications company would have
appropriate incentives to port its products to competing operating
systems, such as Linux, thereby lowering the applications barrier to
entry that potential competitors face. Currently, Microsoft has an
incentive to strategically withhold applications from actual or
potential competitors, even if providing them would otherwise be
economically justified. In addition, the applications company would
have the incentive to make its tools available to Independent
Software Vendors (ISVs) that cooperate with competing operating
system providers.
---------------------------------------------------------------------------
\43\Plantiffs'' Memorandom in support of Proposed
Final Judgement at 30-;43, Microsoft (No. 98-;1232),
available at http://www.usdoj.gov/atr/cases/f4600/4640.htm.
\44\United States v. Microsoft Corp., 147 F 3d 935
(DCCirc. 1998) Romer Declaration # 4, (hereafter Romer).
---------------------------------------------------------------------------
Separate operating system and applications companies would make
it possible for middleware technologies in the applications company
to be competitive with Windows. When applications are written to
middleware technologies, like the Netscape browser, which operate
between the applications software and the operating system, they
become operating system neutral,\45\ reducing the applications
barrier to entry and facilitating competition with Windows. There
are several desktop applications, including Microsoft Office, that
expose APIs and could become important middleware technologies.
---------------------------------------------------------------------------
\45\45 Romer at 13.
---------------------------------------------------------------------------
Of course, a vertical divesture now would have a somewhat
different effect than when it was first adopted by the District
Court, because Microsoft has bundled many more applications into its
new XP operating system. If the District Court again decided to
adopt this remedy, it would also have to decide whether to require
Microsoft to remove some applications functionality from its XP
operating system or permit it to remain as is. If the XP operating
system were allowed to remain as is, applications that would
previously have been part of the applications company would be part
of the operating system company. However, significant
applications--;principally, Microsoft Office--;still remain
separate from the operating system.
The alternative to a vertical approach is what we term a
``hybrid'' structural remedy, which combines both vertical
and horizontal elements. A purely horizontal divestiture would
divide Microsoft into several vertically integrated companies, each
with full rights to Microsoft's intellectual property, creating
several sellers of Windows as well as Microsoft's other software
products. This remedy arguably goes beyond what is necessary or
could be justified as matter of law, since it divides up products
that were not the subject of the case.
A number of commentators, including Dr. Lenard, have proposed a
``hybrid'' remedy, which has elements of both vertical and
horizontal divestiture.\46\ It goes a step beyond the vertical
divestiture remedy that the District Court adopted by first
separating the operating systems company from the applications
company and then creating three equivalent operating system
companies.
---------------------------------------------------------------------------
\46\See Thomas M. Lenard, Creating Competition in the
Market for Operating Systems: A Structural Remedy for Microsoft, (
Washington: Progress & Freedom Foundation, 2000) http://www.pff,
org/remedies/htm; Remedies Brief of Amici Curiae Robert E. Litan et
al., 2000; Thomas M. Lenard, ``Creating Competition in the
Market for Operating Systems: Alternative Structural Remedies in the
Microsoft Case,'' George Mason Law Review, Vol. 9., Spring
2001.
---------------------------------------------------------------------------
Microsoft's bundling of more applications functionality into the
new XP operating system strengthens the arguments for the hybrid
remedy relative to other remedies. The PFJ (as discussed above) does
not contain any restrictions on bundling, which will hinder its
effectiveness dramatically. In addition, as more applications are
moved into the operating system, the vertical divestiture becomes
less able to restore the competitive balance, because the newly
formed applications company would be a less powerful competitor.
By creating competing Windows companies, the hybrid remedy
directly addresses the monopoly problem, which is the source of
Microsoft's anticompetitive behavior. As indicated above, without
the monopoly, Microsoft would never have been able to exclude the
Netscape browser from the most effective means of
distribution--;OEMs and IAPs. It would not, for example, have
been able to get the OEMs to refrain from pre-installing the
Netscape browser as a condition for receiving a Windows license.
Similarly, Microsoft would not have been able to extinguish the
market for a competing browser by bundling the Windows operating
system with IE. Microsoft would not have been able to do these
things--;which are at the core of the Appeals Court's liability
finding--;because the OEMs and the IAPs would have had
competitive alternatives to which they could turn.
The hybrid remedy would eliminate the applications barrier to
entry for the new Windows companies and deprive Microsoft of its
ability to leverage its desktop monopoly into new markets. Because
it really does restore competition, extensive behavioral
restrictions are not required, making this the least regulatory of
the available alternatives.
The hybrid remedy is to a significant extent an
``intellectual property'' remedy, requiring Microsoft to
grant full intellectual property rights to its Windows Operating
System to two new companies. This type of remedy is particularly
suited to ``new-economy'' companies like Microsoft, whose
assets consist primarily of informational capital, which can easily
be replicated.\47\ The rationale for going further and dividing up
employees is that much of the intellectual property is embodied in
the employees.\48\ In contrast to traditional ``old-
economy''
[[Page 28408]]
companies, however, there is very little physical capital to be
divided up.
---------------------------------------------------------------------------
\47\Remedies Brief of Amici Curiae Robert E. Litan et
al., 2000.
\48\Thomas M. Lenard, Creating Competition in the Market
for Operating Systems: A Structural Remedy for
Microsoft,(Washington,: Progress & Freedom Foundation, 2000)
http://www.pff.org/remedies/htm.
---------------------------------------------------------------------------
This factor should alleviate some of the concerns expressed in
the Appeals Court opinion about the use of a structural remedy in
the case of a ``unitary company``--;i.e., a company
not formed by mergers and acquisitions.\49\ Such concerns have more
validity in the case of old- economy companies, because of the
difficulty of dividing up physical capital. What is being proposed
in the hybrid remedy is much closer to a reproduction than it is to
a division of the company's assets. When those assets consist
primarily of information, they can be reproduced at very low cost.
---------------------------------------------------------------------------
\49\49 253 F 3d at 103.
---------------------------------------------------------------------------
B. The Litigating States Proposal
We believe a structural remedy continues to offer the best hope
of deterring Microsoft's anticompetitive behavior in a way that is
not overly regulatory. If, however, a structural remedy is off the
table, the conduct remedy proposed by the Litigating States (LS) is
far better than the PFJ. The LS Proposal does not contain the
obvious loopholes and exceptions that are pervasive in the PFJ.
Moreover, the LS Proposal includes a number of provisions that can
partially restore competition to what it might have been absent the
anticompetitive behavior. Because it will change the behavior of the
participants in the market, the LS Proposal provides a serious
remedy to Microsoft's offenses. Some of the attractive features of
the LS proposal are as follows:
� In contrast to the PFJ, the LS Proposal contains
prohibitions on exclusionary and retaliatory behavior that are clear
and unambiguous and mean what they purport to mean. In general, they
provide meaningful protection against retaliation for the
development and distribution of non-Microsoft software.
The LS Proposal would require Microsoft to license an unbundled
version of its software. As discussed above, the bundling of
applications together with the monopoly operating system makes it
uneconomic in most cases to develop and distribute software that
competes with Microsoft. This requirement would address that problem
and create an environment in which rival software can be developed.
� The LS Proposal would require Microsoft to license its
software to third parties (not just OEMs) who could produce a
customized product that would enlarge the range of consumer choice
and provide competition for Microsoft.
� The proposal also would require Microsoft to continue
to license predecessor versions of Windows. This would permit OEMs
to expand the range of consumer choice by providing a lower-priced
operating-system product that might be perfectly satisfactory for a
large number of users. In addition, it would permit OEMs and third
parties to continue to develop a differentiated product that might
be competitive with Microsoft.
�The LS Proposal would require Microsoft to make IE
available on an open-source basis, and would require Microsoft to
distribute Java, thereby partially reversing some of the effects of
Microsoft's illegal activities
� Finally, the LS Proposal would require Microsoft
``to auction to a third party the right to port Microsoft
Office to competing operating systems.'' This would reduce the
applications barrier to entry for a competing operating system, such
as Linux. All of these aspects of the LS Proposal would add
significantly to the probability that the remedy in this case would
actually have the desired effect of increasing competition in one or
more of the relevant product markets.
V. Conclusion
The PFJ is not an adequate remedy and its adoption is not in the
public interest. It will not deter Microsoft from engaging in
anticompetitive activities and it will not restore competition in
this extremely important sector of the economy. Moreover, the CIS
that the government has prepared does not provide the information
necessary for the District Court to determine that the PFJ is in the
public interest.
In order to generate the necessary information for such a
determination, the District Court should hold an evidentiary hearing
in which the competitive impacts, benefits and costs of all the
available remedies are closely evaluated. In addition to the PFJ,
the Court should consider structural remedies--;which appear to
be justified under the criteria established by the Court of
Appeals--;as well as the LS Proposal. We believe that at the end
of this process, the court will agree that the PFJ is not in the
public interest and that the ``hybrid'' structural remedy
we recommend best meets all the of the criteria governing the
court's deliberations in this matter.
MTC-00028687
From: Albert Delgado
To: Microsoft ATR
Date: 1/28/02 5:01pm
Subject: Microsoft Settlement
Microsoft should be punished to the fullest extent of the law.
The government should understand that Microsoft has been found
guilty and should make restitution and change its predatory
practices. Microsoft does not innovate, but makes shoddy software
that many hackers attack at will. At Chicago public schools, the
network administrators now prefer Linux and OSX from Apple since
they are stable platforms.
Albert Delgado
Chicago Public Schools.
MTC-00028688
From: Ron Ohlander
To: `microsoft.atr(a)usdoj.gov'
Date: 1/28/02 4:57pm
Subject: FW: Microsoft Settlement
To whom it may concern:
I am a computer scientist (Ph.D Carnegie-Mellon University) who
has worked in the field for over 25 years. I have been a close
observer of Microsoft's behavior since its inception. I believe that
the proposed Microsoft settlement is a farce.
Microsoft has exhibited rapacious behavior since its start. The
courts have found them to be a monopoly and guilty of monopolistic
practices, which only attests to what most professionals in the
field have known for a long time. Even as the case has been
progressing through the courts, Microsoft has continued its
aggressive tactics. The recent allegation that they lobbied
congressional members in defiance of the Tunney act once again bears
out my belief that they think they are above the law.
The government has a duty to pursue a course of action that will
effectively remedy the situation. This has not been achieved. The
proposed settlement terms are extremely weak. They will have
virtually no effect in curbing Microsoft's behavior. On the
contrary, they seem to be an endorsement of Microsoft's tactics. How
can anyone who has any knowledge of the matter imagine that the
playing field has been leveled, or that Microsoft will modify its
monopolistic practices on the basis of said terms? In addition,
where is the penalty for their past actions? The government is about
to fail very badly in its duty to protect the American public.
If Microsoft continues to dominate through monopolistic
practices, it will significantly affect the technology available to
consumers, and what they pay for it. Microsoft has always rushed to
market with shoddy software, expecting users to exercise and test
it. Large numbers of bug fixes are generally required to any given
product, but the products themselves never stabilize because
Microsoft releases the next version with more bells and whistles and
even more bugs. This process explains why their operating systems
are so vulnerable to security attacks, i.e., as the systems have
become larger and more complex, adequate security, which has never
been very good in any of their products, becomes more tenuous. A
lack of real competition exacerbates this kind of result. Businesses
and individuals who use Microsoft products and suffer the
consequences of viruses, worms, etc. pay an enormous cost. In a
competitive market, consumers could make other choices unless the
problems were fixed.
Finally, I don't understand how anyone can support Microsoft's
argument that the consumer has benefited in the form of low-cost
software. One doesn't buy such a product and have done with further
expense. Rather, it is a case of buying on the installment plan, as
one pays again and again for each new release that is made, along
with the need to pay separately for user manuals. If the average
person were to calculate the outlay for software over a reasonable
time period, it would be shown that the cost is far from the bargain
Microsoft portrays.
In conclusion, the government must find a way to curb
Microsoft's behavior. The currently proposed settlement signally
fails to do that.
Sincerely,
Ronald B. Ohlander
MTC-00028689
From: bugbee
To: Microsoft ATR
Date: 1/28/02 4:59pm
Subject: Comments on MS / DoJ Settlement
Your Honor,
To be especially brief, I'll be politically incorrect. (You have
a lot to read.)
It sucks.
Why? For all intents and purposes, there is 1) no penalty for
past illegal acts, and 2) no
[[Page 28409]]
teeth in the agreement to insure it won't happen again.
A structural change in the way Microsoft does business is what's
needed. Promising to be good has not worked before, and future
monitoring is both ineffectual and pointless. I could elaborate, but
I'd be taking your valuable time and I'm sure you've heard it all
before.
Please do what you can to SOLVE this problem. ...a structural
change.
Thanks for listening,
Larry Bugbee
Kent, Washington
MTC-00028690
From: Russell Pavlicek
To: Microsoft ATR
Date: 1/28/02 4:56pm
Subject: Microsoft Settlement
To whom it may concern,
This settlement is an extremely bad idea. It will not adequately
curtail Microsoft's abuse of monopoly power.
Sincerely,
Russell Pavlicek
MTC-00028691
From: Robert McConnell
To: Microsoft ATR
Date: 1/28/02 4:58pm
Subject: Microsoft Settlement.
In response to the government's request for comments on the
proposed Microsoft Settlement:
As a computer professional with over three decades of experience
writing software for a variety of operating systems including
Windows, and as one-time fan of Microsoft, I would like to make two
points. The first is to suggest one route which in the absence of a
breakup I expect Microsoft to continue to exploit to maintain it's
monopoly. The second point is to call attention to a related danger
from Microsoft's monopoly which I believe is accelerating the flight
of manufacturing from the US to foreign countries.
First the monopoly preservation strategy:
Most competent computer programmers can, if they wish, write and
document functioning code which is virtually incomprehensible to any
other competent programmer (including the author him/herself).
Moreover said author can almost certainly (disingenuously but
successfully) argue in a court comprised of non-experts that the
code is straightforward, well-documented and easy to understand.
What does this have to do with Microsoft maintaining and
extending their monopoly? Everything. Whether hardware or software,
it is in the interests of the creator of any product to facilitate
use by the consumer while hiding as much of the internal workings as
possible to discourage competition. Microsoft's strategy has been to
continuously expand the boundaries of it's ``operating
system'' (more properly now an operating environment)
enveloping or attempting to envelope entire classes of applications,
office, networking, on-line shopping, manufacturing etc... within
the boundaries of the ``operating system''. This can be
done explicitly as in the case of Internet Explorer, or implicitly
by simply making it difficult and or prohibitively expensive for
outsiders, to access, or even know about operating system, or
hardware features which may be important for fields Microsoft
dominates, or wishes to dominate. The ``browser wars''
were about exposing the inner workings of Microsoft's operating
system so others might use them.
Because of the ease of writing and defending impenetrable code
Microsoft already has an almost unlimited ability to restrict access
to the core of the operating system and to the hardware beyond,
whether or not a court orders it to provide access. Microsoft sells
just enough tools to access selected parts its operating environment
to be able to provide lip-service to openness. Generally speaking
the products are scaled in such a way that only those who have made
a large commitment, financial or ``sweat equity'' which
will tend to lock in their allegiance to Microsoft are allowed
access to the more powerful tools.
Because of the high barrier created by the impenetrability of
the Microsoft code, it is hard to imagine any remedy short of a
breakup will be able to curtail Microsoft's illegal monopolistic
practices. The second comment, related to manufacturing flight, is
contained in a letter I sent to the Attorney General general of
Massachusetts several months ago. The text follows:
Dear Mr. Attorney General,
I must congratulate you and your staff on the stand you have
taken against the proposed Microsoft settlement.
I am a software developer who has long been appalled by the
relentless manner in which the American public interest continues to
be steamrolled by the Microsoft juggernaut. Therefore I was shocked
by the decision by the Justice Department to take the breakup option
off the table. It is my opinion that this option offered the only
chance to restore competition to the software marketplace. Needless
to say, I was further dismayed by the terms of the proposed
settlement.
As you are obviously well aware, under the guise of
``innovation'' Microsoft has succeeded in stifling true
innovation in many ways. Much of the damage done by Microsoft is not
as a result of overt actions towards the ``victim''
whether an individual or a company. Rather it is in creating an
environment in which the fate of others who have tried to innovate
in the face of Microsoft serves as a deterrent to further
innovation. Of course this type of deterrence by example does not
carry the connotation of physical danger as might be expected from
similar threats by organized crime or terrorists. Nevertheless it is
quite effective. This is an environment in which:
1. Intelligent software developers know that they have little
chance of being successful unless they join the Microsoft camp. Once
in that camp more of a developer's time will be likely spent keeping
up with Microsoft's complexity-increasing-whims than improving their
product.
2. Intelligent funding institutions know from history that there
is no point in developing a product in a market in which Microsoft
is known or believed to have interest. The best one can hope for in
the case of a very successful product is the opportunity to sell the
product to Microsoft at a price determined only by the latter.
3. The required ``operating system'' (now more
properly an operating environment) is so complex as to create a huge
barrier between the creative idea of a researcher, developer, or
engineer and its implementation into a useful product.
I'm reminded of a university researcher's website I saw several
years ago. The researcher noted that he was using older, and by then
outdated, analysis software for his research. Although he had
written the original software himself, he believed that the new
requirement of interfacing with Windows had introduced such
complexities that he could not afford either the time to update the
software himself, or the money to to hire a Windows specialist to
update it for him. Whether or not the researcher's assumption was
actually true, Microsoft literature and promotions (the so-called
FUD factor) would certainly lead him to this conclusion. Hence his
further research in this field was stymied.
4. Similarly the Microsoft ``one size fits all''
operating system and tools, interposed between America's
manufacturing engineers and the computer, hamper their creative
efforts. Modern Windows software effectively prevents these
engineers from writing high speed one-of-a-kind applications
necessary for the most efficient manufacturing. Ten years ago the
same engineer would have had no trouble writing this type of
software. As a Senior Member and member of the Peer Review Committee
of the Machine Vision Association of the Society of Manufacturing
Engineers I became personally concerned about this issue several
years ago. I was particularly worried that is resulting in
substantial advantages for manufacturing facilities in foreign
countries and earlier this year prepared the attached document.
I'm not sure any of this will be of any help in the successful
resolution of the Microsoft situation, However I thought it might be
helpful in explaining why at least one of us is behind you.
Again, congratulations and good luck on your stand!
Sincerely,
Robert McConnell
MTC-00028692
From: Stephen Hopkins
To: Microsoft ATR
Date: 1/28/02 7:04pm Subject'' Microsoft Settlement
Conceptual Computing, Incorporated
i
9315 Locarno Drive, Dallas, TX 75243-;7217
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft,
Most individuals and companies affiliated with computer software
products are very excited about the recent antitrust settlement
between Microsoft Corp. and the U.S. Justice Department. The lawsuit
has significantly dampened technological innovation as well
[[Page 28410]]
as investment. Continuing the lawsuit would only make matters worse;
therefore, the settlement should be accepted and finalized as soon
as possible as it is fair and reasonable.
For example, it has agreed to disclose its internal interfaces
for Windows to its competitors. It also agreed not to retaliate
against computer makers who ship software that competes with
anything in its Windows operating system. Last, and perhaps most
important, Microsoft has to design future versions of Windows to
provide a mechanism to make it easy for computer makers, consumers
and software developers to promote non-Microsoft software within
Windows.
I sincerely hope the settlement is allowed to take hold as soon
as the public comment period concludes and that those who may
attempt to derail it are not successful in their attempts.
Sincerely,
Stephen Hopkins
President
CC: Representative Richard Armey
MTC-00028693
From: wt.catch1
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Yvonne Keenoy
46225 Verba Santa
#11
Palm Desert, CA 92260
MTC-00028694
From: Neil Kohl
To: Microsoft ATR
Date: 1/28/02 5:05pm
Subject: Microsoft Settlement
To whom it may concern:
I am writing in opposition to the Proposed Final Judgment (PFJ)
in the case of United States v. Microsoft.
I am a programmer with over 20 years experience, and I currently
work as a web site administrator for a large medical association.
I agree wholeheartedly with the Open Letter created by Dan Kegel
and signed by over 2000 people (http://www.kegel.com/remedy/
letter.html). I would like to single out two points which deserve
special attention.
As stated in the Findings of Fact, Microsoft enjoys a monopoly
in the operating systems market (section 33-;44). According to
the Court of Appeals ruling, ``a remedies decree in an
antitrust case must seek to ``unfetter a market from
anticompetitive conduct'', to ``terminate the illegal
monopoly, deny to the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future'' (section V.D., p. 99).
First, to meet these standards the Windows API--;almost all
of them, not just ``Microsoft Middleware'' as narrowly
defined in the PFJ--;must be completely open and documented in
such a manner that third-party developers can create an environment
that can run Windows applications. An example of such an environment
is the WINE (WINdows Emulator) middleware that is available for the
Linux operating system.
Second, the enforcement mechanism must be nimble. The original
suit which led to the PFJ was filed in 1995. Since then, Microsoft
has released three new versions of the operating system (Windows 98,
ME, XP) and is positioning itself to be the middleman in Internet
transactions via the .Net initiative. If the courts are used as an
enforcement mechanism then Microsoft is guaranteed several more
years without serious competition in the operating systems market.
Best regards,
Neil Kohl
Manager, ACP-ASIM Online
American College of Physicians--;American Society of
Internal Medicine [email protected]
215.351.2638, 800.523.1546 x2638
MTC-00028695
From: Sara Yurman
To: Microsoft ATR
Date: 1/28/02 4:59pm
Subject: Please reject this settlement.
Thank you for the opportunity to comment on this ruling. I am
sure than many people have offered excellent technical reasons for
rejecting this extraordinarily weak settlement. I have two reasons
that I hope the court will consider:
1) I am a small business person. At the moment I can operate on
Linux, and not be hampered by some of the Microsoft-specific formats
that I receive. This, however, is tenuous and getting more so. As
Microsoft extends its reach into the internet, and continues to keep
its formats closed my ability to communicate without Microsoft is
somewhat serendipitous. Operating with Microsoft products is not an
option for us. We are a distributed company and cannot afford the
expense and security problems inherent in those products. A virus
could be fatal to our small firm.
2) It appears that Microsoft's monopoly power is having a
corrosive affect on our political system. I wrote my U.S. Senators (
Zell Miller and Max Cleland ), urging them to support Senator
Schumer's call to block the distribution of the XP operating system.
Senator Miller never answered. The following was included in Senator
Cleland's response:
>Despite Judge Jackson's ruling last June, Microsoft remains
the single most >dominant technology firm in the world.
Microsoft's core businesses, its Windows >operating system and
Office software, are certainly under legal challenges on >several
fronts, but at the moment they are still generating tremendous
revenues >and profits for the company. In addition, Microsoft
plans to jump-start its >Internet access operation, MSN, which is
also unlikely to be affected by Judge >Jackson's verdict. >
Why is it more important to the Senator from Georgia that
Microsoft generate profits than have conditions favorable to small
businesses in his district? I never got a response, despite phone
calls and emails to the Senator's office. This is the ultimate aim
of monopoly power, and Microsoft has achieved it. Please stop them.
I'd like to have my government back.
Respectfully submitted,
Sara Yurman
MTC-00028696
From: Jerry
To: Microsoft ATR
Date: 1/28/02 4:59pm Subject'' Comments regarding Proposed
Settlement
Attached is a PDF document with my comments regarding the
Proposed Settlement of US v. Microsoft
Thank you for your attention in this matter.
January 25,2002
To:
Renata B. Hesse
Antiturst Division
U.S Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;001
Subject: Microsoft Settlement
The following are my comments regarding the proposed settlement
of the United States vs. Microsoft antitrust case.
Personal Background
I am Information Technology specialist who works primarily in
Systems architecture, design, and development. Over the past ten
years I have specialized in Information Security. I have been a user
of Microsoft products (for both consumers and developers) since the
early 1980s.
United States v. Microsoft Background
The District Court and the Court of Appeals concluded that
Microsoft had ``unlawfully maintained its monopoly power by
suppressing emerging technologies that threatened to undermine its
monopoly control of the personal computer operating system
market.''
The Court of Appeals held ``a remedies decree in an
antitrust case must seek to ``unfetter a market from
anticompetitive conduct,'' to ``terminate the illegal
monopoly, deny to the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future.''
Comments
Scope of Protection is Too Limited
Microsoft's competition in the Operating system area varies
greatly in type and size. This competion includes:
. direct competitors, organizations creating different Operating
systems (e.g. Linux)
[[Page 28411]]
. organizations that build applications and middleware that run
``on top'' of an operating system (e.g. Java and Netscape
Communicator)
.* organizations that customize operating systems for their
clients (hardware OEMs)
.* organizations that provide software equivalence of the
services of one operating system on a different system or
environment.
The proposed restrictions on Microsoft business conduct will
provide protection to a subset of these Microsoft competitors. The
majority of the Proposed Settlement focuses on providing relief for
1) organizations that provide middleware that run exclusively on
Microsoft Windows products, and hardware OEM vendors. There are only
minimal changes in the Microsoft conduct to protect vendors of
competing operating systems.
Only Large Competitors Are Protected
The size of organizations that develop software varies greatly.
Even Microsoft started as a small number of people. Unlike many
other businesses, there is not a requirement for a large capital
investment to start developing software.
The restrictions on Microsoft conduct apply only to large
organizations (both OEM and software developers). Not only does this
not work to terminate the monopoly it creates new exclusionary and
discriminatory practices which did not previously exist.
Scope of Interfaces to be Disclosed is too Narrow
The Proposed Settlement requires that Microsoft disclose the
APIs for its middleware. However, in the Proposed Settlement the
definition of Middleware is so limited that it excludes many of the
interfaces required by competitors. The Interfaces to be disclosed
need to include not just Application Programming Interfaces (APIs)
but all other data structures and protocols extemalized by Microsoft
software components. The Department of Justice chose not to pursue
issues related to the comigling of software and yet the Proposed
Settlement assumes to have sufficient knowledge of the separate
pieces (middleware vs. operating system) to provide a working
definition in the Proposed Settlement.
As long as the definition of the Windows Operating Systems is
outside the scope of the Proposed Settlement Microsoft will maintain
the control over which interfaces must be disclosed. It would be
more appropriate to require Microsoft to disclose ALL interfaces
between all components of their products.
Not All Middleware Components are Identified.
Given that some of the Microsoft Middleware components that are
subject to this settlement are mentioned in the Proposed Settlement,
the ''.net'' interfaces, as the Microsoft followon to Java
should be included. Given the complexity of the definition of
Middleware provided in the Proposed Settlement, it would be
desireable to include the complete list of all Microsoft Middleware.
This list should be publicly available for the time period that the
Settlement is enforced.
Not All Current Versions of Windows are Covered in the
Settlement
All current versions of Windows that are based on Win-32 should
be covered by the Settlement. This should at least include Windows
CE and Windows XP Tablet Edition. Too Many Restrictions on
Disclosure of Security Interfaces The Proposed Settlement places
restrictions on the disclosure of Microsoft security interfaces in
the name of National Security. I would suggest that the reverse is
true. In the current environment it is important to nurture the
development of security functionality. All Microsoft security
programmable interfaces, protocols, and data structures should be
fully disclosed. The only restriction should be that the content of
some specific data elements may not be disclosed (private keys,
etc.)
Limits on Which Organizations can Seek Disclosure of Interfaces
The proposed Settlement places restrictions on which competitors
Microsoft must disclose their APIs. The competitors must be of
sufficient size and have a valid business case. This allows
Microsoft to chose which organizations they wish to compete. Even
Microsoft in its earliest years would have failed these
requirements. Given that in the current environment one of
Microsoft's strongest competitors is primarily a volunteer
organization (Lunix) it seems likely that Microsoft would not
disclose any APIs to ``Free'' Software development
organizations.
Poor Enforcement Mechanisms
A good settlement should include enforcement that is easily
understood, quantifiable, and verifiable. There should be metrics
that can be used over a period of time to evaluate the success of
the Settlement. A good enforcement needs to provide quick resolution
of issues related the Settlement for the business needs of both any
plaintiff as well as Microsoft. Finally, there needs to be a
sufficient motivation to insure Microsoft will not violate the
Settlement.
The Proposed Settlement provides almost none of the above. There
is technical review by a three person team but all of their work
will be confidential and not subject to review. There is no public
or judicial review of the progress of the Settlement. The only
option for handling misconduct, outside of the technical team, is to
go back to court--;one of the slowest ways to resolve any
violations. Finally, given that there is no financial incentive
required in this Settlement and that Microsoft earns billions of
dollars using their current business conduct it is hard to see why
Microsoft will be motivated to make any changes in their conduct.
Conclusion
The Proposed Settlement does not provide adequate changes in
business conduct of Microsoft to provide a remedy that meet the
requirements of the Court of Appeals mandate. In some cases the
Proposed Settlement adds new barriers to the competition to
Microsoft Operating Systems and Middleware. Thus, the Proposed
Settlement does not serve in the public interest. I recommend that
the Proposed Settlement be rejected.
Sincerely,
Jerry L. Hadsell
2800 Wood??ey Road NW
Washington DC, 20008
MTC-00028697
From: Ken Brown
To: Microsoft ATR
Date: 1/28/02 4:59pm Subject'' Tunney Act Comments
Thanks for reviewing our comments.
Ken Brown
January 28,2002
Renata Hesse
Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street, NW Suite 1200
Washington, DC 20530
e-mail: microsoft.atr @ usdoij.gov
Re: AdTI Tunney Act Comments
The Alexis de Tocqueville Institution submits these comments
under the Tunney Act.
The Alexis de Tocqueville Institution is an independent non-
profit education and research organization described in detail at
www.adti.net. The mission of AdTI is to provide helpful policy
analysis to advance the ideas of democracy and freedom around the
world.
Sincerely,
Kenneth Brown
President
Telephone Number(s)- office 202-;548-;0006, cell
703-;608-;4222
ALEXIS de TOCQUEVILLE
Why the Microsoft Case Should Be Settled
Alexis de Tocqueville Institution
Washington, DC
January 22, 2002
The Hard Truth About Invention in the U.S. Marketplace
Two courts have reaffirmed that Netscape nor its browser were
shut out of the marketplace. The browser wars produced a winner and
a loser; and Netscape was the loser. However, within thousands of
briefs and legal arguments criticizing the U.S. vs. Microsoft
settlement is the repeated concern about the future of new
Netscape's in the technology sector. Almost every other issue is
tangential, and we must differentiate the arguments properly.
We see an interchanging of terms being used, specifically,
''....the settlement should make the marketplace safe for firms
to compete with Microsoft...'' vs. ''...the settlement
should be safe for firms to introduce new products...ie, like
Netscape Navigator...'' The Department of Justice has proposed
a settlement that properly speaks to its duty--;to introduce a
remedy which allows firms to safely introduce new products.
Microsoft has agreed to the rules; which include a mandate that
Microsoft disclose any information necessary for rival firms to
produce fully interoperable products with Windows for competing
software and servers.
The reason why critics want a settlement which goes further is
because they want Microsoft completely out of the way. The case is
merely obfuscation. With billions of dollars in resources,
Microsoft's competitors want every advantage because 1) the
marketplace for new technology is overwhelming and having a chief
competitor eliminated makes things a little easier and 2) the
competitors lobbying for a far-reaching settlement are among the
most aggressive and fierce technologists in the world.
The reality is that the marketplace, particularly the
marketplace for new
[[Page 28412]]
technology has never been safe from a competitor. What Microsoft's
competitors want is an oxymoron because no technology product is
ever ``competition-free'' or guaranteed success in the
marketplace. This benefits consumers, the country and ironically
inventors themselves, which makes it relevant to observe the reality
of the marketplace (beyond the courtroom) for a moment.
Great Inventors Must Be Fierce Strategists
Every inventor and innovator small and large must face the
formidable odds to succeed in the marketplace for new technology.
Since the day the first idea was registered in the U.S. patent
office, countless inventions and innovations have become cinders in
the furnace of competition. Relentless markets in America only
sustain the fiercest competitors, without exception. Technologists
rewarded with fabulous wealth and fame did so at the expense of
employing hard-hitting, merciless strategies. Regardless of
ingenuity, technologists without the ability to navigate in the
marketplace were failures; and lucky to even receive credit as
creators of their own inventions.
The marketplace for food, furniture and other goods each have
their challenges. But, the technology marketplace is unique because
it demands both inventive genius and keen business savvy. The
combination of the two is rare in individuals and corporations, and
particularly scarce among pure inventors such as physicists,
mathematicians or engineers. From the light bulb to the PC operating
system, every innovator that history has been kind to, had the
indomitable capability to merge intellectual power with commercial
insight. In the end, technologists with these qualities became far
more successful than their counterparts with better inventions or
greater talent.
Competitive Inventors Preserve U.S. Leadership
However, America's owes its technological leadership in the
world to its competitive battleground. Although education, vigorous
intellectual property rights and democracy are also credit to
American invention, its ability to surface inventors with commercial
savvy, make it a source of the most competitive innovations in the
world.
In the end, the U.S. is a leader in world-changing innovations,
at the expense of sustaining a ``bare-knuckled''
marketplace.
After an excruciating and lengthy examination by the court
system, the federal government and 9 states (actually 41 when you
consider the states that never filed suit) agree on the U.S. vs.
Microsoft settlement. Regardless of the differences among the
parties, we can't expect any ruling to settle the differences
between Microsoft and its competitors. However, this dissatisfaction
is in the best interest of our country and will only spawn better
ideas and products that will propel the U.S. to new heights. U.S.
technological leadership depends on the undying will of its
innovators to be no. 1.
The ``Electric'' War Between Edison and Tesla The
debate over Windows is similar to many stories about wars between
rival innovators throughout history, particularly aspects of the
Thomas Edison story. Although the Edison-Tesla rivalry did not
involve anti-trust law, the contest details the reality of the
``invention business'' in the most competitive capitalist
society in the world.
Contrary to popular belief, the idea of electric lighting was
not Edison's. A number of individuals had developed forms of
electric lighting, but none had developed a system that was
practical for home use. Using lower current, a small carbonized
filament, and an improved vacuum inside the bulb, Edison was able to
produce a reliable, long-lasting source of light. Thomas Edison
didn't ``invent'' the light bulb, but became a legend for
making a 50-year-old idea a fantastic commercial success.
Edison's fiercest rival, was an ex-employee named Nikola Tesla
from Smijlan, Croatia. Tesla was a genius who invented the
fluorescent bulb in his lab forty years before industry
``invented'' them. At World's Fairs and similar
exhibitions, he demonstrated the world's first neon signs. Perhaps
Tesla's greatest invention was the AC (alternating current) system
we use in our homes today. DC (direct current), an inferior system,
ironically, was designed by Thomas Edison. After years of fierce
wars and debate between the Tesla and Edison teams, AC became the
accepted system of transporting electricity. In fact, Edison later
admitted that AC was the better system.
While both men were geniuses ahead of their time, the biggest
difference between Edison and Tesla was their perspective and
approach to invention. Edison had a keen understanding of capital
markets and the strategies necessary to finance, promote and
commercialize his inventions. Tesla was a great theoretician who
worked perpetually to finance experiments.
Edison held a world record 1,093 patents and died a wealthy,
famous man. Tesla received over 800 patents, died penniless and was
literally erased from the history books. In fact, Tesla was poor the
last thirty years of his life and arguably would have eclipsed
Edison's patent record if he had the capital. Remembered for many
things, Edison was known for saying, ``1 have more respect for
the fellow with a single idea who gets there than for the fellow
with a thousand ideas who does nothing.'' Edison's vision
reflects the view of anti-trust law, that the greater value is in a
stable marketplace, not the resurrection of competing ideas.
The Other Truth about Netscape
The Appeals Court ruling reflects another hard
truth--;Netscape fell, because it did. The DC Circuit rejected
the course-of-conduct theory, under which Microsoft's specific
practices could be viewed as part of a ``broad monopolistic
scheme.'' This obviously has made anyone that viewed Microsoft
as an evil-doer exponentially dissatisfied with DOJ's settlement.
But again, is the responsibility of the DOJ to make the world safe
from Microsoft?
Netscape maintained its Internet dominance until 1997, when
Internet Explorer's fourth version was able to lap Netscape.
Netscape Navigator never regained its prominence. In addition, by
that time, the Netscape product was slow, outdated, and unstable,
falling to a swifter surging Internet Explorer.
But perhaps the most unmentioned reality regarding Netscape's
fall was their announcement to all (Microsoft included) that their
strategy was to be the middleware that would be the
``new'' Windows, removing Microsoft's flagship product
from dominance. Hindsight is 20/20 but when you consider how far
ahead Netscape was in front of Microsoft, there are infinite what
if's'' to consider if it had been mum about its strategy to
take on Redmond. Microsoft had all but ignored the Internet and it
is very questionable if they would have been able to play catch-up
to a well-funded and branded Netscape team. The outcome of this
possibility almost completely counters any damage claims in their
civil suit recently announced. After all, Netscape's grand plan was
never realized, thus the future is incalculable especially when
taking into consideration the hubris of Netscape.
Innovators are the Lifeblood of U.S.
Today, new technology firms use every means available to compete
including spending billions of dollars on research and development.
Sun Microsystems, IBM and AOL and Microsoft combine to spend over
$100 billion annually just on research and development. Firms spend
exorbitant amounts of money to create and protect to new products.
But again, this competition is to the benefit of inventors and the
U.S. marketplace. 1Recently, the United States Patent Office
released its annual list of the top ten private sector patent
recipients. It reported that for the ninth consecutive year, IBM
received more patents than any other organization in the world.
``1 am proud that American corporations are leaders among U.S.
patent holders,'' said James E. Rogan, Undersecretary of
Commerce for Intellectual Property. ``Patents promote
technological progress and are a potent source for competitive free
enterprise.''
USPTO's comments echo the importance of preserving the status
quo of the U.S. marketplace.
In the end, it is in the interest of innovation that we close
the chapter on U.S. vs. Microsoft. The judicial process has sorted
through the facts and come to judgment. Those dissatisfied with the
settlement should be reminded by W. M. Deming's famous quip,
``Learning is not essential, survival is not mandatory.''
Deming's point speaks not only to the Microsoft case; but the hard
truth about invention and success in the technology business. The
court system has done its job, and enough precious time has been
dedicated to legal jurisprudence. It is now the time for Microsoft
and its opponents to tuck in their chin, learn from their mistakes
and return to the marketplace.
[[Page 28413]]
*U.S. Patent and Trademark Office (USPTO) List of Top 10 Patent Recipients
----------------------------------------------------------------------------------------------------------------
Preliminary Final
# of Final Rank Number of
Preliminary Rank In 2001 Patents in Organization in 2000 Patents in
2001 2000
----------------------------------------------------------------------------------------------------------------
1............................... 3,411 International Business Machines 1 2,886
(IBM).
2............................... 1,953 NEC Corporation..................... 2 2,021
3............................... 1,877 Canon Kabushiki Kaisha.............. 3 1,890
4............................... 1,6543 Micron Technology................... 7 1,304
5............................... 1,450 Samsung Electronics Co., Ltd........ 4 1,441
6............................... 1,440 Matsushita Electrical Industrial 11 1,137
Co., Ltd..
7............................... 1,363 Sony Corporation.................... 6 1,385
8............................... 1,271 Hitachi, Ltd........................ 13 1,036
9............................... 1,184 Mitsbushi, Denki Kabushiki Kaisha... 14 1,010
10.............................. 1,166 Fujitsu Limited..................... 10 1,147
----------------------------------------------------------------------------------------------------------------
*Source: USPTO, January 10, 2002. The listed patent counts are preliminary counts, which are subject to
correction. The final listing of patent counts for the top patent organizations in 2001 should be available by
early April 2002. Patent information reflects patent ownership at patent grant and does not include any
changes That occur after the
MTC-00028698
From: Helen Gamsey
To: Microsoft ATR
Date: 1/28/02 5:02pm
Subject'' Microsoft settlement
Helen B. Gamsey
6006 S River Road
Norfolk, VA 23505-;4711January 27, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing you today to voice my opinion in regards to the
Microsoft settlement issue. I feel that this debate has gone on long
enough and that it is time to end this litigation. After three years
of litigation, it is time to focus on more pressing issues. In my
opinion, this lawsuit should never have occurred in the first place.
Nonetheless, this settlement is the perfect means to end this
dispute. Microsoft will remain together and continue designing and
marketing their innovative software, while fostering competition and
making it easier for other companies to compete. Microsoft has
pledged to share more information about Windows operating system
products and has agreed to be monitored for compliance. During these
difficult times, it is vital to do all we can to boost our economy.
Restricting Microsoft will not accomplish this. This country is at
war with a world wide network of Islamic extremists intent on
destroying us. The Department of Justice needs to focus on
``fixing'' the FBI and improving the security of our
nation and protecting American citizens against more terrorist
attacks. Has this short passage of time since September 11 dulled
memories so quickly that we are back to the old games of using
lawyers and politicians and the Department of Justice to squash
competitors? Are things really back to normal? I don't think
so...until the next terrorist attack... Antitrust laws are not meant
to protect competitors against their inability to compete in the
marketplace due to their own incompetence...Look who is suing? AOL,
Sun Microsystems, Oracle, IBM are multibillion corporations.., not
mom and pop outfits threatened by a bully...The antitrust laws were
meant to protect consumers and to allow fair competition.
Consumers are not complaining. However antitrust laws are now
being used to protect competitors, and to make trial lawyers even
richer,,,at the expense of consumers and the economy. How many
companies have been forced into bankruptcy now by trial lawyers over
asbestos? 20? 30? 50?
AOL, Time Warner, IBM, Sun Microsystems, Oracle, etc have
contributed heavily to politicians for years...long before Microsoft
was forced to play this game, as a result of their persistent
efforts to prosecute and persecute Microsoft.
Should the DOJ continue to ``work'' on behalf of
Attorney Generals who are receiving large contributions and specific
instructions from Microsoft's competitors via ProComp and other such
organizations? After all, it was Sun Microsystems'' financing
of ``Project Sherman'' which assembled of panel of so
called antitrust experts to testify before the DOJ. This panel had
worked secretly for months, to ``produce'' antitrust
charges which would appear credible to the DOJ. Unknowing to the
DOJ, these ``experts'' were being paid $600 to $700 an
hour by Microsoft's competitors. Reputable antitrust experts like
Carlson produced novel antitrust theories of harm from incomplete
foreclosure of market share that even bamboozled the Appeals Court
judges; their decision relied on this ``novel''
theory...and most of their findings of antitrust violations were
based on Carlson's novel'' theories. Project Sherman, which
cost Sun $3 million, initially convinced the Department of Justice
to take this case..
I would think that the Enron scandal would make politicians and
regulators more wary of the dangers involved from large
contributors... I was surprised to learn the extent of Enron's
contributions. They gave $50,000 to Paul Krugman, from the New York
Times, who writes about economic matters, and not too surprisingly,
Krugman apparently wrote positive articles in the past about Enron
....
I think it was American competitors of GE and Honeywell who gave
secret testimony to the EU commission that lead the EU to disallow
the GE-Honeywell merger, ge with Honeywell... It was a complaint
from Sun Microsystems that lead the European Union to launch an
antitrust case against Microsoft by the EU. There is something about
certain American companies that borders on treason, in my
opinion...when they resort to getting the European Union to crush
their competition ..if they can't get the DOJ or FTC to do it... It
is telling that Sun Microsystems has 200 lawyers in their legal
department, more than many large firms, even in Washington. I think
their shareholders might prefer they spent more on improving their
products and competing...as their stock continues to decline. It's
the old familiar story as Glassman says. ``Pick an
unsympathetic target with deep pockets. Generate lots of publicity.
Change the laws, if need be.'' ``Then get the company
to capitulate.'' Gee, Jesse Jackson is so good at these tactics
of file:///C/win/temp/tmp. getting large corporations to
donate to his ``charities; it is not surprising he was involved
with the class action lawsuits in California claiming Microsoft
discriminated against blacks and then women too. Microsoft was
consistently been rated one of the top corporations ``to work
for and one of the most admired companies by Fortune until the trial
lawyers and AG and MSFT's competitors started their hatchet jobs and
made Microsoft into an ``unsympathetic target.'' http://
www.techcentralstation.com/1051/
techwrapper.jsp?PID=1051-;250&CID=1051-;012901A The
Appeals Court judges in Microsoft's appeal were astonished to learn
that 160 million copies of Netscape browsers were distributed
overall, and that their user base doubled to 33 million ...... in
1998 ..... when Microsoft's competitors were accusing Microsoft of
foreclosing competion. They claimed that Microsoft ``threatened
to cut off Netscapes air supply,'' a statement MSFT never made.
Microsoft's competitors lobbied politicians for years before
Microsoft was finally forced to join their game and forced to pay
this'' protection money. '' For about 20 years Gates and
his colleagues just sat out there in ``the other
Washington,'' creating and selling. As the company got bigger,
Washington, DC, politicians and journalists began sneering at
Microsoft's political innocence. A congressional aide told the
press, ``They don't want to play the DC game, that's clear, and
they've gotten away with it so far. The problem is, in the long run
they won't be able to.'' Politicians told Bill Gates,
``Nice little company ya got there. Shame if anything
[[Page 28414]]
happened to it.'' And Microsoft got the message: If you want to
produce something in America, you'd better play the game. In 1995,
after repeated assaults by the Federal Trade Commission and the
Justice Department, Microsoft broke down and started playing the
Washington game. It hired lobbyists and Washington PR firms. Its
executives made political contributions. And every other high-tech
company is getting the message, too, which is great news for
lobbyists and fundraisers.'' (but not for consumers or
innovators or successful companies..) From ``The Theft of
Microsoft'' by David Boaz. http://www.cato.org/dailys/
07-;27-;00.html
``What lesson should they draw? The antitrust laws are
fatally flawed. When our antitrust laws are used by competitors to
harm successful companies, when our most innovative companies are
under assault from the federal government, when lawyers and
politicians decide to restructure the software, credit-card and
airline industries, it's time to repeal the antitrust laws and let
firms compete in a free marketplace.''
``Our tobacco, gun and antitrust laws have essentially been
rewritten by state AGs and their trial-lawyer allies. The result, as
former Labor Secretary Robert Reich wrote in USA Today, has been
``regulation by litigation'' - a sorry state of affairs
that has cut elected representatives out of the system.''
``Political science quiz: Today's category is decision
making at the Federal Trade Commission and the Department of
Justice.''
``Which is more important in the merger approval process?
1) a sophisticated economic study prepared by staff economists,
complete with extensive industry data, statistical analysis, and
tight reasoning,
2) a scratchy, three-minute cell-phone call from the secretary
of commerce?'' ANSWER: 2) a scratchy, three-minute cell-phone
call from the secretary of commerce?'' ``In 1991, the Time
Warner buyout of Turner Broadcasting zipped past the FTC, despite a
staff report branding the merger as anti-competitive. After Ted
Turner and Gerald Levin, the two CEOs involved, visited top
officials in Washington, the commissioners tossed the staff work out
the window.'' From: ``Texas Swing:
The not-so-shocking reason the Lone Star state chose not to sue
Microsoft.'' By Thomas W. Hazlett REASON August/September 1998
http://reason.com/9808/col.hazlett.html
``Did they disagree with the competitive analysis? Was it a
difference of opinion as to the cross-elasticity of demand? Or were
the politically appointed regulators moved by a higher voice? It
would be nice if the pundits who explained our politics to us could
see where the politics goes. ``That's what
``access,'' and the campaign contributions used to
purchase it, are all about.'' Somehow this case reminds me of
what terrorists living in the US are doing so well.
There are many front groups for violent terrorist groups like
Hamas and Islamic Jihad residing in the US, claiming to be think
tanks or charitable groups. Organizations like C.A.I.R. or the
Council on``American Islamic Relations, masquerade as
mainstream public affairs organizations. CAIR has taken the lead in
trying to mislead the public about the terrorist underpinnings of
militant Islamic movements, in particular Hamas. ``http://
www.geocities.com/CollegePark/6453/emerson.html
CAIR and other such organizations have lobbied to change our US
laws, like the use of secret evidence, to make it harder to deport
them or to prosecute them; under the guise of protecting our freedom
of speech.
These terrorists posing as phony charitable groups or think
tanks also contribute to politicians and lobbyists and use the media
to advance ``their cause. CAIR has routinely exaggerated or
fabricated ``hate crimes'' against Muslims. Just one
example:
``CAIR's 1997 report on ``hate crimes'' labeled
the death of Ahmed Abdel Hameed Hamida as a ``hate
crime.'' Hamida drove his car into a crowd of Israelis at a
Jerusalem bus stop on February 26, 1996, killing one woman and
injuring twenty-three other Israelis. He attempted to escape on foot
but was shot to death by Israeli civilians. He shouted ``Allahu
Akbar,'' (God is Great!) as his car struck the crowd. He had
made statements previously affirming his intent to kill Jews.
Hamida was a terroris, yet CAIR classified his death as a
``hate crime.''
Why is this relevant to Microsoft's antitrust case? Microsoft's
competitors and these phony front groups are using their influence
over the media, and their power from contributions to politicians to
give the appearance that they are concerned with civil rights or
consumers, when they are only advancing their own agenda, which is
harmful to most of us. Microsoft's competitors claim to have the
interest of consumers at heart, when in reality their own
incompetence lead to their loss of market share. AOL 5 was such a
terrible product that even computer experts could not deal with the
changes it made to the computer. It changed your default settings
and took over. Mossberg from the Wall Street Journal, who has never
been a fan of Microsoft, acknowledged this at the time and there
were lawsuits over this which somehow failed to make the news..
Anyone who has ever used AOL knows about their inferior products and
their poor customer service.
``In 1975 Microsoft had 3 employees and revenues of
$16,000. Over the next 25 years they grew to 36,000 employees and
revenues of $20 billion by obsessively figuring out what computer
users needed and delivering it to them.'' ``Over the years
Gates and his colleagues made a lot of people mad, especially their
competitors. Some of those competitors delivered a 222-page white
paper in 1996 to Joel Klein, head of the Justice Department's
antitrust division, and urged him to do to Microsoft in court what
they couldn't do in the marketplace. (Susan Creighton wrote that
White Paper).
Justice worked closely with the competitors for four years,
often showing them sentences or paragraphs in drafts of the
department's plans and soliciting their approval. The politics of
the case is a far cry from the Platonic ideal of rigorous economists
devising the best possible antitrust rules and wise, disinterested
judges carefully weighing the evidence.''
Microsoft's competitors have used the Department of Justice to
try to take not just their money but their intellectual property as
well.
From ``The Theft of Microsoft'' by David Boaz. http://
www.cato.org/dailys/07-;27-;00.html ``In antitrust
circles, Creighton is a card-carrying anti-Microsoft agitator.
Creighton is now the deputy director for the FTC.
I hope she has recused herself from any involvement in this
case.'' Five years ago--;while her then-partner Gary Reback
played a more public role--;Creighton penned the infamous white
paper commissioned by Netscape.'' Susan Creighton, and her
partner Gary Reback, from Silicon Valley's Wilson Sonsini Goodrich
& Rosati. Creighton ``helped ignite the government's
landmark case against the monopolist from Redmond, Wash.
``Microsoft's Captain Ahab'' by Krysten Crawford, from
The American Lawyer August 22, 2001from http://www.law.com
``Bill Gates draws praise from the cultural elite when he gives
away his money--;and he has given away more than $20 billion;
the Bill and Melissa Gates foundation has given more than any other
philanthropist foundation. Yet those contributions pale when
compared to the g Microsoft's great contributions to the
technological and economic advances of the last decade. It would be
a shame to see Microsoft's assets and intellectual property
distributed to greedy conniving corporations and lawyers and
publicity seeking Attorney Generals trying to further their careers.
Mr. Tunney is now complaining about the way Microsoft has
reported their political contribution. I doubt he is really
impartial. Robert Bork was a prominent foe of antitrust law in the
1970's, and a colleague of Judge Posner. Bork though as
``changed'' sides and became very ``pro-
antitrust'' when hired by Microsoft's competitors.
I sincerely hope the Department of Justice accepts this
settlement and puts an end to this mess and turns their attention to
real threats to the Nation- the terrorists who want to destroy the
West. Caving into Microsoft's major competitors who are behind the
Attorney Generals hurt consumers and the economy further. Let them
innovate like Microsoft does, rather than litigate.
Thank you for your attention.
Sincerely,
Helen B. Gamsey
757-;440-;5910
Sincerely,
Helen Gamsey
MTC-00028699
From: Bartucz, Tanya Y.
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 5:02pm
Subject: Tunney Act comments
Attached please find the Tunney Act comments on the Microsoft
settlement of Griffin B. Bell, Edwin Meese III, and C. Boyden Gray.
A paper copy will be submitted by fax.
Tanya Bartucz
Sidley Austin Brown & Wood LLP
1501 K Street, NW
Washington, DC 20005
[[Page 28415]]
(202) 736-;8067
Fax (202) 736-;8711
This e-mail is sent by a law firm and may contain information
that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail
and any attachments and notify us immediately.
MTC-00028700
From: John D. Mitchell
To: Microsoft ATR
Date: 1/28/02 5'03pm
Subject: Microsoft Settlement
John D. Mitchell
2129 Ascot Drive q
Moraga, CA 94556
2002.01.28
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
microsoft.atrusdoj.gov
Subject: Microsoft Settlement
SUMMARY
The currently proposed settlement with Microsoft woefully fails
to address the critically important need of restoring hope to all of
the parties afflicted by the Microsoft's abuse of monopolistic
power.
Restoring of hope is a critical criteria by which any and all
proposed solutions to the Microsoft monopoly problem must be judged.
Moving forward, a just and fair solution to the Microsoft monopoly
can only be created through a combination of structural and
behavioral remedies.
AXIOMS
(Rule of) Law
At the surface, (the rule of) law is the complex, accretive,
disjointly semi-hierarchical, codification of the conglomeration of
(the processes of) (dealing with) (quasi-) behaviors.
At the heart, (the rule of) law is a simple belief system.
Fundamentally, (the rule of) law is about hope.
Anti-Trust Law
At the surface, anti-trust laws are primarily about dealing with
things like the (private sector) abuse of monopoly power to harm
consumers. At the heart, anti-trust laws are about dealing with
entities which unduly restrict free-market competition.
Fundamentally, anti-trust laws are about dealing with entities
which eliminate hope.
MICROSOFT ANTI-TRUST CASE
Background
The facts are simple and clear:
* Microsoft has systematically and aggressively pursued
monopolistic goals since its formation.
* Microsoft's behavioral outrageousness stems directly from the
corporate, ``Cult of Bill'' culture [ala ``Cult of
Personality] that has been created and fostered by all of the senior
management of the company including Bill Gates himself.
* Microsoft has been very successful at gaining monopolistic
power in many critical areas of the computer (software) business.
* Microsoft has repeatedly, aggressively, and unapologetically
abused its monopolistic power to the detriment of the marketplace.
* Microsoft has clearly shown its obstinate incapability to
adhere to behavioral restraints.
Lack of Hope
The settlement and (behavioral) remedies proposed by the US DoJ
vs Microsoft anti-trust action are not only worthless to the
marketplace but are outright detrimental. Why is that so clearly the
case? Simple... The proposed settlement does absolutely nothing to
address the fundamental abuse of Microsoft: the severe curtailing
and, often, outright elimination of hope. For example:
* The hope of major (software) competitors has been mostly
devastated over the years by e.g., Microsoft's abuse of its
monopolistic power to exclude the competition from pre-built
computers containing Microsoft operating systems (which increasingly
forcing the ``up selling'', if not outright inclusion of
more and more Microsoft products and services).
* The hope of computer vendors to sell whatever (software) it is
that they want and are able to with their computers to satisfy their
customers.
* The hope of upstart, would-be (software) competitors. It's a
well known truism that a great many startup companies work so as to
*not* attract the notice of Microsoft for as long as possible. It's
incalculable how many companies (and projects within existing
companies) have been canceled due to fear of Microsoft's (re)action.
* The hope of consumers for a fair price based on a fair, open
market.
* The hope of (ignorant, inexperienced, etc.) consumers for
computer systems that actually work (reliably, robustly,
inexpensively, securely, etc.).
* The hope of (informed, experienced) consumers for computers
and software that can (reliably, effectively, inexpensively,
securely, etc.) inter-operate between all consumers (that don't
explicitly choose to isolate themselves) without being, a priori,
forced into using Microsoft products (due to such forces as the so
called ``network externalities'' effects which reinforce
monopolistic power).
* The hope of investors for a market which is unskewed by the
insidious abuses of monopolistic power.
* The hope of citizens that the rule of law (still) has meaning
and that breaking the law has serious, effective, and efficient
consequences upon the violators, inhibitive effects upon would be
violators, and some restitution for the violated. By neglecting
dealing with hope, the proposed settlement precludes the
reconstitution of a fair and open market, allows a vicious predator
to continue their predations, and weakens the rule of law.
Therefore, any proposed settlement remedies must be judged in
their effectiveness and efficiency at restoring hope.
Side-note on Consumer Pricing
I have heard many arguments, both pro and con, from various
people using (``guesstimates'') of the effects of
Microsoft's monopolistic abuses on the prices that consumers have
paid for various products. I have found all of those such arguments
that I have heard to be severely lacking directly in proportion to
their failure to address the fundamental hopes and expectations of
consumers.
For example, of what import is the fact that Microsoft may or
may not have ``over-charged'' some customers for some of
their products if there was no hope of having a fair and open market
to determine the true pricing? The very fact that there was not (any
hope of) a fair and open market meant that there was absolutely no
possibility whatsoever that anyone could have paid a fair price for
any product or service from Microsoft nor for any product or service
impacted by the monopolistic effects of the so skewed marketplace.
Behavioral Remedies are Insufficient Given the facts of the
case, it is crystal clear that the current proposed settlement's
reliance upon strictly behavioral remedies is insufficient to
effectively and efficiently restore any hope.
My analogy is that of modifying the behavior of children... It
is clear that while an appropriate corrective action (e.g., a slap
on the wrist) by a reasonable, supervising guardian may well affect
a change of behavior (for the better) in an otherwise normal, well-
behaved child; such a remedy does, at best, nothing to positively
change the behavior of a willfully recalcitrant teenager (and, at
worst, merely incenses and incents them to be more clever in their
abuses). At least, Microsoft must be treated as such a willful
violator.
Many others have gone through and picked apart each and every
one of the behavioral remedies in the proposed settlement. I won't
go further into analyzing them here due to my contention that those
remedies are, by themselves, so clearly insufficient. That said, I
have co-signed Dan Kegel's open letter--;http://www.kegel.com/
remedy/letter.html.
Structural Remedies are Necessary
Structural remedies are necessary to any proposed resolution to
the Microsoft monopoly. Only by incontrovertibly dispersing and
otherwise separating each of the major constituents can there be any
hope of significantly and effectively modifying the behavior of
Microsoft and its monopolistic effects.
Structural remedies are necessary so that each of the resulting
entities can be effectively constrained from (attempting to)
reconstitute the original company. In addition, the resulting
entities must be sufficiently isolated in terms of its market power
by having to stand and compete in a fair and open market without
being able to rely on the direct and synergistic power effects that
Microsoft currently abuses. Structural and Behavioral Remedies are
Necessary and Sufficient I hope that it's clear from the preceding
that the only ways to curtail the continued devastation of all of
our collective hopes by Microsoft is to imposed significant
structural remedies along with broad behavioral remedies.
I will leave it to another missive to go into details and
rationale of my proposed remedies but the broad strokes are:
* Divest the current assets of Microsoft into three (4) new
entities. One entity for creating operating systems for devices
(PCs, handhelds, etc.). One entity for the end-user applications
such as Microsoft Office suite of
[[Page 28416]]
applications. One entity for the development tools and libraries.
And finally, one for end-user services such as MSN. Appropriate,
suitably related portions of each of the general facets such as
customer service & support and Microsoft Research would be
dispersed to each of the new entities.
* Require that the (major) shareholders, the board members, and
at least top three levels of executive management can only have
anything whatsoever to do with at most one of the created entities.
Also, inhibit their ability to switch between the created entities.
* Enjoin the resulting entities from colluding with any of the
entities on any products or services to the exclusion of any other
companies in any respective market. In conclusion:
* The currently proposed settlement fails completely to provide
any hope for anyone, except those who gain by Microsoft continuing
to abuse its monopoly, that anything will change for the better.
* Judging any proposed solution to Microsoft's monopoly must
incorporate and account for the effects hope.
* Based on my experience and analysis, the only possible
solutions necessarily must be based a combination of both structural
and behavioral remedies.
Sincerely,
John D. Mitchell
Moraga, CA
2002.01.28
MTC-00028701
From: Devin (038) Marilee
To: Microsoft ATR
Date: 1/28/02 5:04pm
Subject: Microsoft Settlement
ATTN: U.S. Department of Justice Antitrust Division
In my opinion, the terms of the Microsoft Settlement are
reasonable and fair to all parties involved. It is time to move
Microsoft and the industry forward. The terms of this agreement are
in the public interest and should be accepted.
Thank You--;
Marilee Sauer
8618 Henrietta Avenue
St. Louis, MO 63144
MTC-00028702
From: Bill Whitlock
To: Microsoft ATR
Date: 1/28/02 5:04pm
Subject: Microsoft antitrust case --;
I would like to say get this case over with and let Microsoft
get on with business. Do not let the states do separate settlements.
Because it will just turn into a money grab. How dose consumer
protection benefit from fifty one separate legal cases? The only
people that profit are the lawyers and state attorneys looking to
make a name for themselves.
Making the source codes available will give new products an
ability to integrate with microsoft. Will you require apple to do
the same? The U.S. economy is in the toilet. Tens of thousands of
jobs have been lost. Excess beating up on Microsoft will not help
this situation. Dragging this issue out any longer will not help
U.S. consumers.
I am writing this on a Mac G4. I have both Apple and Microsoft
operating systems. I also have Netscape and Internet explorer on my
home PC.
P.S. The U.S. lost a unfair trade case in the world court. Is
this one of those cases where we are suppose to do what you say not
as you do?
MTC-00028703
From: Alex Lazutin
To: Microsoft ATR
Date: 1/28/02 4:53pm
Subject: Microsoft Rulings
To whom it may concern:
In my opinion, the Microsoft settlement was just and fair to all
parties.
I believe Microsoft should be exempt from any future litigation.
Taking into consideration all the wonderful things Microsoft
does for children and its employees, why should the company be put
though any future expense.
Sincerely,
Paula Lazutin
MTC-00028704
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I find it amazing that the Federal Govt would go through such
extrodianry lengths to prosecute Bill GAtes and Microsoft. I cant
speak on the legal technacalities of the lawsuit but the Microsoft s
impact on the United States is clear. Over the past 10 years
computers the internet and technology have been made more available
to households and schools across the country. I find it odd that
this can be considered some sort of monoply that is harming our
nation. Microsoft has done wonders for our scociety making computers
cheaper easier to use and more avialable. Thank You for your time.
Marc T Povondra
MIDN USN
MTC-00028705
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I think that Microsoft should be taken to task for their illegal
and bullying ways to crush any competition in the O/S and browser
market. They (M$) develop lousy software and through their business
methods keep competitors from delivering better software.
REG
MTC-00028706
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I think the government should not continue a lawsuit again
Microsoft. I think there should be a settlement so Microsoft can get
on with its business. There was no good reason to sue Microsoft in
the first place. Just government at its worst going after someone
just because it was successful.
MTC-00028707
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I think that the suit against Microsoft was a waste of taxpayers
money. They were being sued simply because they were successful.
MTC-00028708
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
The Department of Justice Settlement is a total non-settlement
which deserves investigation in it own right. I feel that the anti-
competitive practices are being actively encouraged by the Bush
Administration settlement allowing Microsoft to increase its
stranglehold on operating systems. Please do not sell out the
intrests to future generations allowing greed collusion to dictate
to future generations what our public officials do not have the
courage to do. Do not accept the Department of Justice Settlement.
Maintain the future health of competitors such as Apple and the
open systems such as Linux. We as consumers deserve a choice. Have
the courage to stop the arrogance of Microsoft please rule against
the proposed settlement.
MTC-00028709
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I believe the settelment is in the best intrest of all
concerned. lets stop the antics of aol and other companys and
individuals who have a hidden agenda what have there contributions
been to all compared to microsoft.
MTC-00028710
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
As I can see that the U.S.Attorney for the Department of justice
is looking out for the right of the Computer would and that no one
should be ably to hold the computer world down and that mead
Mictosoft
MTC-00028711
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
At a meeting of the Executive Board of The Hatfield Chamber of
Commerce today the Board voted unanimously to voice their support of
the Proposed Microsoft/Department of Justice Antitrust Settlement.
It is our belief that this settlement is a tough fair and
reasonable compromise that is in the best interest of
everyone--;the technology industry the economy and especially
consumers. Thank you.
Hatfield
Chamber of Commerce P.O. Box 445 Hatfield PA 19440
MTC-00028712
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
[[Page 28417]]
If there has ever been any doubt that AOL does not want a fair
and expedient solution to it s legal challenge to Microsoft then it
s latest legal action should remove a all doubt. The irony of all
their actions is that there has never been a ground swell of
consumer complaints stating that the consumer has been hurt by
Microsoft business practices. It is obvious that AOL Time Warner is
trying to use the courts for it s own competitive purposes. It is
also time to challenge whether AOL is monopolistic in it s own
business as the largest internet provider. If AOL should in fact buy
the Linux operating system I suppose we will see yet another
challenge to Microsoft in the courts. For the sake of the technology
industry the nation s economy and America s consumers let s get
these issues out of the courts and into the competetive marketplace
where they should be.
Jack D. Reece
419 Chesterwoods Court
High Point
NC 27262 336-;841-;7810
MTC-00028714
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
Microsoft is making a mockery of the DOJ. Who is getting paid
off? All your excuses are lame this is an embarrassment.
MTC-00028715
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I believe that the proposed DOJ settlement offer is fair. I hope
that this matter can be resolved and that this great company can get
on by the business of innovation. Thank you
Eva Stubits
MTC-00028716
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
The Department of Justice Settlement is a total non-settlement
which deserves investigation in it own right. I feel that the anti-
competitive practices are being actively encouraged by the Bush
Administration settlement allowing Microsoft to increase its
stranglehold on operating systems. Please do not sell out the
intrests to future generations allowing greed collusion to dictate
to future generations what our public officials do not have the
courage to do. Do not accept the Department of Justice Settlement.
Maintain the future health of competitors such as Apple and the
open systems such as Linux. We as consumers deserve a choice. Have
the courage to stop the arrogance of Microsoft please rule against
the proposed settlement.
MTC-00028717
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I can not see where Microsoft has hurt anyone except for their
feelings. The Government settlement is more than fair.It is time for
the cry babies to go home!
MTC-00028718
From: Chris Carman
To: Microsoft ATR
Date: 1/28/02 5:06pm
Subject: reasons against the settlement
I know I might be sending this a bit late, but I just found out
about the open comment period and I'd like to say a couple things
from an educator's point of view.
I teach two computer classes--;one in web site design and
programming, the other in computer & network support (aimed at
CompTIA's A+ and Network+ tests). Our high school uses Windows PC's
almost exclusively because of a directive from our school board that
has more or less banned Macs due to their lack of presence in most
businesses. I primarily use Macs at home, but I also have 3 PC's and
am very comfortable with the Windows and Linux operating systems
(I'm A+, Network+ and Linux+ certified).
The settlement is bad for consumers, educators, students and the
country as a whole for two major reasons.
The first reason is that educators and students would have very
little say in what products are chosen to be placed in their
classrooms. Deep discounts from Microsoft and used PC heardware not
only limits choices, but also increases tech support costs for the
school. I did an observation at an inner-city high school in
Cincinnati when I was in college, and five brand-new PC's sat in a
corner because kids had stolen the balls from inside the mice and
they were rendered useless. Of course, a $2 mouse ball would have
fixed this, but with very little tech support in that district, the
technology is wasted. If you want to do anything with schools, give
them some money for equipment but give a lot more money for tech
support training and increased salaries for tech coordinators to
attract more qualified individuals.
The second, and most important reason, is that the settlement
does absolutely nothing to curb Microsoft's future domineering
behavior. In fact, they come out looking like the good guys by
donating to impoverished schools while increasing their installed
user base! This sort of thing cannot be allowed to happen.
The Windows APIs that allow programs to run inside the Windows
Operating System should be opened up for everyone to download, use,
interpret, and include in another OS. For example, if Mac OS X could
run Windows programs natively, it would be a dramatic improvement
for the computer industry as a whole because it would provide some
serious competition for Microsoft. If you look back to the beginning
of the computer industry, IBM was very slow to improve its original
8086 and 80286 computers until competition (in the form of Compaq
clones) came along. The same thing happened with Intel, which rested
on its laurels until AMD released a chip (the Athlon) that was
faster and cheaper than their Pentium 3.
Competition is good for the industry. Please don't allow
Microsoft to get away with this sort of bribery.
Chris Carman
Hamilton, Ohio
MTC-00028719
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
On belief of the Tech World further delays of the D. of J. in
the decision re: MICROSOFT are simply causing greater expenditures
of the tax payers money. Furthermore the remedy that was proposed by
Microsoft was ideal because it would make available for the most
under-priveledged children a technology that now is almost uniform
in our country. Further delays will simply compound the problem in
teaching.
MTC-00028720
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
As a user of the Microsoft Operating System and bundled software
I have appreciated the ease of having it all in one package. I
believe that most individual consumers would agree. The government
broke up Ma Bell and now there are many larger businesses. All it
did was to make prices rise. To those of us who are retired and hold
stock in these companies such as Microsoft the ongoing dispute over
who is right has only served to hurt the stockholders.
Gordon Fox
MTC-00028721
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
I use Microsoft products and they are pretty average. I believe
they would be better if there was improved and fair competition in
the market place. I strongly believe this site is a pawn in
Microsofts plans to monopolize information technology. To improve
all of out futures rethink your policies and realize that what
Microsoft is doing is wrong.
MTC-00028722
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
Please bring an end to the Microsft suit. The economy has
suffered long enough.
Wes Vernon
MTC-00028723
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
Subject: Microsoft Settlement
The settlement terms are fair to all concerned and should be
implemented without delay. Carl Bearden
State Representative District 16
MTC-00028724
From:
Everett--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 4:57pm
[[Page 28418]]
Subject: Microsoft Settlement
Microsoft creates software they do it better than anybody else.
If there is a better operating system possible the developers can
become the next Microsoft. It is time to stop punishing success in
this country. Microsoft should be praised not hounded. Just leave
them alone. The settlement should just say: Microsoft did it better.
They did nothing wrong. All charges dropped!
MTC-00028725
From: Ken Brown
To: Microsoft ATR
Date: 1/28/02 5:05pm
Subject: Tunney Act Comments
Just to make sure you received our fax, we are sending it one
more time. If there are any problems with the submission you can
call me 703-;608-;4222.
Ken Brown
MTC-00028726
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:08pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D. Street, NW
Suite 1200
Washington, DC 20530-;0001
RE: Microsoft Settlement
Dear Ms. Hesse:
Please find attached the Tunney Act comments of the Computing
Technology Industry Association (CompTIA) relating to Microsoft
settlement.
The attached file is formated in Word Perfect 9. Please let me
know if you have any difficulties downloading and/or formatting this
file and I will be happy to provide it to you in a different format.
Thank you for the opportunity to submit these comments. I would
appreciate your acknowledgment of receipt of these comments. Thank
you.
Lars H. Liebeler
Thaler Liebeler LLP
1919 Pennsylvania Avenue, NW
Suite 200
Washington, DC 20006
Direct: (202) 828-;9867
Main: (202) 466-;4110
Fax: (202) 466-;2693
4350 North Fairfax Drive, Suite 440
Arlington, VA 22203-;1624
Tel (703) 812-;1333
Fax (703) 812-;1337
[email protected]
QQQ
CompTIA
Comments of the Computing Technology Industry Association on the
Revised Proposed Final Judgment in United States v. Microsoft
Submitted to the United States Department of Justice pursuant to
the Tunney Act, 15 U.S.C. u 16
January 28, 2002
I. EXECUTIVE SUMMARY
CompTIA supports the Revised Proposed Final Judgment (RPFJ)
entered into between the United States Department of Justice, nine
states, and Microsoft on November 6, 2001. The RPFJ represents a
reasonable compromise of the parties' respective positions in this
case. The benchmark under which the settlement must be judged is
whether it is consistent with the United States Court of Appeals
June 28, 2001 opinion. The Court of Appeals found that Microsoft
took actions to unlawfully maintain its monopoly in the operating
system market, but also ruled that Microsoft had not attempted to
unlawfully monopolize the Internet browser market nor did it
unlawfully tie its Internet Explorer to the Windows operating
system. The RPFJ represents a reasonable balance of the Court of
Appeals split decision by imposing obligations upon Microsoft in the
areas where it was found liable, and avoiding obligations in areas
where Microsoft's conduct was not found to be unlawful. As such, the
RPFJ is narrowly tailored to fit the violations and will likely
avoid collateral damages to the marketplace. After the November 6,
2001 Proposed Final Judgment was announced many of Microsoft's
competitors complained that the settlement was too lenient. The
antitrust laws, however, make clear that the settlement should not
be designed as a wish list for Microsoft's competitors. The
settlement should fairly address the areas of liability found by the
Court of Appeals. Anything less would encourage Microsoft and other
companies to engage in anti-competitive conduct in the future;
anything more would inappropriately imperil the technology
marketplace and cause harm to consumers.
The terms of the RPFJ insure that the technology sector will
continue to expand and innovate. The settlement places strong and
appropriate checks on Microsoft in areas where such checks are
needed, but is designed in such a way that Microsoft will be able to
compete fairly and aggressively in all markets. CompTIA urges the
United States District Court to approve the settlement and reject
the non-settling states more extensive remedy proposal as that would
erode intellectual property protection, harm competition, and stall
growth in the industry.
The only significant reservation regarding the RPFJ that CompTIA
holds is that the settlement obligates Microsoft to disclose an
abundance of intellectual property to the Plaintiffs and the
Technical Committee. While this technical information is to be used
for the purpose of achieving the interoperability goals specifically
identified in the RPFJ, CompTIA is concerned that the precedent
established by these disclosure provisions will be harmful to the
technology sector in the long run. Innovation and growth in the IT
industry are fostered by strong protection of intellectual property
rights. If every antitrust violation is remedied by a wholesale
forfeiture of valuable proprietary information by the defendant,
intellectual property rights will suffer a significant blow. And,
justifying the forced disclosure of a company's valuable technical
information on the ground that it will be used for interoperability
purposes only is not a sufficient protection. Because there is no
bright line as to what constitutes interoperability information and
what does not, the chance of valuable intellectual property being
compromised is high.
CompTIA's reservation notwithstanding, we believe the settlement
will benefit the industry as a whole and we respectfully urge the
District Court to approve the RPFJ.
II.COMPTIA'S INTEREST IN THIS MATTER
The Computing Technology Industry Association (CompTIA) is the
world's largest trade association in the information technology and
communications sector. CompTIA represents over 8,000 hardware and
software manufacturers, distributors, retailers, Internet,
telecommunications, IT training and other service companies in over
50 countries. The overwhelming majority of CompTIA members are
resellers companies that resell software and hardware to consumers,
businesses, or other resellers. These resellers are vendor-neutral
and their objective is to be able to sell whatever products their
customers wish to buy. In that sense they believe that antitrust
laws should focus primarily on consumer impact rather than
competitor impact. Microsoft is a member of CompTIA as are many of
Microsoft's competitors. In 1998, CompTIA's Board of Directors
adopted a formal policy statement on antitrust.
That statement supports sensible antitrust enforcement that is
based on demonstrable economic effects in the marketplace. CompTIA
believes that market forces typically correct any temporary market
imperfections and that government regulators should only intervene
in the technology marketplace when there is overwhelming evidence of
a substantial and pervasive market failure. Pursuant to its policy
statement, CompTIA has written and spoken frequently on antitrust
issues of relevance to the technology sector. In June 1998, CompTIA
filed an amicus brief in the Intel v. Intergraph litigation in the
U.S. Court of Appeals for the Federal Circuit. In that case
CompTIA urged the court to reject a lower court's finding that
antitrust allegations could be a basis for ordering a company to
disclose its valuable intellectual property. CompTIA co-authored an
amicus brief in the United States Court of Appeals for the District
of Columbia Circuit in the United States v. Microsoft case in
November 2000. The amicus brief urged the Court of Appeals to
reverse the District Court's order breaking Microsoft into two
separate companies and further discussed the negative industry-wide
ramifications of the District Court's liability findings were they
all permitted to stand. The basis for CompTIA's participation as
amicus and submission of these Comments is its interest in the
overall health and prosperity of the technology sector.
III. THE CONSENT JUDGMENT IS IN THE PUBLIC INTEREST AND SHOULD
BE APPROVED BY THE COURT
A. Standards Under Which the RPFJ Should Be Judged
Under the Tunney Act, 15 U.S.C. u 16, the consent judgment
should be approved if it is in the ``public interest.'' The public
interest analysis must be measured by the objectives of the
antitrust laws; public interest concerns that are not within the
purview of the antitrust laws are irrelevant. U.S. v. AT&T, 552
F. Supp 131 (D.DC 1982), affirmed, 103 S.Ct. 1240 (1983).
[[Page 28419]]
Nor is their a requirement that the settlement be, in the eyes
of the District Court, ``the best possible settlement that could
have been obtained;'' the settlement must simply be within the
reaches of the public interest. U.S. v. Agri-Mark, Inc., 512 F. Supp
737 (D. Vt. 1981). In short the District Court should not reject the
consent judgment merely because [s]he believe[s] other remedies
[are] preferable. United States v. Microsoft, 56 F.3d 1448, 1460 (DC
Cir. 1995).
The language of the Tunney Act sets forth specific areas of
inquiry relating to the public interest:
For the purpose of such determination, the court may
consider--;(1) the competitive impact of such judgment,
including termination of alleged violations, provisions for
enforcement and modification, duration or relief sought, anticipated
effects of alternative remedies actually considered, and any other
considerations bearing upon the adequacy of such judgment; (2) the
impact of entry of such judgment upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. u 16(e). Focusing on selected areas identified within
the Tunney Act, CompTIA sets forth its analysis of the RPFJ below.
B. The Competitive Impact of Such Judgment
1. Termination of Violations
The RPFJ closely tracks the liability findings from the Court of
Appeals opinion. First, the settlement prohibits Microsoft from
retaliating against any OEM (original equipment manufacturer)
because of an OEM's participation in promoting or developing non-
Microsoft middleware or a non-Microsoft operating system. This
provision takes the club out of Microsoft's hand and prevents the
company from using anticompetitive means to discourage OEM's from
promoting or preventing rival software from being developed or
installed on the Windows desktop.
The anti-retaliation provisions of the RPFJ even go so far as to
prohibit Microsoft from altering its license with an OEM even if the
OEM offers users the option of launching other Operating Systems
from the Basic Input/Output System or a non-Microsoft boot-loader or
similar program that launches prior to the start of the Windows
Operating System Product.
RPFJ at u III.C.4 (emphasis added). Thus, an OEM has the full
ability to make decisions based on price, features and performance
with respect to whether an alternative operating system will be
loaded on its computers; and that operating system product may
appear to the user before Windows does. This flexibility will insure
that operating systems that compete with Windows will have a full
opportunity to reach the consumer. Once there, the decision about
whether they succeed or fail is in the hands of consumers. These
anti-retaliation provisions deal head on with the bulk of the
conduct the Court of Appeals found to be illegal in the monopoly
maintenance section of its June 28, 2001 opinion.
Second, Microsoft is obligated to adhere to one uniform license
agreement for Windows with the top twenty OEM's and the royalty for
the license shall be made publically available on a web site
accessible by all OEM's. The price schedule may vary for volume
discounts and for those OEM's who are eligible for market
development allowances in connection with Windows products. This
allows Microsoft to continue to compete in all software markets with
other software manufacturers and this competition will continue to
benefit consumers.
Third, OEM's are permitted to alter the appearance of the
Windows desktop to add icons, shortcuts and menu items for non-
Microsoft middleware, and they may establish non- Microsoft programs
as default programs in Windows. Consumers also have the option of
removing the interface with any Microsoft middleware product.
Fourth, Microsoft must reveal the API's used by Microsoft
middleware to interoperate with the Windows operating system.
Microsoft must also offer to license its intellectual property
rights to any entity who has need for the intellectual property to
insure that their products will interoperate with the Windows
operating system.
These central features of the settlement insure that other
companies have the ability to challenge Microsoft products, both in
the operating system and middleware/applications markets, and are
not unfairly shut out of those markets as a result of Microsoft's
operating system monopoly. Consumers and OEM's have far greater
freedom to install and use non- Microsoft products, Microsoft is
prohibited from retaliating against any entity who promotes non-
Microsoft programs, and all companies have equal access to Microsoft
API's and technical information so that non-Microsoft middleware has
the same opportunity to perform as well as Microsoft middleware. At
the same time the RPFJ does not prevent Microsoft from integrating
new technology into the Windows operating system and does not
prohibit Microsoft from competing in any market that it chooses to
enter. Such restrictions would have harmed consumers and been
antithetical to the goals of the antitrust laws.
Because the RPFJ adheres closely and effectively addresses the
liability findings of the Court of Appeals, it is a reasonable
settlement and therefore in the public interest. Finally, the Court
of Appeals directed the District Court to consider whether there is
a causal connection between Microsoft's anticompetitive conduct and
its dominant position in the OS market. United States v. Microsoft,
253 F.3d 34, 106 (DC Cir.), cert. denied, 122 S.Ct. 350 (2001). And
while this direction was made in the context of whether structural
relief is appropriate, it is logical to conclude that the foundation
of that inquiry remains highly relevant even though structural
relief is no longer at issue in this case. In the absence of
evidence that the marketplace would have looked any differently
absent Microsoft's anticompetitive behavior, the RPFJ provisions
that enjoin the conduct found unlawful by the Court of Appeals are
appropriate and in the public interest. Any remedy that extends
beyond the monopoly maintenance findings by the Court of Appeals
would not be in the public interest absent a finding of causal
connection showing actual harm in the marketplace, and clear
evidence of how the remedy would obviate the harm, while avoiding
collateral damage to the marketplace.
2. Commingling of Software Code
Bundling can also capitalize on certain economies of scope. A
possible example is the ``shared'' library\1\ files
that perform OS and browser functions with the very same lines of
code and thus may save drive space from the clutter of redundant
routines and memory when consumers use both the OS and browser
simultaneously.
---------------------------------------------------------------------------
\1\Id. at 87.
---------------------------------------------------------------------------
Some may criticize the settlement because the RPFJ does not
address the issue of Microsoft's commingling of operating system
code and Internet Explorer code which was found to be unlawful. See
United States v. Microsoft, 253 F.3d 34, 66 (DC Cir. 2001). The
Court of Appeals concluded that Microsoft's commingling of code
deters OEMs [original equipment manufacturers] from pre-installing
rival browsers, thereby reducing the rivals'' usage share and,
hence, developers'' interest in rivals'' APIs as an
alternative to the API set exposed by Microsoft's operating system.
Id.
While Microsoft vigorously contested this finding of fact, and
the Court of Appeals elsewhere acknowledged potential efficiencies
from commingling of code, the Court denied1 Microsoft's petition for
rehearing on this issue. In denying Microsoft's petition, however,
the Court of Appeals expressly noted that [n]othing in the Court's
opinion is intended to preclude the District Court's consideration
of remedy issues. Order, August 2, 2001. Thus, the Court of Appeals
signaled that its finding that Microsoft unlawfully commingled code
does not necessarily mandate a remedial order requiring Microsoft to
separate the code. Given the variety of other provisions in the RPFJ
that encourage OEMs to place non-Microsoft middleware on the
desktop, the consent judgment does not fail for the fact that it
does not require Microsoft to separate the code. In the overall
totality of circumstances, it is reasonable to conclude that the
public interest would be better served by avoiding an order that
would require Microsoft to engage in a fundamental redesign of its
operating system. The object of such a remedy is effectively
addressed through other provisions that do not harm consumers.
3. There are no Loopholes in the RPFJ
Some critics of the settlement have opined that the RPFJ
contains loopholes in the language that requires Microsoft to
disclose APIs (application programming interfaces) to software
developers. See Washington Post, Wording of Microsoft Deal Too
Loose, Analyses Say, January 18, 2002, E01. The settlement requires
Microsoft to make such disclosures with respect to its browser,
Internet Explorer, and other software such as Windows Media Player
so that software developers may create competing software that
interoperates with the Windows operating system. The allegation that
the
[[Page 28420]]
settlement has loopholes in this regard, however, is based on a
faulty interpretation of the plain language of the settlement
agreement. Section III.D of the RPFJ requires Microsoft to make
available the APIs and related Documentation that are used by
Microsoft Middleware to interoperate with a Windows Operating System
Product. The term Microsoft Middleware is defined as software code
that is contained within the operating system, but for which updates
are distributed separately. The definition also requires, inter
alia, that the software code be trademarked. The two programs cited
by critics of the settlement as possibly excluded from disclosure
requirements, Internet Explorer and Windows Media Player, are,
however, clearly within the definition. Both are included within the
Windows operating system as an initial matter and updates to both
are distributed
A comprehensive list of downloadable updates to software that is
contained within the Microsoft operating system is located at the
following url: Updates to Internet Explorer and Windows Media Player
are distributed on this site.
Publically available trademark information indicates that
Internet Explorer is trademarked under serial Nos. 75663324 and
75340051 (assigned from Synet Inc.) and Windows Media, including
descriptions of Windows Media Player are trademarked under serial
Nos. 75663200, 75517785, and 75517786. separately. Moreover, both
the logos and the words covering Internet Explorer and Windows2
Media Player are trademarked.3
A natural reading of the RPFJ demonstrates that there are no
loopholes that would frustrate the overall intent of the document.
The definitions are constructed in such a way to give meaning to
certain terms, including middleware, that otherwise would be
susceptible to a wide variance of interpretation. While some who are
critical of the settlement may prefer broader definitions of certain
terms, the danger in over-expansive definitions is that they exclude
nothing and thus become unworkably vague.
4. Provisions for Enforcement and Modification CompTIA has
carefully analyzed the enforcement provisions of the RPFJ and
concludes that the enforcement provisions are stringent, thorough,
comprehensive, and are carefully designed to insure that Microsoft
comply with the substantive terms of the settlement agreement.
In addition, the terms are creative in that they include
provisions that are likely to speed the resolution of consumer and
competitor disputes, rather than result in additional lengthy
litigation over the terms of the settlement. In sum, CompTIA finds
little support for the characterization of the enforcement
provisions as weak, and instead believes that the enforcement
mechanisms are strong, effective, and will likely provide quick and
effective resolution of any disputes under the agreement.
Plaintiff's Powers to Enforce: The RPFJ specifically provides
that the United States or any of the individual states involved in
the case have responsibility for enforcing the Final Judgment. To
facilitate this enforcement, the Plaintiffs have the right to:
! inspect all books, records, ledgers, or any document within
the control of Microsoft;
! inspect all source code for any Microsoft program;
! interview any Microsoft employee, and record such interview;
! order Microsoft to prepare any report under oath regarding any
matter in the Final Judgment.
These access provisions give the Plaintiffs essentially
unfettered ability to obtain any piece of information that they seek
with respect to Microsoft's compliance with the Final Judgment.
There is no loophole or exception that would prevent the Plaintiffs
from acquiring information relating to Microsoft's compliance with
the settlement. Further, any information obtained by the Plaintiff's
may be presented directly to the Court in order to secure
Microsoft's compliance.
The Technical Committee: In addition to the wide latitude given
to the Plaintiffs to inspect Microsoft documents, code, and
personnel, the settlement agreement also establishes an independent
three person Technical Committee (TC). This TC will be made up of
experts in software design and programming and shall establish
permanent offices at Microsoft's Redmond campus. The expense of the
TC shall be paid by Microsoft and the TC shall have the power to
hire any consultants necessary to assist them in their duties.
The TC's sole function is to monitor Microsoft's compliance with
its obligations under the Final Judgment. Thus, the TC has complete
access to all Microsoft documents, computer programs, personnel,
equipment, and physical facilities. The TC members may direct
Microsoft to prepare reports of any information and in any format
the TC desires.
Most significantly, the TC will have complete access to the
confidential source code of Microsoft's programs. The TC may study
the code, interrogate the code, and interact with the code in order
to insure that Microsoft is complying fully with the Final Judgment.
The TC may interview any Microsoft employee regarding the source
code and its operation. Again, there is no loophole or exclusion
that would prevent the TC from obtaining any piece of information in
any way related to Microsoft's compliance with the agreement.
And, any information obtained by the TC may be shared with the
Plaintiffs and the Court. Indeed, the TC has an obligation to report
its activities to the Plaintiff at regular six- month intervals. If,
however, the TC has reason to believe that a violation of the
agreement has occurred, it is obligated to report that fact
immediately to the Plaintiffs and provide a written summary of the
nature of the violation. The Plaintiffs may then immediately
initiate a contempt proceeding against Microsoft in the U.S.
District Court as that Court has ongoing jurisdiction to enforce the
terms of the Final Judgment.
Microsoft's Internal Compliance Officer: Another important
aspect of the RPFJ is a provision requiring Microsoft to appoint an
internal compliance officer. This person has the responsibility to
administer the company's compliance with the settlement agreement.
The officer must circulate a copy of the Final Judgment to all
officers and directors of the company and brief those people on the
meaning of the Final Judgment and the requirements of the U.S.
antitrust laws. The compliance officer is responsible for securing
the written certification from each and every officer and director
in the company that they understand the terms of the Final Judgment,
agree to comply with its terms, and that they understand that
failure to comply may result in a finding of contempt of court.
Dispute Resolution: Any person may submit complaints concerning
Microsoft's compliance with the Final Judgment to either the Justice
Department, the States, the Technical Committee, or the Compliance
Officer. Upon receipt of a complaint from any person the Plaintiffs
may initiate an enforcement proceeding with the Court and seek to
hold Microsoft in criminal or civil contempt. The Court has wide
latitude to interpret the agreement, order compliance with the
agreement, and/or impose fines or other sanctions upon the company.
Notwithstanding the Plaintiffs' ability to immediately seek
Court intervention to resolve compliance issues, other dispute
resolution mechanisms are available under the agreement. These less
formal procedures allow complainants to quickly resolve compliance
issues with the assistance of the independent Technical Committees's
extensive knowledge of the Company's activities. Any person may
submit a compliance issue to the Technical Committee for
investigation. The TC shall investigate complaints, bring them to
the attention of the Microsoft Compliance Officer and advise
Microsoft of its conclusions and proposal for cure. The identity of
any complainant may be kept from Microsoft to insure that no
retaliation could possibly occur.
The only limitation placed on the TC's work is that its findings
or recommendations in a informal dispute proceeding may not be
admitted as evidence in Court, nor may the TC members be called to
testify. This restriction does not interfere with the TC's
responsibility to inform the Plaintiffs of any violation, explain
the details of that violation, and provide supporting evidence to
the Plaintiffs. Similarly, the restriction does not impede the
Plaintiffs' ability to obtain and present all information obtained
from Microsoft to the Court in support of the alleged violation.
Instead, it permits the TC to actively and aggressively use every
method possible to quickly negotiate the resolution of disputes
between complainants and Microsoft without having the work-product
of that negotiation process made public. Protecting the TC members
from having to testify is consistent with the rules of every
mediation session undertaken within the U.S. legal system. It
encourages the parties to be fully candid and forthcoming before the
TC in attempting to resolve disputes under the settlement agreement.
In sum, the extensive power and access that the TC has under the
settlement agreement insures that the informal complaint procedure
will not be a dead letter. Because the TC has full access to every
book, record, person, and program at Microsoft, and has the ability
to order
[[Page 28421]]
Microsoft to prepare any report it wishes, the TC can make life very
difficult for Microsoft. Indeed, Microsoft has great incentive to
satisfy the TC and avoid compliance issues altogether. The TC will
provide an effective procedure for quick resolution of complaints
against Microsoft typically far quicker than if a contempt
proceeding were initiated.
The enforcement provisions of the RPFJ grant extremely broad
powers of access to both the Plaintiffs and to the independent
Technical Committee. Both entities have the power to present the
information they obtain from Microsoft to the Court to insure
Microsoft's compliance with the settlement agreement. The Court has
wide discretion in punishing Microsoft for violations of the Final
Judgment and the RPFJ specifically provides that the terms of the
agreement may be extended for an additional two years if Microsoft
has engaged in a pattern of willful violation. The RPFJ also
includes a wide array of formal and informal dispute resolution
mechanisms that give a complainant maximum ability to resolve
disputes quickly and fairly. Charles James, head of the DOJ's
Antitrust Division, testified that [t]he proposed decree contains
some of the most stringent enforcement provisions ever contained in
any modern consent decree. CompTIA's review of the enforcement
procedures supports Mr. James' conclusions. The establishment of an
exceptionally powerful Technical Committee as a permanent fixture on
Microsoft's campus is unprecedented. The Technical Committee's
investigatory duties and duties to report directly to the Plaintiffs
insures that the enforcement provisions have the power necessary to
force Microsoft to comply with the substantive terms of the Revised
Proposed Final Judgment.
C. Anticipated Effects of Alternative Remedies Actually
Considered
While the November 6, 2001 Revised Proposed Final Judgment goes
beyond the liability found by the Court of Appeals in some areas
(i.e., by requiring Microsoft to disclose its confidential technical
information relating to servers), the non-settling States' proposal
filed on December 7, 2001 goes so far beyond the judgment as to bear
little relationship to the Court of Appeals decision.
The centerpiece of the states'' remedy demand is that
Microsoft be compelled to create and market a stripped down version
of its Windows operating system that would not include many of the
features that current versions of Windows do include. Since
consumers can now easily remove Microsoft features from their
desktop and OEM's are free to place non-Microsoft programs on the
desktop, it is difficult to see how this requirement would benefit
consumers.
Instead of giving consumers more choices of software products,
this unwarranted intrusion into marketing and design decision by the
non-settling States would cause further delays in the development of
software created to run on XP, with developers waiting to see which
version would become the standard. Such delays would further
postpone the salutary effects of XP on the computer market. It would
also hamper programmers'' ability to take full advantage of
technological improvements in Windows, creating a marketplace in
which the same software applications would not necessarily have the
same functionality. This remedy would balkanize the computing
industry and would undermine the benefits consumers obtain from a
standardized operating platform.
In addition to the stripped down version of Windows, the
December 7, 2001 proposal would also require Microsoft to continue
licensing and supporting prior versions of Windows for five years
after the introduction of a new version of Windows. The primary
effect of this requirement is to impose unnecessary costs upon
Microsoft (that would likely be passed on to consumers) and reduce
the incentives for Microsoft to improve the operating system. This
disincentive to Microsoft to make technological advances would
ripple throughout the software industry as applications developers
would not have an advancing platform to write software to.
The non-settling States remedy proposal also includes a variety
of restrictions that will have little if any quantifiable benefit to
consumers but which will simply advance the interests of Microsoft
competitors. Consumers and OEM's currently have full ability and
freedom to include Java software on their computers; the States'
requirement that Microsoft carry Java on all copies of Windows does
not provide consumers or OEM's with any more choice than they
already have. Similarly, the requirement that Microsoft continue to
produce an Office Suite for Macintosh interferes with natural market
forces that direct resources to the best use and may actually
preclude the success of competing applications software. Directing
Microsoft to produce and support any software without regard for
market forces is likely to harm consumers, not help them. Moreover,
the November 6 Proposed Judgment fully addresses and prevents
Microsoft from retaliating or taking any anticompetitive actions
against Apple.
Advances in technology are frequently made as a result of joint
ventures between competitors. The Department of Justice and the
Federal Trade Commission have recently released guidelines for the
formation of such joint ventures. Notwithstanding the recognition by
these enforcement agencies that most joint ventures are pro-
competitive, the non-settling States seek to restrict Microsoft from
entering into joint ventures whereby the parties to the joint
venture agree not to compete with the product that is the subject of
the joint venture. This restriction will chill innovation and
prohibit countless consumer welfare enhancing arrangements.
Further, this proposal flatly ignores the fact that the Court of
Appeals found in Microsoft's favor on the issue of the alleged
illegality of its joint venture proposal to Netscape. The most
harmful of the remaining remedy proposals include those that require
the extensive and mandatory sharing of Microsoft's source code,
without compensation to Microsoft.
The non-settling States proposals in this regard go well beyond
those in the November 6 Proposed Final Judgment and appear to be
aimed at benefitting Microsoft's competitors rather than insuring a
level playing field for all participants in the software industry.
In the absence of compelling justification for wholesale and forced
disclosure of a company's intellectual property, the harm caused by
such disclosure is unwarranted and harmful to the entire technology
marketplace. The vigorous protection of intellectual property has
fueled the rapid and dynamic growth of the technology industry.
Actions that erode protections for intellectual property should be
viewed with great trepidation.
The long term effects of the conduct restrictions proposed by
the non-settling States encourage continued litigation, rather than
competition in the marketplace.
IV. CONCLUSION
The RPFJ will never be and cannot be all things to all people.
But, in the end, it is a reasonable result given the respective
positions of the both sides in this litigation. In assessing the
effectiveness of the current settlement, the Court should recognize
that the marketplace is far different than it was at the time the
case was originally brought in May 1998. The Court of Appeals spoke
to this very issue:
[J]ust over six years have passed since Microsoft engaged in the
first conduct plaintiffs allege to be anticompetitive. As the record
in this case indicates, six years seems like an eternity in the
computer industry. By the time a court can assess liability, firms,
products, and the marketplace are likely to have changed
dramatically. This, in turn, threatens enormous practical
difficulties for courts considering the appropriate measure of
relief in equitable enforcement actions, both in crafting injunctive
remedies in the first instance and reviewing those remedies in the
second. Conduct remedies may be unavailing in such cases, because
innovation to a large degree has already rendered the
anticompetitive conduct obsolete (although by no means harmless).
United States v. Microsoft, 253 F.3d 34, 49 (DC Cir. 2001).
CompTIA does not interpret the Court of Appeals' language to
support the proposition that minimal or no remedies should be
imposed upon Microsoft because advancing technology has made the
browser wars or other issues in the 1998 lawsuit irrelevant at this
point in time. However, it appears that those who now seek to impose
more far-reaching remedies against Microsoft are excessively focused
on the marketplace as it was in 1998, ignoring its state in 2002.
The advances in server technology, wireless and handheld devices,
and web based applications all diminish the overall competitive
significance of the Windows desktop. Thus, for example, the goal of
attempting to inject more competition into the browser market at
this time has little competitive significance to the overall
technology marketplace.
The goal of the settlement in this case should not be to
penalize Microsoft for past behavior, nor should it be to benefit
Microsoft's competitors by forcing Microsoft to license its source
code against its will. The settlement should insure that Microsoft
does not engage in the actions found unlawful by the Court of
Appeals. This consent judgment does just that and therefore it
should be approved.
[[Page 28422]]
Respectfully Submitted,
Lars H. Liebeler, Esq.
Thaler Liebeler LLP
1919 Pennsylvania Avenue, NW
Suite 200
Washington, DC 20006
CompTIA Antitrust Counsel
(202) 828-;9867
MTC-00028727
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:07pm
Subject: Microsoft
To Whom It May Concern:
I would like to express my opinion on the Microsoft settlement:
1- There should never have been a need. If microsoft competetors
can't handle the competition, then its time for them to get out of
the business (just as anyone else in business would).
2- Since there seems to be a need for a settlement, I think
microsoft has offered one that is more than adequate.
3- Get the government out of the way of progress.
Thanks for this opportunity.
R.E. Lee
MTC-00028728
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 5:08pm
Subject: Microsoft Settlement
I think the facts, as well as the opinions, are in and it is
time for the Department of Justice to act firmly against Microsoft.
It has long been know that Microsoft has used it position to squelch
competition and stifle creativity. Microsoft has used its position
to deliver products that were full of flaws and demand premium
prices. This, in light of their predatory practices, should not be
tolerated.
Please take this opportunity to open up this monopoly to other
players and get the economy back on track.
Verizon Communications
Bruce T. Granger, M.I.S.
Enterprise Solutions Group
Manager--;Network Integration
Senior Network Integration Engineer--;CCNA, CCNP
Work--;972.718.3174
Fax--;972.718.3336
Mobile--;214.789.4630
MTC-00028729
From: Robert McConnell
To: Microsoft ATR
Date: 1/28/02 5:08pm
Subject: Microsoft Settlement
In response to the government's request for comments on the
proposed Microsoft Settlement:
As a computer professional with over three decades of experience
writing software for a variety of operating systems including
Windows, and as one-time fan of Microsoft, I would like to make two
points. The first is to suggest one route which in the absence of a
breakup I expect Microsoft to continue to exploit to maintain it's
monopoly. The second point is to call attention to a related danger
from Microsoft's monopoly which I believe is accelerating the flight
of manufacturing from the US to foreign countries.
First the monopoly preservation strategy:
Most competent computer programmers can, if they wish, write and
document functioning code which is virtually incomprehensible to any
other competent programmer (including the author him/herself).
Moreover said author can almost certainly (disingenuously but
successfully) argue in a court comprised of non-experts that the
code is straightforward, well-documented and easy to understand.
What does this have to do with Microsoft maintaining and
extending their monopoly? Everything. Whether hardware or software,
it is in the interests of the creator of any product to facilitate
use by the consumer while hiding as much of the internal workings as
possible to discourage competition. Microsoft's strategy has been to
continuously expand the boundaries of it's ``operating
system'' (more properly now an operating environment)
enveloping or attempting to envelope entire classes of applications,
office, networking, on-line shopping, manufacturing etc... within
the boundaries of the ``operating system''. This can be
done explicitly as in the case of Internet Explorer, or implicitly
by simply making it difficult and or prohibitively expensive for
outsiders to access, or even know about, operating system or
hardware features which may be important for fields Microsoft
dominates, or wishes to dominate. The ``browser wars''
were about exposing the inner workings of Microsoft's operating
system so others might use them.
Because of the ease of writing and defending impenetrable code
Microsoft already has an almost unlimited ability to restrict access
to the core of the operating system and to the hardware beyond,
whether or not a court orders it to provide access. Microsoft sells
just enough tools to access selected parts its operating environment
to be able to provide lip-service to openness. Generally speaking
the products are scaled in such a way that only those who have made
a large commitment, financial or ``sweat equity'' which
will tend to lock in their allegiance to Microsoft are allowed
access to the more powerful tools.
Because of the high barrier created by the impenetrability of
the Microsoft code, it is hard to imagine any remedy short of a
breakup will be able to curtail Microsoft's illegal monopolistic
practices.
The second comment, related to manufacturing flight, is
contained in a letter I sent to the Attorney General general of
Massachusetts several months ago. The text follows:
Dear Mr. Attorney General,
I must congratulate you and your staff on the stand you have
taken against the proposed Microsoft settlement.
I am a software developer who has long been appalled by the
relentless manner in which the American public interest continues to
be steamrolled by the Microsoft juggernaut. Therefore I was shocked
by the decision by the Justice Department to take the breakup option
off the table. It is my opinion that this option offered the only
chance to restore competition to the software marketplace. Needless
to say, I was further dismayed by the terms of the proposed
settlement.
As you are obviously well aware, under the guise of
``innovation'' Microsoft has succeeded in stifling true
innovation in many ways. Much of the damage done by Microsoft is not
as a result of overt actions towards the ``victim''
whether an individual or a company. Rather it is in creating an
environment in which the fate of others who have tried to innovate
in the face of Microsoft serves as a deterrent to further
innovation. Of course this type of deterrence by example does not
carry the connotation of physical danger as might be expected from
similar threats by organized crime or terrorists.
Nevertheless it is quite effective. This is an environment in
which:
1. Intelligent software developers know that they have little
chance of being successful unless they join the Microsoft camp. Once
in that camp more of a developer's time will be likely spent keeping
up with Microsoft's complexity-increasing-whims than improving their
product.
2. Intelligent funding institutions know from history that there
is no point in developing a product in a market in which Microsoft
is known or believed to have interest. The best one can hope for in
the case of a very successful product is the opportunity to sell the
product to Microsoft at a price determined only by the latter.
3. The required ``operating system'' (now more
properly an operating environment) is so complex as to create a huge
barrier between the creative idea of a researcher, developer, or
engineer and its implementation into a useful product.
I'm reminded of a university researcher's website I saw several
years ago. The researcher noted that he was using older, and by then
outdated, analysis software for his research. Although he had
written the original software himself, he believed that the new
requirement of interfacing with Windows had introduced such
complexities that he could not afford either the time to update the
software himself, or the money to to hire a Windows specialist to
update it for him. Whether or not the researcher's assumption was
actually true, Microsoft literature and promotions (the so-called
FUD factor) would certainly lead him to this conclusion. Hence his
further research in this field was stymied.
4. Similarly the Microsoft ``one size fits all''
operating system and tools, interposed between America's
manufacturing engineers and the computer, hamper their creative
efforts. Modern Windows software effectively prevents these
engineers from writing high speed one-of-a-kind applications
necessary for the most efficient manufacturing. Ten years ago the
same engineer would have had no trouble writing this type of
software.
As a Senior Member and member of the Peer Review Committee of
the Machine Vision Association of the Society of Manufacturing
Engineers I became personally concerned about this issue several
years ago. I was particularly worried that is resulting in
substantial advantages for manufacturing facilities in foreign
countries and earlier this year prepared the attached document.
[[Page 28423]]
I'm not sure any of this will be of any help in the successful
resolution of the Microsoft situation, However I thought it might be
helpful in explaining why at least one of us is behind you.
Again, congratulations and good luck on your stand!
Sincerely,
Robert McConnell
CC:Attorney General Tom Reilly
MTC-00028730
From: Jim D. Kirby
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 5:09pm
Subject: Microsoft Settlement
They say hindsight is 20-;20. Sometimes we get the benefit
of hindsight prior to the fact. In this case, the emerging Enron
scandal shows us exactly what the Bush administration was attempting
in their settlement with Microsoft: corporate capitulation.
The proposed settlement between Microsoft and the Federal
government reeks of nepotism, favoritism and backroom shenanigans.
Enron has shown us how our executive branch operates; please do not
let similar actions favoring Microsoft provide yet more fodder for
our growing recession.
Jim Kirby
Senior Network Engineer/Architect
Wells'' Dairy, Inc.
Main: 712-;546-;4000 Direct: 712-;548-;2919
Fax:
712-;548-;3106
mailto:[email protected] http://
bluebunny.com
MTC-00028731
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:01pm
Subject: Microsoft Settlement
I am dismayed by the DOJ action against Microsoft. It makes me
ashamed to be an American. I urge the court to dismiss the suit
entirely, or, failing that, to impose the mildest sanctions
possible.
I use Microsoft's software on a regular basis--;it's
certainly improved my life. While I prefer using Macintosh computers
to PCs running Windows, I have nothing but admiration for
Microsoft's accomplishments. Claiming there are no alternatives to
Microsoft products is laughable. Not only are there a host of
alternatives, but if Microsoft were ever to attempt to charge
exorbitant rates for its wares I and a host of others would rush in
to compete.
To say that Microsoft has a monopoly for PC operating systems is
meaningless. What makes an ``industry standard'' PC
standard is precisely the fact that it runs Windows. Microsoft has a
monopoly in the same sense that Tom Clancy has a monopoly on
``The Hunt for Red October''. This monopoly is the right
of a producer to his product--; it is guaranteed by Section 8 of
the U.S. Constitution.
Microsoft has never harmed me, nor do I ever expect it to. How
could it? My transactions with Microsoft are voluntary. This court,
however, can harm me and every American. By restricting Microsoft's
freedom everyone's freedom is restricted. This would be too big a
price even if there were a public interest to be served by such a
restriction. In fact there is none. It is Microsoft who has been
serving the public, as evidenced daily by those who voluntarily
purchase Microsoft's products. Whether or not they realize it, even
Microsoft's competitors benefit from Microsoft's presence, which
spurs them to added effort and ever-higher levels of quality. Were
it not for Microsoft many of them would not exist! Without Microsoft
most computers might still be running CP/M--;that would be a sad
state of affairs.
Adam Wildavsky
President
Tameware, LLC
33-;39 80th St. No. 32
Jackson Heights, NY 11372
[email protected] http://www.tameware.com
MTC-00028732
From: Chris Carman
To: Microsoft ATR
Date: 1/28/02 5:10pm
Subject: one more comment
I wrote an earlier comment against the settlement, but I wanted
to add one last thing--;Microsoft should not be allowed to
engage in any ``exclusive contracts'' (ie, a computer that
is shippsed booting Windows is only allowed to boot Windows and
cannot boot or include another operating system like Linux or
BeOS--;this is why Dell, IBM, etc. won't sell PC's that have
both Windows and Linux ) for at least the next ten years. This would
be roughly in line with how long Windows has been around. Just a
thought. Thanks!
Chris Carman
Hamilton, Ohio
MTC-00028733
From: George Van Treeck
To: Microsoft ATR
Date: 1/28/02 5:10pm
Subject: Microsoft Settlement
I would like to comment on section III.J.1 and III.J.2 of the
proposed settlement. I worked at company last year that asked for
information on a network communication protocol so that we could
make our product work their products. Microsoft didnt refuse, they
repeatedly failed to respond to the requests in any way. And
sections III.J.1 and III.J.2 are so ambiguous in interpretation that
there they could use it as an excuse to provide information,
effectively squashing small companies who cant afford the legal
warfare to compel a disclosure.
An example of how section III.J.1 and 2 could be used a smoke
screen by Microsoft to deny access to communication protocols and
APIs for security reasons: Virtually all security systems software
is designed in such a way that even if you do know how the software
works, it is virtually impossible to break it. For example, the
software for the PGP encryption algorithm is public knowledge and
used by a large number of people, because knowledge of how the
encryption works does not help in breaking the code. In fact, public
knowledge helps people identify potential problems early before the
there is wide adoption. Microsoft can claim a large portion of their
product falls under section III.J.1 and 2, when in fact, knowing the
details does not lessen security in any measurable way. Small
companies would not have the resources to contest this.
As a software engineer, I found most of Microsofts arguments
about the need to inextricably bind their browser to the operating
system very odd.
Fact #1: Microsofts Internet Explorer browser runs on Apples
operating system and a UNIX version also existed. Further, their
first versions of Microsoft IE ran without tight integration into
its own operating system. So, the claim about it needing to be
inextricably bound to the operating system to ``provide a
better experience'' is without any merit.
Fact #2: Every competent software engineer will tell you
that reliable and maintainable software is designed in pieces with
very clearly defined interfaces that encapsulate and hide internal
details of each piece. This makes it possible to keep defects in one
piece from breaking things inside other pieces. Further, this
encapsulation with well-defined interfaces makes it easy to pull out
one piece and replace it with a better piece in the future, without
breaking all the other pieces (makes future enhancements easier).
This is analogous to replacing the incandescent light bulb in your
lamp with a more energy efficient light bulb both bulbs use the same
screw-in interface to your lamp).
Are we really to believe that all those top talent engineers at
Microsoft are NOT using basic design principals of encapsulation and
well-defined APIs, that would allow them to easily pull out a
current version of their Internet Explorer and with a future
enhanced version (and therefore also allow a third party browser to
also use that same well defined interface to plug their browser in)?
Microsoft cant have it both ways: They're a competent software
company who can speak with authority in court (design code that
encapsulates internals with well-defined APIs) or the browser is so
inextricably tied that another browser can not easily replace it
(and thus can't believe what they say because they're incompetent).
I know Microsoft has some of the sharpest software engineers
around. I know they write some pretty good software. So, this means
their executive's excuses for Microsoft's behavior are not credible.
So, what does this indicate about Microsoft executives attitude
and how they are likely to interpret an ambiguous settlement
agreement? Will appointing a review committee that is not highly
technical in specialized areas of software (e.g., specialied
security) interpret this agreement in the public interest?
MTC-00028734
From: Sean Ryan
To: Microsoft ATR
Date: 1/28/02 5:11pm
Subject: Microsoft Settlement
Your Honor,
I am writing to voice my displeasure with the Proposed Final
Judgment in the Microsoft Anti-Trust Case. The PFJ has three major
flaws.
1. It does not terminate Microsoft's illegal monopoly
[[Page 28424]]
2. The penalty for past illegal behavior is not a disincentive
and will actually give Microsoft an advantage in another market
segment.
3. The Department of Justice must pledge to prevent any future
anti-competitive activity by Microsoft by maintaining a close watch
of the companies activities.
Illegal monopolies hurt the consumer, inhibit innovation, and
encourage future illegal activity if they are not handled in a
manner far more aggressive than that in the Proposed Final Judgment.
I urge you to reject the PFJ.
Thank You,
Sean Ryan
(707) 438-;7326
MTC-00028735
From: Othniel Graichen
To: Microsoft ATR
Date: 1/28/02 5'10pm
Subject: Microsoft Settlement
In the western system of capitalism, consumers do not usually
buy directly from producers. In our economy, multiple levels of
middlemen exist to satisfy the demand for finished goods. This
results in healthy competition, reasonable profits and an increased
tax base. The established Microsoft monopoly on technology (like
AT&T's monopoly on communications before it) has not been used
toward the public's good and the company's business practices
illegally extend this monopoly by tying inferior products to its
established ones slowing the rate of technology advancement. This
substantially reduces the opportunities for competing technology
producers and has resulted in decreased tax revenues which can be
collected from the offending multinational corporation. Furthermore
by refusing to support the Linux platform, Microsoft management
reduces its value to shareholders. My explanation follows:
Microsoft does not just have a monopoly on PC operating systems.
In the minds of middle management in the Western world, a new
technology is not ready for deployment until a Microsoft product
includes it. The successful managers have witnessed where business
needs existed for a given technology, early adopters (using non-
Microsoft tools) were burned by incompatibilities with key Microsoft
software components or unavailability of updates to products such as
Excel, Word, DOS, Windows, Internet Explorer and Media Player to
name a few.
After slaying Goliath, Microsoft now holds hostage an even
larger customer base than IBM did before it changed it business
practices to remedy an earlier DOJ suit. Microsoft has not
cooperated with the will of the people as pursued by the USDOJ and
attorneys general of the 19 states. Unlike IBM, Microsoft cannot see
the error of its ways. Its no longer just about profits ? instead
it's about the power to be above the law. The ``software
tax'' that it collects on all PCs sold planet-wide by
leveraging US political and military influence makes Microsoft (and
by extension the US) a target of foreign nationalistic pride/
prejudice. Wars in the coming centuries will be fought over control
of Information. Microsoft's way has not produced the technologically
superior or secure operating system platform needed by the
marketplace because they have not had to innovate as they hold a
monopoly and successfully prevent competition into that space. The
computer scientists that have built Linux allow for commercial
proprietary software to run on this more reliable platform. They
only want the operating system not the applications which run on it
to be free/open and beyond subversion. They have produced a system
which is more secure and reliable than Microsoft's operating
systems. Businesses that have seen how often the Microsoft sands
shift have chosen not build on the Microsoft choices of foundation.
The free operating system Linux was given as an example to the
court as a serious threat to Microsoft's monopoly, but that argument
should be discounted as that Operating System is totally free ?
meaning no license cost per machine. So it does not compete with
Microsoft. There is no company called Linux. No one company controls
the direction Linux will take. The reason Linux? open source API can
compete with Microsoft's Monopoly OS is because the companies that
use it are guaranteed of a truly level operating system playing
field. Linux is to operating system technology what free markets are
to economic systems. Requiring Microsoft to support the Linux
platform as a tier 1 operating system for all their application
software is not taking money out of Microsoft's hand and putting it
in the hand of some other company. If Microsoft's management doesn't
respond to the viability of Linux, Microsoft's shareholders will be
hurt on the order of what happened to Enron. That is not in the
interest of middle America. What is in America's best interests is
not a powerful Microsoft, but a software platform where no company
has control over hardware or processor, but one where all businesses
(and governments) can compete based on innovation, quality and their
ability to meet customer requirements. Microsoft needs to become a
technology producer instead of controlling technology deployment.
Microsoft unfairly changes the operating system platform whenever a
competitor has found a niche which Microsoft wants to occupy. Only
when Microsoft agrees to support the Linux Operating system with
their application software will competition in the business and
office technology sector flourish to the benefit of all.
Microsoft is a grand marketing organization but they do not
stimulate our economy to build (and profit from building) new
technological advances. Business plans that would go head-to-head
with Microsoft are rejected. Instead of hiring and training more
computer scientists, software developers and programmers, our
country has changed immigration laws to allow 500 thousand more H1-B
Visas thereby increasing the unemployment of working class
Americans. Furthermore, Microsoft is not pushing the envelope of
technology. It recoups its investment on technology many fold more
than necessary before developing new products. This is not good for
consumers and has transformed
Microsoft into more of a marketing company than a purveyor of
technology. It specifically breaks the law regarding the tying of a
new product to a monopoly product by combining bug fixes (a warranty
service) into product upgrades (for a fee) and by not making them
available separately but combining fixes with new code (and a new
set of bugs). While the argument has been made regarding Microsoft's
Internet Explorer browser being part of the Microsoft Operating
System instead of application software, two facts belie that claim.
One, Internet Explorer is available for the Macintosh, Solaris and
HP-Unix--;platforms that are obviously not Microsoft operating
systems. So tying Internet Explorer to the correct operation of the
Windows Operating System was a deliberate attempt to sabotage
competition in the browser space resulting in the demise and
purchase of Netscape instead of more competition. Second,
Microsoft's claim that Internet Explorer is free--;just like
Netscape Communicator is bogus. IE is only free to Microsoft
customers. Internet Explorer is specifically not available on Linux
(proving that it is not free) and because the API (operating system
interface) which it uses is purposely obfuscated. Netscape Navigator
and Communicator are free and are available on Linux along with the
next generation Mozilla open source browser.
Artificially high operating system prices combined with fewer OS
technological advances cause fewer computers to be sold by market
forces due to customers learning to be disappointed in what their
computers can do. More competition would increase the value of the
computing infrastructure and motivate companies to invest in more
computers. This was the expectation 20 years ago. All that money
went to Microsoft. What do we have to show for all that investment?
Some improvement but a lot of broken promises. Open Source Software
delivers on that promise and the Linux operating system is the
standards based vendor neutral mechanism to remedy the difficult
situation the court finds itself needing to resolve.
I look to the court to render a decision which will increase
employment of software developers in this country, increase the
diversity of IT sector businesses, and punish the company which
brazenly ignored anti-trust law, threat, and actual suit. Do not
forget how the courts were unmistakably lied to. Now that Microsoft
has been found guilty of being a monopolist, do not take the teeth
out of enforcement by accepting the weak Proposed Final Judgement.
Microsoft has injured the Information Technology sector and with
remedies you can drive a truck through and will continue to do so
for the next 5 to 7 years. The DOJ position has changed since the
beginning of this trial with Joel Klein. Despite all the pressure to
join the US DOJ, many of the state attorneys general could not in
good conscience join the Revised Proposed Final Judgement. Do your
job to ensure that America begins the 21st century by accelerating
the deployment of technology rather than allowing business as usual
at Microsoft to continue.
Nor is breaking up Microsoft the only solution! That is a
simpleton's way to elicit the desired behavior, which won?t work
because there will be uncontrollable collusion between the two
subentities.
[[Page 28425]]
Releasing the source code for Internet Explorer would be in line
with Microsoft's claim that Internet Explorer is free. Its?
interconnection with Outlook (the Email client) is responsible for
most of the virus vulnerabilities. The inevitable improvements in
security once the source code is released would benefit the public.
Getting Microsoft to drop the suit against Lindows.com ? a potential
operating system competitor ? would also be proof that they will
permit competition. The most important goal is to convince Microsoft
that selling its Office Suite on Linux is good for Microsoft. The
RPFJ does not accomplish that. That is one reason why all the
state's attorneys general did not support it.
Microsoft writes good application software, but they have made
operating systems which are not secure from viruses. Actually Java
was designed from the start to be a more secure middleware platform,
yet Microsoft quickly pushed its own alternative technology which
has since been successfully targeted by virus writers. Why? Not to
support the public good, but to retain control of their market.
There is no money in selling operating systems, yet the
foundation of all applications is operating system support. Since
the beginning, OSes have always been given away with the computer.
The Microsoft licensing agreement must be changed to not require
that Microsoft application software be used only with or on a
Microsoft Operating System license. What Microsoft has done is that
they have sold all the computer manufacturers on the idea of paying
them to preload computers with their operating system. Thus the
price of the operating system is inseparable from the hardware.
Microsoft gets their ``tax'' whether you use their
software or not. This lack of consumer choice in operating system
middleware must end. As long as Microsoft products are only licensed
for Microsoft operating systems, consumers will be tied to that
platform and technology sector businesses will be unable to innovate
and compete with Microsoft.
Lastly, market (business) and government (military) forces are
finally responding to the fact that only open source software
systems are secure. Your judgement should promote this trend without
being legislative. Microsoft should be prevented by decree from
developing a version of their operating systems which are
incompatible with VMware or preventing their application software
from running under WINE in Linux. Such measures are simply
exclusionary. Only at this point in history will you be able to
extract such willingness to compete from an avowed monopolist. They
need to be taught that limits exist on acceptable business
practices.
Othniel Graichen
Senior Software Engineer
107 Nobhill
San Antonio, TX 78228
MTC-00028736
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5'' 12pm
Subject: Letter
437 Highland Boulevard
Brigham City, UT 84302
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am very much in favor of the right of consumers to choose the
configuration of the system they work in. I am, therefore, in favor
of the settlement reached between Microsoft and the Department of
Justice. There is no doubt in my mind that Microsoft was behaving
monopolistically, but the corporation produces good software, and I
do not believe that so much fuss should have been made about actions
that were not, in effect, harming the public.
The settlement allows for a return of fair competition in the
technology industry. Microsoft has, for example, agreed to reformat
future versions of Windows so that computer makers as well as users
will be free to reconfigure Windows using both Microsoft and non-
Microsoft software to suit their specific needs. The settlement also
requires that Microsoft's actions be monitored by a three-person
technical committee consisting of software engineers who will
resolve disputes and make sure Microsoft complies with the
settlement. I think Microsoft deserves a chance to prove its ability
to adhere to the settlement. It will cost more in the long run to
continue litigation against Microsoft. The technology industry, the
economy, and the American people have all felt the repercussions of
this case. It is time to settle. I urge you to support the agreement
and move on.
Sincerely,
Barbara Findley
MTC-00028737
From:[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 5:12pm
Subject: Copy of my letter
To Whom It May Concern:
I would like to express my opinion on the Microsoft settlement:
1- There should never have been a need. If microsoft competetors
can't handle the competition, then its time for them to get out of
the business (just as anyone else in business would).
2- Since there seems to be a need for a settlement, I think
microsoft has offered one that is more than adequate.
3- Get the government out of the way of progress.
Thanks for this opportunity.
R.E. Lee
MTC-00028738
From: Eddie Schwartz
To: Microsoft ATR
Date: 1/28/02 5:14pm
Subject: Microsoft Settlement
Eddie Schwartz
4625 Tara Drive
Nashville, TN 37215
Fax:
January 22, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
The Department of Justice and Microsoft have finally reached a
settlement to the three-year antitrust dispute, and I am writing to
champion that settlement and ask that it be approved as soon as
possible. I am in favor of any agreement that will end litigation
against Microsoft and that will help America.
Microsoft has agreed not to enter into any contractual
obligations with third-party companies that mandate that they
strictly use or promote Microsoft products. They have also agreed
not to retaliate against computer companies that make or promote
software that competes with Windows.
Believe it nor not, they will share source code and other data
that is critical to the design and implementation of Windows. This
allows the competition to make products that are compatible with
Windows. This will improve the IT industry and the economy.
I fully support this settlement, and hope it is approves with
haste. Thank you.
Sincerely,
Eddie Schwartz
MTC-00028739
From: Bernard R Buchta
To: Microsoft ATR
Date: 1/28/02 5:15pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
As a six-year teacher of PCs and the Windows operating system, I
would like to voice my strong support for settling the pending
Microsoft case. My experience as a PC instructor and my 26-year's as
a military logistics officer has taught me the great value of
standardization. Standardization buys everyone a lot. And, after
standardization is achieved, ``the payback is forever.''
Witness: When we go to war, we want our bullets to fit into our
allies'' guns and rifles, and want theirs to fit into ours. We
want to be able to share, substitute and interchange their artillery
rounds, fuel, and rations, etc., with ours. It's called being
``Interoperable.'' It's a great force-multiplier and keeps
costs down.
Standardization, by definition, creates efficiency. It also
makes for convenience and ease of use. Now, today, we need
standardization and efficiency more than ever. Therefore, the
proposed solution seems like a fair compromise that will provide the
most effective long-term results for consumers. As seen with the
International Standards Organization, the uniformity of Windows(R)
and its supporting products is an asset to all computer users. This
includes business and industry, schools, home users, . . . just
everyone!
Technology is complicated enough for the average person, so the
advantages Microsoft provides with the scope of their software
presence is immeasurable in the form of America's almost seamless
transition into the information age with young and old alike. Though
I did not respect the government's case, the restrictions imposed
with this deal
[[Page 28426]]
are far more favorable than the possibility of a corporate break up
and chaos within the computer world. Based on the new, more even-
handed approach of Microsoft toward competitors, and those who do
business with competitors, plus the implementation of an objective
technical committee of experts to ensure compliance, it seem to me
it would be in the best interest of all parties involved to proceed
with this agreement. This will save the consumer a great deal of
heartache. It will also permit continued interoperability in future
systems and software programs.
Thank you very much for your consideration.
Sincerely,
Bernard R. Buchta
Bernard R Buchta, in Troy, MI
LTC, OrdC, US Army (Retired)
P.S.
You're doing a great job in the War on Terror.
Don't let them grind you down!
MTC-00028740
From: Daniel Sells
To: Microsoft ATR
Date: 1/28/02 5:15pm
Subject: No winners, just more wasted money.
How many new schools could we build with the money that is being
wasted on this case? Better yet, how many people could be feed?
What's more important, People or what kind OS/browser they use to
access the internet?
Stop Wasting MY Tax Money!!!!!
This lawsuit is a huge waste of tax payer money. The federal
government should use MY tax money to provide valued services to me
and all Americans. WHAT DOES ANYONE STAND TO GAIN BY SUEING
MICROSOFT? Know one is forced to buy the Windows operating system,
browser or any other Microsoft product. Apple Macintosh has been
around for years and is a very viable alternative to the Windows
platform for all who chose such. Linux is growing in popularity as
another choice. I don't understand why your DOJ is pursuing this. If
other companies want to sue Microsoft, they have the courts to do
so. Let AOL, IBM or whoever sue them WITHOUT USING MY TAX DOLLARS!
The DOJ should step down and let the other companies battle this out
as long as their willing to pay.
D.M. Sells
MTC-00028741
From: Lynn Walker
To: Microsoft ATR
Date: 1/28/02 5'09pm
Subject: MICROSOFT SETTLEMENT
967 Artman-Gibson Road Colville, WA 99114
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Thank you for your efforts to settle the Microsoft antitrust
case. Concluding this litigation will be beneficial for the tech
industry, as well as the economy.
The settlement agreement adequately addresses concerns about any
predatory business practices on Microsoft's part. Upon approval of
the agreement, Microsoft will refrain from taking retaliatory action
against those who sell, promote, or develop software that competes
with Windows. Another step Microsoft is taking is making it easier
for consumers to remove features of Windows so they may replace
these features with Microsoft's competitor's software programs. In
my view, Microsoft has made adequate concessions to resolve this
case. No further action should be taken by the Department of Justice
against Microsoft.
Thank you for your consideration of my comments on this issue.
Sincerely,
Lynn Walker
MTC-00028742
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:15pm
Subject: Microsoft Settlement
203 Hazelton Court
Mullica Hill, NJ 08062-;9350
January 14, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
The Microsoft antitrust case settlement agreement should be
approved as soon as possible. We will all be better off. This
lawsuit demonstrates that Microsoft's competitors, like Sun, are
merely envious of Microsoft's success. Their failure to develop
products of the same caliber, as Windows does not mean Microsoft
engaged in anticompetitive behavior.
The terms of the settlement agreement are fair. There should be
no hesitation in the settlement's approval. The agreement provides
for such things as a technical oversight committee, which will
monitor Microsoft's business, practices. Additionally, Microsoft has
agreed to disclose to its competitors proprietary information, like
interfaces that are internal to the Windows operating system. Given
these types of concessions, no further action should be taken
against Microsoft.
Thank you for your intelligent attention.
Sincere regards,
Linda Maher
MTC-00028743
From: Tom Daly
To: Microsoft ATR
Date: 1/28/02 5:15pm
Subject: Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
United States Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
I have been following the Microsoft case for many months and I
believe that the proposed resolution of the case is clearly not in
the interest of the American consumer and not good for the economy.
Microsoft will still be a monopoly for all intents and purposes
and will continue to use their power to limit competition. The new
regulations have far too many loop holes and with Microsoft's record
there is no reason to believe they will change the way they do
business. Microsoft must be held accountable and forced to allow
applications that run on their system to be used anywhere. And they
must be required to make their products compatible with competitive
products.
To make this process fair to all, we need to hear from public
consumer groups and from state governments not just Microsoft and
their competitors. This is a right given by the Tunney act and must
be preserved. It is my sincere hope that you will consider these
points before going forward. The American people deserve and have a
right to choose the products that serve them best, the proposed
settlement is unfair and unjust. Please allow the people a voice.
Thank you,
Thomas B. Daly, Ph.D.
303-;530-;3337
PO Box 17341
Boulder, CO 80301
MTC-00028744
From: Vicinanza, Gregg
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 5:16pm
Subject: Microsoft Settlement
Please accept this comment regarding the Microsoft settlement on
behalf of Sony.
Gregg H. Vicinanza
O'Melveny & Myers LLP
555 13th Street, NW
Washington, DC 20004
voice (202)383-;5235
fax (202)383-;5414
e-mail [email protected]
internet www.omm.com
MTC-00028745
From: William Wallace
To: Microsoft ATR
Date: 1/28/02 5:16pm
Subject: Microsoft settlement
Shame! Microsoft is being rewarded, not penalized for illegal
monopoly practices and restraint of trade. Is this administration
merely pro-business, or really for a FREE market system?
William Wallace
MTC-00028746
From: Michael T Vilas
To: Microsoft ATR
Date: 1/28/02 5:16pm
Subject: Microsoft Settlement
Dear Sir:
It is time to end the costly litigation against Microsoft. I
urge you to stop all that is continuing the delays is the
settlement.
Thank You:
M Vilas
MTC-00028747
From: Thomas Treder
To: Microsoft ATR
Date: 1/28/02 5:16pm
Subject: I oppose the Department of Justice's proposed
I oppose the Department of Justice's proposed settlement with
Microsoft. None of the proposed actions appear adequate to prevent
Microsoft from entering any new market it chooses, then utilizing a
[[Page 28427]]
combination of exclusionary licensing, predatory pricing, and all
but unlimited marketing capital to force the incumbents into
extinction.
Microsoft continues to employ the tactics with which it
decimated Netscape. Against RealPlayer, Microsoft has integrated
Windows Media Player. To drive a wedge into the game console market,
XBox is sold below cost.
While the short-term benefit to the consumer is reduced cost of
the individual commodity, the overall cost to the consumer and to
society is huge; Operating System (Windows) and Applications
(Office) priced far higher than any hopeful rival of equal or
greater quality (Linux/StarOffice); reluctance of new players to
enter the market; laughable security (ILoveYou, Nimda, Code Red),
and ultimately a hegemony imposed with Microsoft the gatekeeper of
all society's information flow and transactions (pending success of
``.Net'').
Even Judge Jackson's rememdies seemed no guarantee that
Microsoft couldn't find a circumvention; however, that the current
Department of Justice has volunteered a remedy weaker than one to
which Microsoft had already acquiesed is at best difficult to
understand, and at worst smells of malfeasance. Judge Jackson's
remedies should be imposed upon Microsoft without delay.
MTC-00028748
From: Larry Blunk
To: Microsoft ATR
Date: 1/28/02 5:16pm
Subject: Microsoft Settlement
I wish to stress my opposition to current United States vs.
Microsoft proposed Settlement Agreement. The numerous loopholes and
lack of consequences for violation of the agreement will result in
little or no change in Microsoft's anti-competitive behaviour.
Perhaps most unsettling is the area of DRM and authentication
systems, and audio/video codecs. Microsoft is attempting and
dominate these fields through it's .Net and Windows Media services
initiatives. There is no mention at all of compulsory licensing of
audio/video codecs in the settlement. If Microsoft is able to
monopolize these standards, they will extend their control beyond
just PC hardware OEM's to all manner of audio/video playback
devices. These include pocket audio players, personal video
recorders, component audio receivers, DVD players, and handheld
organizer (such as the Palm Organizer). All these device makers and
will need to license the audio/video codecs on Microsoft's terms.
These terms will likely forbid the use of competitive operating
systems such as Palm OS and Linux on these devices. It will also
require the use of Windows backend server operating systems rather
than competing operating systems such as Unix.
Closely related to the audio/video codecs are Microsoft DRM
systems which are used to wrap and ``secure'' the codecs.
DRM services are specifically excluded from compulsory licensing.
The rationale is that licsensing them would somehow undermine their
effectiveness. However, there is no reason these systems could not
be licensed under a standard non-disclosure agreement (NDA). The
same type of agreement could be used for authentication systems. I
also note that there is a major flaw in the Department's
understanding of authentication and cryptographic systems. A basic
tenet in cryptography is that in order to be trusted, a
cryptographic system should be subjected to extensive public peer
review. Rather than relying on secrecy for security, authentication
systems rely on the strength of their cryptographic algorithms. Even
though the algorithms are widely published, they remain secure
because of the mathematical complexities in defeating them. It
should be noted that the standard for securing transactions on the
Web today (such as credit card purchases) is the openly specified
SSL standard. SSL employs only publicly documented and reviewed
cryptographic mechanisms. There is even an open source
implementation known as OpenSSL which is used extensively to secure
transactions on the Internet. This is a difficult concept for the
layman to understand, but it is critical to an open and competetive
environment on the Internet.
-Larry J. Blunk
Saline, Michigan USA
MTC-00028749
From: Sawley
To: Microsoft ATR
Date: 1/28/02 5:25pm
Subject: AOL Suit
The AOL lawsuit against Microsoft is a pathetic attempt to try
to gain public sympathy in court against a competitor that they
can't compete against in the public market......
Lewis W. Sawley
MTC-00028750
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:18pm
Subject: Microsoft settlement
It is my opinion as a citizen of the United States that the
creation of a product using the gifts of intelligence and foresight
should not be punished. We have encouraged within our nation the
free enterprise system. Microsoft, through superior development and
insight into consumer needs, has produced a superior product. This
in no way deserves punishment, due to the jealousy of competitors. I
believe that this company deserves the freedom to continue producing
products that benefit the consumers who purchase them.
Thank you for considering my opinion.
Sincerely,
Debra L. Banks
2035 Oneida Valley Rd.
Karns City, PA 16041
MTC-00028751
From: Stephanie Jayne Sailor
To: Microsoft ATR
Date: 1/28/02 5:20pm
Subject: Public comment--;Microsoft
Department of Justice:
The lawsuit against Microsoft is supposed to be for the good of
the people. Instead, it's for the good of Netscape, who failed to
compete. Microsoft didn't hurt consumers. They helped consumers. If
you truly want to put an end to a monopoly, why don't you start with
The U.S. Postal Service? That's a Government-created monopoly, which
has thrived since the 1840s. It has been against the law for anyone
to compete with the U.S. Postal Service by carrying first-class
mail. That's a monopoly that you should stop.
I beg of you, Department of Justice, end the Microsoft case now.
Do not stifle innovation. Do not require Government permission for
companies to improve their products. Such intervention only benefits
companies who are lethargic to compete. In the end, that hurts
taxpayers, consumers, the economy, and future of technology.
Do not meddle with Microsoft--;or any other
company's--;future product design decisions. Leave that to
software executives, not judges and bureaucrats. Keep America free,
allowing Microsoft to continue to develop affordable products,
create jobs, and please customers. This isn't about Microsoft. It's
about the freedom of every American company to improve their
products. Most importantly, it's about allowing consumers the
freedom to pass judgment with their pocketbooks, by personal choice.
=Stephanie Sailor=
118 Mendham Rd.
Bernardsville, NJ 07924
908.766.0990
[email protected]
http://www.StephanieSailor.com
CC:[email protected]@inetgw
MTC-00028753
From: Spencer Black
To: Microsoft ATR
Date: 1/28/02 5'19pm
Subject: Microsoft Settlement
Spencer Black
Artist
Microsoft Games Studios
801-;275-;6393
[email protected]
January 21, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
Three years ago, Microsoft was found to be in violation of
established antitrust laws and was brought to trial in the federal
courts. The Department of Justice and Microsoft, after six months of
negotiations last year, managed in November to reach an agreement
with which both parties are satisfied. Now, we find out that it will
be determined whether it is in the best public interest to settle.
The alternative is to reopen the case, and spend an indeterminate
amount of time trying to reach a better settlement. Meanwhile,
Microsoft's competitors and those who wish to gain from further
litigation, including nine plaintiff states, are attempting to
undermine the settlement during its review period. I do not believe
that continued litigation would serve the public at all. The economy
and the technology industry have suffered while this case has
dragged on, and no good can come of extended suit. The settlement is
fair, and, if finalized it will allow things to finally return to
normal.
[[Page 28428]]
Microsoft has agreed to a variety of restrictions and
obligations under the settlement, all of which would restore a fair
competitive atmosphere within the technology market. For example,
Microsoft has agreed not to take retaliatory action against any
software producer or computer maker that introduces software into
the market that competes with Microsoft.
I do not believe that it is in the best public interest to
continue litigation. I urge you to support the settlement as it now
stands.
Sincerely,
Spencer Black
MTC-00028754
From: Little Hen
To: Microsoft ATR
Date: 1/28/02 5:22pm
Subject: Microsoft Settlement
Becky Garrett
11050 North Highway 59
Gravette, AR 72736
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft: My name is Becky Garrett. I am a resident of
Gravette, Arkansas writing in support of the settlement recently
reached between the federal government and Microsoft. The public
interest will not be served by reopening litigation against
Microsoft. Given all of the changes in direction the case has taken
to date, the outcome of additional litigation is far from certain.
You have a settlement agreement on the table at this time that not
only provides certainty in the outcome of the case, but also
provides increased opportunities for competition in the industry.
Microsoft has agreed to either modify or eliminate allegedly
anticompetitive business practices in the areas of pricing,
distribution contracts, relations with software developers, and
systems configuration. If the agreement is implemented, these
concessions will lead to great growth in the software and computer
industries. I hope you decide to go forward with the settlement. It
is in the best interests of all involved.
Yours truly,
Becky Garrett
cc: Representative Bob Stump
MTC-00028755
From: Bhanu Patel
To: Microsoft ATR
Date: 1/28/02 5:22pm
Subject: microsoft settlement
5201 Meadowview Avenue
North Bergen, NJ 07047
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my interest on the recent antitrust
settlement between Microsoft and the US department of Justice. The
lawsuit has gone on long enough and should be finalized. All that is
happening now is taxpayer dollars are being wasted and other
companies are being given the chance to tack on their own lawsuits.
Microsoft has done wonderful things for our country including
creating jobs, wealth, and making technological breakthroughs.
They shouldn't be forced to disclose interfaces that are
internal to Windows operating system products. They have spent huge
amounts of money and resources developing these secrets. They should
also not be prohibited from entering into agreements that obligate
third parties to exclusively distribute Microsoft products. This
inhibits their ability to gain market share.
Nevertheless, the settlement should be implemented so that our
IT sector can rebound. Our nation needs to pull out of recession and
cannot afford to have the government interfering with the most
successful businesses. Make the right choice and do what is best for
the public. End the dispute.
Sincerely,
MTC-00028756
From: Derik Stenerson
To: Microsoft ATR
Date: 1/28/02 5:23pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I would like to voice my position of support for concluding the
litigation against Microsoft by approving the proposed settlement
with the Justice Department. This case has proved not to be the best
use of the government's resources, as the break-up attempt has only
led to protracted dispute with no resolution. Consequently, it seems
that accepting this current plan would be the best course of action
for both sides at this point. The terms will be very favorable to
Microsoft's opponents without causing severe disruption to its
business model. Computer makers will have more flexibility to choose
software programs for the Windows operating system, and even to
manage specific features, like the supposedly controversial bundling
options. Software developers will have unprecedented access to
Windows internal interfaces and server protocols, as well as the
ability to license its intellectual property. A non-partisan group
of software experts will then monitor the process to ensure ongoing
compliance. Based on these actions and measures, it seems that
Microsoft is reaching out to the software community in a significant
way to allow more competition in the marketplace. It should be in
the best interest of all parties to take this opportunity and run
with it, rather than delay further the possibility of a mutual
solution. I look forward to your finalization of this agreement at
your earliest convenience.
Thank you very much.
Sincerely,
Derik Stenerson
7845 235th PL NE
Redmond, WA 98053Get more from the Web. FREE MSN Explorer
download :
http://explorer.msn.com
MTC-00028758
From: john w orlandella
To: Microsoft ATR
Date: 1/28/02 5:24pm
Subject: Microsoft settlement
I see no reason for the government to continue the case against
Microsoft. The only ones who can possibly gain are the attorneys.
Please go with the current settlement and lets get this economy
going again.
John and Jacqueline Orlandella
Redington Shores, Fl 33708 registered independents
MTC-00028759
From: Dean Royalty
To: Microsoft ATR
Date: 1/28/02 5:25pm
Subject: settlement
To whom it my concern:
It is my opinion that the proposed Microsoft settlement should
be finalized as written. We, the public, need this enacted to help
our economy to move forward, and help all who access the internet.
As a senior,
I say it is now time to settle this matter in this fair and
equitable way.
Respectfully, Dean Royalty
CC:Winnie R. Hanna,Shirley M. Trigg,sandra murphy,PAT...
MTC-00028760
From: Linda Jo Hamlin
To: Microsoft ATR
Date: 1/28/02 5:25pm
Subject: Microsoft Settlement
Dear Antitrust Division,
I cannot even guess at what is fair or correct according to the
law's eyes to levy upon Microsoft, but I do want to comment
regarding this issue. I have always used an apple computer (for many
reasons) but I have to use some Microsoft software (Word) to process
documents into booklets and layouts. This software often causes
crashes as it tries to install over my operating system. The entire
screen will freeze and go into a loop. When I reboot my computer, it
alerts me that something has tried to rewrite my software. That is
just a wrong thing to have happen. It is installed, I bought it,
paid Microsoft for it and that should be enough for Microsoft. The
rest is nefarious intervention by software written with a company's
agenda. Please reprimand this company fittingly. Today the world of
competition and deregulation is being swallowed up by profiteering.
How can the little guy protect himself from huge, powerful and rich
entities if there is no substantial result from proven misdeeds? It
must have consequence when actions are done that are not for the
good of the economic system we have here in the United States and
the consequences should be a deterrent in the future to dissuade
others from the same type of actions.
Thank you for your time reading this. I appreciate it.
Sincerely,
Linda Jo Hamlin, one of the little guys.
MTC-00028761
From: Harlan Wilkerson
To: Microsoft ATR
Date: 1/28/02 5:25pm
Subject: Proposed Settlement
[[Page 28429]]
I feel that adoption of the proposed settlement is not in the
public interest.
The Appeals Court ordered the District Court to craft a remedy
that would ``unfetter [the] market from anticompetitive
conduct,'' to ``terminate the illegal monopoly, deny to
the defendant the fruits of its statutory violation, and ensure that
there remain no practices likely to result in monopolization in the
future.''
Windows has gained it's market position not by consumer demand,
but by Microsoft's almost total control of production. In the past,
Microsoft has used exclusive OEM licensing and --;marketing
incentives to pass along the so-called ``Microsoft tax''
to every PC consumer. Most of the top 20 OEMs simply don't offer PC
systems without the Windows operating system pre-installed.
Microsoft has urged (and rewarded) the 0EMs to ``just say
no'' to buyers who request a so called ``naked PC''
(a PC with no pre-installed software). This is ironic since the
OEM's associated support costs should actually be reduced. The OEMs
that do offer alternatives to Microsoft's Windows charge essentially
the same price for non-Windows models. This is true even for those
with pre-installied versions of absolutely free operating systems
e.g. Linux, or the BSDs. These operating systems can be freely
downloaded and installed on all of a consumers PCs without any
licensing fee whatsoever. Consumers who have opted to install these
free operating systems (on their own) are usually frustrated in any
attempt to obtain refunds from the OEMs for their unused Windows
licenses. This despite provisions for a refund from the OEM that are
contained in the Microsoft Windows EULA. It's no accident that
consumers can't determine the fair price of a PC under these
circumstances. This was highlighted during the trial by a grass
roots movement that culminated in a ``Windows Refund
Day''. Consumers who purchase Microsoft Windows through an OEM
usually have no standing in class action suits brought against
Microsoft.
Nothing in the proposed settlement prohibits Microsoft from
continuing to offer OEMs existing forms of advertising or marketing
incentives (on an equitable basis) to include Windows on every
machine, or to decline to sell ``naked PCs''. We currently
are in the worst economic recession in at least a decade. It's
doubtful that some of todays OEMs will even survive. Nonetheless,
many of these same ``equipment manufacturers'' won't sell
their equipment at any price without pre-installed software from
Microsoft. This is hardly the behavior of an unfettered market.
Microsoft should be required to post the costs of it's OEM
products on a public web site, and they should be precluded from
offerring any incentives to OEMs to curtail the sales of
``naked PCs''
To paraphrase the Appeals Court by the time this case is
resolved the facts will be ancient history, but the effects of the
illegal acts will have caused harm nonetheless. The proposed remedy
does nothing to ``deny to the defendant the fruits of its
statutory violation''. Microsoft staunchly denies any wrong
doing in it's public statements, retains billions in capital, and
isn't even held liable for the people's costs in prosecuting the
case.
In crafting a remedy that terminates the illegal monopoly or
eliminates practices likely to result in monopolization in the
future it is important that hearings be held to investigate how we
got here in the first place. The Federal Trade Commision and DOJ
took up Microsoft's trade practices involving OEM per-machine-
licensing of MSDOS. During this case a private antitrust suit was
brought against Microsoft by Caldera. That suit was settled but
provided no relief for the millions of consumers who purchased
Digital Research's Disk Operating System. Digital publicly
complained that they had sufferred from Microsoft's anticompetitive
per-machine-licensing scheme and were wrongly excluded from the
Windows 3.1 beta testing program--;even though they were
participants in beta testing earlier versions of Windows. Digital's
Operating system didn't compete with Windows, but did compete with
MSDOS. At the time these were seperate Microsoft retail products.
The respected magazine and online publication Dr Dobbs Journal
revealed that the Windows 3.1 beta contained code that was only
useful for detecting Digital Research DOS. This code gave the user
error messages or simply halted a users machine whenever Digital
Research DOS was detected. Windows version 4 and MSDOS version 7
were eventually bundled into Windows 95 which carried exclusive OEM
license agreements that didn't permit OEMs to use or dual boot other
operating systems like Digital's DOS. For example, some Hitachi PCs
had a hidden copy of the BeOS that consumers could only discover and
activate using instructions on Hitachi's web site. Digital, Hitachi
and BeOS have since exited the PC OEM and PC Operating system
business. For it's part the DOJ has complained publicly that
Microsoft violated the first consent agreement. The practice of
monopolies denying companies that compete in any software catagory
timely access to APIs, and the practice of bundling seperate retail
products for anticompetitive reasons, and/or using exclusive
licensing agreements to harm competitors is a common and recurring
theme. The judge was correct in denying Microsoft's request to limit
the scope of the remedies without an evidentiary hearing, and the
DOJ was premature in dropping their case in-main on product
bundling. Microsoft is engaged in world-wide trade and the DOJ and
European antitrust regulators seem uncoordinated and out of step.
The European regulators have taken up complaints that Microsoft has
withheld access to Windows server software API's that are necessary
for interoperability with other network operating systems, and the
bundling of Windows Media Player in Windows XP. Microsoft is not so
quietly announcing it's plans for a single Internet logon
authentication service it's calling ``.NET''.
The stated objective of this initiative is to leverage the
Windows monoply in order to create a new (Internet) monopoly. While
these practices may or may not be lawful, it's doubtful that all of
the practices likely to result in monopolization in the future have
been eliminated without a single hearing on the issues here in our
courts. Most non-Microsoft operating systems provide a boot manager
that allows consumers to use several operating systems. In fact,
Microsoft includes a boot manager that allows consumers to use
multiple (older) versions of Windows e.g. Windows 2000 and Windows
98. The act of installing a Microsoft operating system doesn't
invalidate a consumers licences for a competitors products. Yet
installing (or reinstalling) Microsoft Windows will always result in
a consumers other operating systems becoming inaccessable. This is
anticompetitive behavior. Microsoft should be required to
automatically add other operating systems to it's boot manager in
the same manner that it adds it's own products.
The DOJ and Microsoft appear to have forgotten that this case is
about--;Personal Computers--; if a consumer shops for a PC,
and makes a purchase based on the software selection, it makes no
sense to provide Microsoft the arbitrary right within fourteen days
to delete icons or programs and substitute their own because they
have judged the competitors product lacking in some quality or state
they deem essential.
Microsoft has stated that their power to innovate or bundle
applications into Windows XP is essential to the economic recovery
of the PC industry. The PC OEMs have testified that there is no
viable alternative to Windows. In the past year alone private
business LANs and Internet companies have suffered billions of
dollars in damages caused by trojan or virus programs that
specifically targeted Windows PCs. The Executive and Legislative
branches of the Federal Government have recognized the Internet as a
vital piece of our national and international infrastructure. They
have established agencies tasked with it's protection. Indeed one
reason for pursuing the proposed settlement after September 11 was
``the national interest''. It's hard to understand why
much of Microsoft's ill gotten monopoly shouldn't be considered an
essential public facility. Certainly consumers have a right to
migrate their own IP out of proprietary Microsoft file formats.
Microsoft should be required to publish the file format information
needed for other applications to interoperate with files created by
MS Office. This is certainly the case with regard to Apple Computer
users who have already been threatened with the cancellation of the
Apple version of MS Office.
In conclusion, the court combined the individual State and DOJ
cases. A settlement that doesn't include half the plantiffs is at
best not a settlement.
Sincerely,
Harlan L. Wilkerson
Hutchinson, KS. 67501
MTC-00028762
From: Kevin McCoy
To: Microsoft ATR
Date: 1/28/02 5:25pm
Subject: Microsoft Settlement
I strongly disagree with the proposed settlement. It does not go
nearly far enough to restore competition and deny Microsoft the
fruits of their illegally obtained market advantage. In particular
the Office suite monopoly is devastating to competitors and
consumers through lack of choice. I think the
[[Page 28430]]
nine states that are still pursuing litigation are much closer to
purposing a remedy that is in agreement with the appeals courts
findings.
Sincerely,
Kevin D. McCoy
Orem, Utah
MTC-00028763
From: W. Curtiss Priest
To: Microsoft ATR
Date: 1/28/02 5:26pm
Subject: Proposed Microsoft settlement: woefully insufficient
Dear Justice Department,
As a software innovator and holder of several software patents,
I have first hand knowledge of how extremely brutal, unfair and
bullying Microsoft is to others in the industry. I was involved for
five years in negotiation, arbitration and potential legal action
against Microsoft which only caused Microsoft to spend incredible
resources to deny me and Humanic Systems any just and due
compensation for our innovative work.
In my opinion, as President of Humanic Systems, a company that
was (above) abused by Microsoft regarding our intellectual property
for significant components of Microsoft Outlook, the proposed remedy
is extremely inadequate:
1. It does not provide substantial redress for the prior losses
caused by MS on others
2. Secrecy provisions undermind the ability to obtain API
information and will systematically be used by MS, in my opinion, to
continue its monopoly stranglehold
3. There are no structural remedies, and, without those, the
``fascist'' mindset of Ballmer and Gates will continue to
dominate the thinking of each and every employee
4. Microsoft's stated opinions about various forms of open
software, being a ``cancer'' undermines the ability for
consumers to get the maximum benefit for the least cost
This position, alone, demonstrates that they want ``all the
marbles'' and it is a ``winner take all'' game
Consider, for example, a PBS documentary about extreme
competition as taught within the Gates family as Mr. Gates grew up
This person does not know the word cooperation, and, without
extremely directive measures, will never show cooperation to the
rest of the software industry that is slowly dying under his
ruthless hand.
Very truly yours,
Dr. W. Curtiss Priest
President, Humanic Systems
Director, Center for Information, Technology & Society
Member, American Economics Association
Prior, Principal Research Associate, MIT
Author,--;Technological Innovation for a Dynamic
Economy--;, 1980 (Pergamon Press)
--;Risks, Concerns and Social Legislation--;, 1988
(Westview Press)
W. Curtiss Priest, Director, CITS
Center for Information, Technology & Society
466 Pleasant St., Melrose, MA 02176
Voice: 781-;662-;4044
[email protected]
Fax: 781-;662-;6882 WWW: http://Cybertrails.org
MTC-00028764
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:25pm
Subject: Microsoft Settlement
To: Department of Justice
Re: Microsoft Settlement
Incredibly, the foremost innovative and economy enhancing
company of the past fifty years has faced and continues to face an
onslaught of legal challenges because of its superior and highly
successful business model. This is happening through the combined
conspiratorial actions of past federal and present state governments
allied with certain business companies, i.e., Sun Microsytems,
Oracle, AOL, et al. What these companies could not achieve in the
ultimate test--;the marketplace--;they seek to gain via the
use of Machiavellian chicanery and political cronyism; particularly
a number of State Attorneys General and the foul, disgraced Clinton
Justice Department.
There is no harm here to the American or Foreign consumer. To
the contrary, Microsoft has made sense of the Internet and has
provided commonality and standardization and thus ease of use to the
consumer, not obscurantism and confusion such as that which existed
prior to the advent of Microsoft's operating systems.
If there is any illegality being practiced relative to the
issues at hand concerning Microsoft, it is the conspiracy of
Government operating hand in hand with some of the slimiest,
slipperiest billionaire business operatives, and their surrogates,
in existence in the world today.
The Government must reward business excellence and
innovativeness; Government must recognize and commend those
enterprises that enhance economic activity; the Government and the
Courts must not penalize achievement and success to satisfy the
politically connected obstructionist losers.
MTC-00028765
From: Sam Axton
To: Microsoft ATR
Date: 1/28/02 5:24pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division, U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
or to whom it may concern,
I am opposed, in principle, to any penalty meted to Microsoft
for anti-trust reasons. I use Microsoft products voluntarily which
is the only way one can use their products. Any claim to the
contrary is simply wrong.
The free market will punish anyone who mistreats their
customers. Microsoft has been nothing short of wonderful to the
success of my business and personal life. They deserve their success
and must be left unhindered to continue their efforts for my best
interests. I do not want you to presume to tell me what software
configuration I want in my computer nor what any company can bundle
to meet my needs. I will decide whether Microsoft or any other
company is a success for me or not.
The idea that another company cannot compete with Microsoft is
every indication that it does not have what I nor others want. I and
every person and/or company must be free to create and sell their
property to any other willing person and it is your job to protect
that most fundamental right not to undermine and punish it.
Sincerely,
Sam Axton
Reward is commensurate with effort.
MTC-00028766
From: David Rahrer
To: Microsoft ATR
Date: 1/28/02 6:25pm
Subject: Microsoft Settlement
To Whom It May Concern:
It would be difficult in the time I have available to describe
the transparent and political nature this case has taken. I will,
however, do my best to summarize some of my thoughts for the record,
as I believe I represent the majority of working America who simply
don't have the time to make their opinions formally known. It is
these people who some parties continue to claim have been so
desparately harmed by Microsoft. I don't think this is so.
It is clear that MS was extremely aggressive and, in some
instances, outside the law in its persuit of the browser market. In
the media at the time were boastings by Netscape that they would
destroy windows, creating their own desktop environment. They were
quite serious and I think MS realized that. I would also like you to
recognize that NS browsers were freely downloadable at the time and
find it hard to believe that sales to average consumers were a
significant source of revenue. It was the corporate sales that drove
their engine so please keep in perspective that the majority of
consumers were not paying for the endless revisions of the NS
Browser, they simply downloaded and installed it.
When MS came out with IE, it was not very good and most people
continued using NS, even though IE came with Windows 95. What
difference does it make which ``comes with'' the OS. Do
the complaintants believe the public is so stupid that they just
take what is put before them? It was because IE became so much
better than NS that NS failed. They had geared themselves towoard
owning the market--;their own ``monopoly''--;and
then beyond to the desktop. It didn't happen, in large part because
MS created a much better browser and, forseeing that the Internet
would be an extension of the desktop environment, included it as
standard equipment with Windows. To this day one can install any
browser one chooses--;even pay for Opera. Or, one has the choice
of using what comes with the Windows OS. Those 12% of users who
purchase Apple systems, also have a built-in browser but can install
any they like. For those of us that have been using computers for a
long time, it is quite obvious that MS has done the
unimaginable--;converted a world of fragmented systems and
hardware to the interchangable, useful, indespensible marvels of
today. It had to happen that someone would do this, and I think it
is the picture of an American success story that they did. We should
not be continually beating on a company that is in reality the crown
jewel of
[[Page 28431]]
American enterprise. What better example can you offer? And all this
because it's fashionable to hate the big guy, and also that some
people would rather blame their own business model failures on MS
instead of finding ways to innovate.
To be perfectly blunt, as a middleclass, average American, I
have been quite disgusted during most of this process. MS doesn't
produce tobacco , they aren't the enemy. They deserve to be fined
and put on notice about the laws they did in fact violate--;not
to have a state by state feeding frenzy on the most viable
corporation in our country--;all fueled by none other
than. . . Competitors. It's not moral, should not be legal
and the rest of the world is laughing the hidious way we have
allowed it to happen.
It is unfortunate, but I believe much of the correspondance you
receive will be from those with an axe to grind or who followed the
directions on a form letter with hopes of collecting an offered
prize. You probably won't hear from the majority, those who are
simply working and enjoying the bright, boundless world open to them
through the Internet and their computer. Not only would they not be
enjoying this as easily or as cheaply if MS had not been sucessful,
but they might not be enjoying it at all. These are the people who
are collectively thrown around in discussions by politicians and
sour CEO's hoping to score points or money by attacking MS while
it's fashionable.
I emplore you to settle this trial as swiftly and as close to
the current framework as possible. It has run on far too long as it
is and we have far, far, more important things to work on. Thank you
for your time.
David Rahrer
MTC-00028767
From: bobalexander
To: Microsoft ATR
Date: 1/28/02 5:26pm
Subject: microsoft settlement
please approve settlement as is. it is both fair and reasonable.
MTC-00028768
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:26pm
Subject: Microsoft action
To: DOJ
From: Lee Welter
Subject: Microsoft action
Date: 28 January 2002
Greetings:
Please give the DOJ settlement with Microsoft a chance to work
in its current form.
I believe in free-market competition on a level playing field:
however, weakening a strong competitor is not a substitute.
Cordially,
Lee
MTC-00028769
From: Alex Lazutin
To: Microsoft ATR
Date: 1/28/02 5:14pm
Subject: USAGLazutin--;Paula--;1011--;0122 (1).doc
25814 S Greencastle Drive
Sun Lakes, AZ 85248-;6816
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing in full support of the recent settlement between
Microsoft and the US Department of Justice.
Although the lawsuit was lengthy and costly for taxpayers, I am
happy that Microsoft will not be broken up. The terms of the
settlement seem fair.
Under the terms of the settlement Microsoft has agreed to
improve its relations with computer makers and software developers.
It has also agreed to design future Windows versions so that
competitors can more easily promote their own products. These
concessions and more make up the basis for a settlement that is
aimed at protecting consumer rights.
While it is not perfect, it is the best thing that could happen.
Our nation needs Microsoft back in action and innovating like they
have been for over 10 years. Hopefully, your office can overcome any
opposition there may be in the federal government to the settlement,
and bring a swift end to this already tiresome case. Thank you.
Sincerely,
Paula Lazutin
President of Alco Marketing and Sales
Microsoft shareholder
MTC-00028770
From: Andrew Neely
To: Microsoft ATR
Date: 1/28/02 5:22pm
Subject: Microsoft Settlement
As a longtime computer user, and recent professional who uses
both Windows and Macintosh both at work and at home, I feel that
without a doubt, Microsoft is a predatory monopoly. I have used many
different software products, and it has only been in the last three
years or so, during the intense pressure that the DOJ initially
brought to bear with it's antitrust lawsuit that I've even seen
anything in the way of alternate OS offerings making their way onto
store shelves and into OEM computers.
Microsoft has not only dominated the OS market to the detriment
of its competition, but to that of its end users as well. That
blackhat hackers have been able to repeatedly exploit the same set
of vulnerabilities in the close relationship between recent versions
of Windows and their mail clients, Outlook and Outlook Express, is
inexplicable. Simply changing either piece of software, or both,
would close a major security opening in it's products. However, not
only has Microsoft failed to address this in a meaningful way, it
has managed to avoid all liability to what for all intents and may
be thought of as a design flaw. Had a car company's mistakes cost
the same amount of lost man hours and money as Microsoft's
oversights have, year after year, I doubt that they would even
continue to operate as a company, much less as the most powerful one
in its industry.
As a United States citizen I ask that my opinion be firmly
registered that Microsoft can only be brought to heel as a good
corporate citizen by direct oversight and measures designed to
cripple the leverage that its Windows brand of operating systems
software gives it over competitors. Simply allowing this company to
give away so many billion dollars worth of retail software is
ineffective. This will not only not cost the company anything like
the sticker price of the donations, but in fact allow it to more
firmly entrench itself into area it already has inroads into.
Monetary damages should be settled in CASH, and the company should
be subjected to direct oversight of its activities for at least five
years. This seems to be the outside amount of time for it to develop
a generation of products all the way across the board, and tying its
hands for this length of time will help other companies to get a
foothold they badly need to compete.
Sincerely,
Andrew Neely
MTC-00028771
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:27pm
Subject: (no subject)
Renata B. Hesse
Antitrust Division
U.S.Department of Justice
Washington DC 20530-;000i
I'm writing to you in the hope that you will move forward in
settling the complaints against Microsoft as the agreement that your
office has recommended.
As a faithful taxpayer and retirees, my wife and I rely on the
economy being strong. Microsoft is a present and future major player
to that end.
Thankyou.
Sincerely,
Ron and MaryLou Pettengill
84 Westover Drive
Webster, NY 14580
CC:[email protected]@
inetgw
MTC-00028772
From: Gil Friend
To: Microsoft ATR
Date: 1/28/02 5:27pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
United States Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
I am writing to comment on the proposed Microsoft/DOJ anti-trust
settlement. As a business executive at a company both highly
dependent on computing technology and specifically involved in
software development, I've come to the conclusion that this
settlement is not in the public interest, and fails to remedies the
problems that provoked the action in the first place.
The settlement leaves the Microsoft monopoly intact, with
numerous opportunities to the company to effectively exempt itself
from crucial provisions. The recently proposed
``donation'' to schools is just one example of how
Microsoft can turn matters to their own advantage (in this case by
decimating Apple's position in the education market).
In addition, the proposed settlement fails to address the
critical ``barrier to entry''
[[Page 28432]]
problem, enabling Microsoft to maintain an effective
``lock'' on the applications market.
In addition, the proposed settlement fails to address the
critical ``applications barrier to entry'' associated with
the installed base of 70,000 Windows applications, enabling
Microsoft to maintain an effective ``lock'' on the
operating systems market by denying competitors with other operating
systems the information needed to run these other applications on
other operating systems. Any settlement must make it
easier--;not harder--;for competitors to run the Windows
applications.
Consumers, not Microsoft, should decide what products are on
their computers. The settlement must eliminate Microsoft's various
barriers--;business and technical--;to allowing combinations
of non-Microsoft operating systems, applications, and software
components to run properly with Microsoft products.
The remedies proposed by the Plaintiff Litigating States are in
the public interest and absolutely necessary, but they are not
sufficient without these remedies.
The Tunney Act provides for the Court to hold public
proceedings, with citizens and consumer groups afforded an equal
opportunity to participate, along with Microsoft's competitors and
customers. I hope you will encourage those proceedings, and consider
carefully how to proceed in this matter. Your decisions have great
significance for the health of the US economy's most vital
industries, by eliminating Microsoft's ability to illegal constrain
markets and innovation.
Thank you for the opportunity to comment on this important
matter.
Sincerely yours,
Gil Friend
President & CEO
Natural Logic, Inc.
PO Box 119
Berkeley CA 94701
Natural Logic, Inc.
More value. Less stuff.[tm]
Tel: 1-;877-;NatLogic
http://www.NatLogic.com
MTC-00028773
From: Bill Foerster
To: Microsoft ATR
Date: 1/28/02 5:31 pm
Subject: Microsoft Settlement
US DOJ:
Attached is a letter expressing my support for the proposed
settlement with Microsoft.
Regards,
Bill
William M. Foerster
Foerster Bhupathi International, LLC
8111 Preston Road, Suite 600
Dallas, Texas 75225
1.214.369.3242 (business)
1.214.369.5363 (fax)
1.214.244.9400 (cell)
[email protected]
www.fbillc.com
William Foerster
8111 Preston Road
Suite 610
Dallas, TX 75218
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I want to take a moment to express my support for the settlement
reached in November between Microsoft and the Department of Justice.
I believe the settlement is fair to both sides and represents an
opportunity for everyone to move forward.
The terms of the settlement are very strict and mandate a number
of concessions from Microsoft. Among the terms of the settlement,
Microsoft has agreed to license its Windows operating system
products to the twenty largest computer makers on identical terms
and conditions, including price.
There should be no question as to Microsoft's compliance with
the terms of the settlement. It calls for a technical committee to
monitor Microsoft's business practices in the future.
I hope that your continued support for finalizing the settlement
will convince those states who are moving forward in their
litigation to amend their positions.
It is well past the point for the federal and state governments
to focus their resources on more urgent matters, like stimulating
our economy.
Sincerely,
William Foerster
MTC-00028774
From: Ernest Kahn
To: Microsoft ATR
Date: 1/28/02 5:29pm
Subject: Microsoft Settlement
BlankTo whom it may concern
In my experience Microsoft has turned out good products a fair
prices, It seems that their products where simply better than others
and they facilitated communications.
Ernest J. Kahn
Sharon, MA
MTC-00028775
From: Jim
To: Microsoft ATR
Date: 1/28/02 5:29pm
Subject: anti trust
I think America has forgotten that Bill Gates has brought this
country to where it is. Any attack against him is from greed and
jelousy. He has created more jobs than any one else in the area of
free interprise. I personally am ashamed my country would do this to
him.
James Payne
MTC-00028776
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:30pm
Subject: Microsoft Settlement
Please see attachment
28 Suncrest Terrace
Oneonta, NY 13820
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Today is the last day that I can contact you regarding the
finalization of the Microsoft antitrust settlement. I would like to
share my view that as the settlement is written, it appears fair to
all parties. Apparently, Microsoft has made numerous changes to
satisfy this agreement, including agreeing to work with a Technical
Committee that will serve as a watchdog of its activities and
practices. It seems to me that Microsoft and the government,
possibly no lover of the company, have hammered out an agreement
that each party can live with. Since this is the case, there should
be no reason to alter the agreement...I have become increasingly
cynical, believing that additional requirements are wanted by
competitors to satisfy their interests, certainly NOT the
``public's''.
My life, and my business'' life, have been improved and
made easier by Microsoft. The adage ``crying over sprit
milk'' has been a tactic for decades. It is time for
competitors to step up their efforts to compete: to innovate,
improve and participate in the technology revolution that just won't
quit. I also support the philanthropic works of the Gates family and
feel certain they will continue to lead the US in discovering and
pursuing worthwhile projects, some that the United States has
ignored or underfunded for decades. Let Microsoft's competitors
follow in its footsteps and show the world that the corporate world
can think beyond the ``bottom line'' and lead with
generosity. Thank you for calling for comments, and for your
attention.
Sincerely,
Carola Lewis
MTC-00028777
From: Edward Becerra
To: Microsoft ATR
Date: 1/28/02 5:40pm
Subject: Microsoft Settlement
I am opposed to tentative settlement of the United States vs.
Microsoft antitrust lawsuit.
Edward Becerra
Haxtun, Colorado 80731
MTC-00028778
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:31pm
Subject: Microsoft Settlement
Dear Attorney General John Ashcroft;
Now is the time to drop the charges against Microsoft and get on
with the real business at hand, the Enron mess!! Microsoft has not
caused thousands of people to loose their jobs, caused millions of
people to loose much of their life savings, and to be so closely
tied to the Bush administration, that it causes concern among
voters. Microsoft is just doing a better job than the rest and
should be allowed to continue it's leadership role. We all benefit
from their expertice.
Dale Schendel,
Bloomington, Mn
MTC-00028779
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:32pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
US Dept. of Justice (Legal)
The settlement is more then generous. I do not, and did not
agree with the government
[[Page 28433]]
action. It is not the justice departments job to aid and abet
competitors who cannot make it on their own.
As an example, I cannot buy a Chrysler auto frame, and a General
Motors Body and a Ford Transmission, yet that is what you have asked
Microsoft to do with it's software. To force a company to design
product so that others made add on to it is nut justice. It maybe
legal, but not justice. Were we the public to start to buy all
Fords, would you take action against Ford to force them to redesign
there product so that Chrysler can put its motor in? I think not.
ACCEPT THE SETTLEMENT AND GET OUT OF THE CASE NOW.
CC:[email protected]@
inetgw
MTC-00028780
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:32pm
Subject: Microsoft settlement
I am responding to the U.S. goverment's challenge to Microsoft
regarding their conduct in the competitive marketplace. I am
speaking from the position of a retired CEO for one of Howard
Hughes'' companies.
I see a great parallel between the Microsoft case and the
lawsuit against Hughes by TWA. After years of legal actions it
finally reached the Supreme Court. In short order it was thrown out.
Hughes won. The reason was logic. Hughes owned 70 percent of the TWA
stock when he was challenged with mismanagement! The Supreme Court
recognized the obvious. He had the legal right to make the decisions
involved.
The Microsoft case is different in detail, but identical in
concept. The actions each were (are) are charged with represent
normal, legal and proper competitive practice. Both Hughes and
Microsoft had the right to optimize their hard won positions just as
every other company does in the worldwide marketplace. A point
missed by the Monday morning, arm-chair critics is that competition
is based on survival. The professional football team doesn't let up
on the opposing team because it might lose the game in the process.
The competitors in the Microsoft case know this is the way
competition works. They operate this way too! In fact their present
legal action is just another weapon they chose to use. And the state
attourney generals who are fighting Microsoft see profit for their
state or political advantage.
My plea is not to let them get away with it!! There is no end to
this sort of challenge to the healthy capitalist system where
innovation is the engine. My suggestion is to review the TWA versus
Hughes Tool Company decision by the
U.S. Supreme Court as a reference.
Tom Stuelpnagel
[email protected]
(805) 595 2771
MTC-00028781
From: Stan Smith
To: Microsoft ATR
Date: 1/28/02 5:30pm
Subject: Microsoft Settlement
To: Department of Justice
From: Stanford L. Smith (User of Windows)
Please do whatever you can to bring this whole Microsoft action
to a close. It appears that the only thing keeping it going is the
strong ``Litigation and Lobby'' being financed by
Microsoft competitors who are able to keep the pressure on the nine
states that won't buy in to your settlement. At least the DOJ
settlement seems to have us (consumers) in mind rather than the
welfare of the Microsoft competitors.
The sooner we can get back to letting these companies spend
their money on R & D rather than lawyers, the better off we will
all be.
Thanks for listening.
MTC-00028782
From: Timothy Buckley
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 5:32pm
Subject: Microsoft Settlement
I believe this case is a deliberate attempt by companies such as
Netscape to use legal methods to help level the playing field
instead of innovating and creating a better product. I urge the
court to accept the proposed remedies, and let this case be done and
over with. Any further remedies will only serve to help Microsoft's
competitors, not Microsoft's consumers.
Thank you,
Tim Buckley
Lead Credit Coordinator
(425) 889-;3930
MTC-00028783
From: Allan Engle/wellness/stusvc/Okstate
To: Microsoft ATR
Date: 1/28/02 5:34pm
Subject: Microsoft Settlement
To whom it may concern:
In regard to Microsoft's long history of noncompliance, and
their more recent delay and defer strategies, I would strongly urge
that you scrap the proposed settlement in favor of a penalty that is
more self-enforcing. Breakup of the company would meet this
criteria. If you give them the leeway contained in the proposed
settlement, they will attempt to circumvent it at every opportunity.
Sincerely,
Allan Engle
Allan Engle, Ph.D.
Certified Novell Administrator
Oklahoma State University
Seretean Wellness Center
405-;744-;6838
MTC-00028784
From: Ruffin Bailey
To: Microsoft ATR
Date: 1/28/02 5:34pm
Subject: Microsoft Settlement
Under the Tunney Act, I would like to comment on the proposed
Microsoft settlement.
I find the punishments levied for a company that ?engaged in a
variety of exclusionary acts designed to protect its operating
system monopoly? are wholly inadequate, amounting to little more
than a slap on the wrist. I would like the settlement to have more
teeth that would serve to officially level the playing field in the
personal computer operating system market without hurting the people
at Microsoft that have put in countless hours to create what is a
useful product. Splitting Microsoft into a number of companies that
all have rights to sell and develop newly forked versions of the
operating system would be a great first step. But if this cannot be
accomplished, there are still several things that the Department of
Justice can do to help with the state of Microsoft's monopoly.
There should be no monetary penalties from Microsoft for
original equipment manufacturers (OEMs) that sell computers bundled
with Microsoft's operating systems for the inclusion of any
software, whether Sun's Java Virtual Machine, Netscape/AOL's
Netscape browser, free alternatives to Microsoft Office, or the
ability to ?dual-boot? into other alternative operating systems
preinstalled on the machine, like Linux or FreeBSD. For every pre-
packaged solution offered by Microsoft, whether its Internet
Explorer, MediaPlayer, or what-have-you, there should be another,
out of the box alternative for computer users ready for use like
Mozilla or Real's
RealPlayer or Apple's QuickTime. These should not be secondary
products, but true alternatives that users can choose upon first
booting their new computers, and should also be alternatives that
can be accessed at a future date.
Simply put, not enough has been done to level the playing field.
Microsoft's aggressive tendencies can be counterbalanced by
providing a level playing field for OEM's to sell their hardware of
choice with software of choice without punishing those who have put
in hard work at Microsoft unduly as well.
Please reconsider your original, relatively light sentencing.
Wm. Ruffin Bailey
Turben Place
Mount Pleasant, SC 29466
MTC-00028785
From: Michael Crozier
To: Microsoft ATR
Date: 1/28/02 5:33pm
Subject: Comments on the PFJ for USA vs MS
I am fully in agreement to the criticisms of the PFJ that Dan
Kegal has collected at http://www.kegel.com/remedy/remedy2.html.
In particular, I am concerned with the licencing practices that
Microsoft uses with OEM's and end user software.
Michael Crozier
834 NE Shaver ST
Portland OR 97212
MTC-00028786
From: Vicky Francis
To: Microsoft ATR
Date: 1/28/02 5:37pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am in favor of the settlement of the Microsoft antitrust case.
In a perfect world, I would like to see the case dropped in its
entirety.
However, I recognize that the likelihood of this happening is
slim, so I support the steps Microsoft is taking to bring this case
to a conclusion. The terms of the settlement
[[Page 28434]]
agreement are more than fair. In fact, I think they are entirely too
harsh. For example, Microsoft has agreed to the creation of a
technical oversight committee that will monitor the way they conduct
their business. In our free enterprise system, this seems especially
restrictive. They have also agreed to not retaliate against those
who compete against them, or those who promote Microsoft's
competitors. Our free market does not appear to be so free after
all.
While I think the agreement really goes much farther than it
should, I fully support Microsoft's decision to do what is best for
consumers, the economy, and the IT industry as a whole--;and
that is to move on.
Thank you.
Sincerely,
Vicky Francis
MTC-00028787
From: Morton M Vogel
To: Microsoft ATR
Date: 1/28/02 5:37pm
Subject: microsoft settlement
It is time to bring the above matter to finalization. The time,
effort and money being expended on this extended litagation is
wrong. At this time we should be expending our efforts to enhance
and develope the best in the computer world, both hardware and
sfotware and not be bogged down in non productive situations. Reach
a settlement now, so that we can all move forward. Litigation does
not produce progress- only additional income for the legal
profession.
Morton M. Vogel
e-mail Mortlee@ Juno.com
CC:[email protected]@
inetgw
MTC-00028788
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:37pm
Subject: Microsoft Settlement
Please find attached the objections to the settlement proposal.
The original format is .sxw (OpenOffice), and I apologize in advance
for any problems in converting it to MS Word, RTF and HTML formats,
which I also attach. I will fax a copy in short order so you may see
the original.
Unfortunately some time commitments have prevented me from fully
addressing all the issues. Within the next week or two a more
complete draft will be available. I pray you will still consider it
that time- given the utmost importance of this settlement on the
future of our society and the freedoms which we enjoy.
Best regards,
Andreas Pour
Chairman
KDE League, Inc.
Antitrust Division U.S. Department of Justice 601 D Street NW Suite
1200
Washington, DC 20530-;0001
The Honorable Colleen Kollar-Kotelly
United States District Court for the District of Columbia
333 Constitution Avenue, NW
Washington, DC 20001
Re: US v. Microsoft, Civil Action No. 98-;1232: Revised
Proposed Final Judgment
The Honorable Judge Kollar-Kotelly and the US Department of
Justice: Please find attached the firm objections of the KDE League,
Inc. to the above- referenced proposed final judgment (the
``Proposal''). The KDE League is a group of industry
leaders and KDE developers focused on facilitating the promotion,
distribution, and development of KDE. KDE is a contemporary, free
``Open Source'' desktop environment.
In many ways, KDE is the functional equivalent of Windows. It
consists of a modern, elegant, intuitive desktop environment,
including a modern browser, accompanied by a host of easy-to-use and
easy-to-learn applications, including the productivity/office suite
KOffice. In addition, KDE provides a broad array of intuitive
graphical configuration tools. In fact, APPS.KDE.com (a KDE/Qt
application website) lists over 1,250 publicly-available KDE
applications (it should be noted that someone using KDE can also run
a number of non-KDE applications, such as GNOME, Motif, wxWindows,
X, etc. applications).
The comprehensive set of tools available to KDE users combine to
make system administration substantially easier than the standard
command-line-driven UNIX/Linux administration, and hence make Linux
and other UNIXes more competitive with Microsoft not only in the
desktop markets but also in the server operating system markets.
While KDE is most commonly used in conjunction with Linux, it is
extremely portable and versatile, and does not depend on any
particular operating system. For example, it also runs successfully
on many other systems (such as Sun's Solaris, Compaq's Tru64, IBM's
AIX, HP's HP-UX, and other UNIXes).
Moreover, since KDE is based on an outstanding graphical toolkit
called Qt, and since Qt is also available for Windows, the new Mac
OS X, as well as embedded devices (such as Sharp's new Zaurus), KDE
has the potential to become a familiar environment deployed in a
broad array of heterogeneous environments.
As you are undoubtedly aware, Microsoft has often been noted,
during the trial and particularly in recent months, as viewing Open
Source as the only significant challenge to its reign. So far, Open
Source--;particularly Linux--;has been largely limited to
server systems. But in recent months the defendant has been paying
increasing attention to KDE, and at this juncture KDE is the major
direct competitor with Microsoft Windows desktop operating system
products and Microsoft middleware and productivity applications and,
through its capacity to simplify installation, usage and
administration, a major indirect competitor with the defendant in
the server operating system market.
In recognition of the strength and power of KDE as a desktop
environment, an ever-growing body of companies and governments have
started the switch to KDE, including the Korean government, which is
migrating 120,000 office workers to KDE from Windows, and other
companies and governments are seriously contemplating the switch,
including the government of Germany. Due to its maturity, low cost,
features and active developer community, as well as due to the
freedoms KDE grants its users, KDE constitutes the most viable
competitor to Microsoft Windows in the desktop operating system
market and the strongest factor in the expansion of UNIX-based
operating systems in the server market.
The defendant has now clearly observed that in fact KDE is ready
and able to expand the role of Open Source as well as proprietary
UNIXes on the office, school and home desktop, as well as on TV
settop boxes, webpads, handheld- devices and other computing
platforms.
The KDE League strongly feels that the proposed settlement does
not adequately protect KDE from the defendant's monopoly power, and
hence leaves the defendant free to attempt to crush its strongest
potential competitor in an anticompetitive manner. In fact, we
anticipate that if the Proposal is approved, the defendant may feel
even less tethered than it has during the course of this seven-plus-
year proceeding to use unlawful practices to attempt to derail KDE
from widespread acceptance. The fact that the government has refused
my requests for meetings to discuss how the Proposal might be
reworded to provide some comfort that the defendant will be unable
to use unlawful practices to crushing its strongest competitor adds
little solace to a weakly-worded document.
At this juncture I would like to disclose that, from the time of
commencement of this case until approximately June 1999, I was
employed as an attorney by counsel for the defendant in this matter.
However, I was exclusively involved in representing other clients in
unrelated matters. I never performed any legal services for the
defendant, nor was ! ever exposed to any non-public information
about the defendant, whether relating to this litigation or
otherwise.
I would also like to point out that the views and opinions in
this memorandum express the views of the KDE League, and may not
necessarily express the views of its members.
Best regards,
Andreas Pour
Chairman
KDE League, Inc.
Introduction
The KDE League opposes the above-referenced proposed final
judgment (the ``Proposal''). Specifically, the Proposal
lacks adequate enforcement provisions, is too limited in scope, and
fails to address issues of restitution. Our objections will focus on
the specific problems faced by an Open Source project such as KDE/
Linux, though many will apply more broadly as well.
In conducting its review, the Court should bear in mind the
applicable provisions of 15 U.S.C. Sec. 16(e):
(e) Public interest determination
Before entering any consent judgment proposed by the United
States under this section, the court shall determine that the entry
of such judgment is in the public interest. For the purpose of such
determination, the court may consider--;
(1) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration or relief sought, anticipated effects of
alternative remedies
[[Page 28435]]
actually considered, and any other considerations bearing upon the
adequacy of such judgment;
(2) the impact of entry of such judgment upon the public
generally and individuals alleging specific injury from the
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trial.
As the Supreme Court wrote in U.S. v. Grinnell Corp., 384 U.S.
563 (1966): We start from the premise that adequate relief in a
monopolization case should put an end to the combination and deprive
the defendants of any of the benefits of the illegal conduct, and
break up or render impotent the monopoly power found to be in
violation of the Act. That is the teaching of our cases, notably
Schine Theatres v. United States, 334 U.S. 110, 128 -129.
As a result of its limited, if not negligible, scope, the
absence of any enforcement provisions for private litigants who have
shouldered the expense of the trial already and who have been
financially injured by the defendant, and the absence of any
restitution to the victims of the defendants'' unlawful
conduct, the Proposal is at best palpably without, if not directly
against, the public interest. As has been said by industry analyst
Robert X. Cringely, ``If this deal goes through as it is
written, Microsoft will emerge from the case not just unscathed, but
stronger than before''.
Unenforceable.
The Proposal makes enforcement of its minimal restrictions by
parties actually harmed by the defendant's violation of its
provisions practically impossible. In particular, should the
defendant use unlawful and anti-competitive practices against KDE,
neither the KDE developers nor the KDE League will be likely to
obtain redress for such violations. This failure may ultimately deny
consumers the choice to forgo the use of some or all of
defendants'' products.
To ensure private litigants, who, as the courts so far have
agreed, have been financially injured by the defendant, have a
remedy for the defendant's unlawful conduct, and so that the
defendant's competitors, such as KDE, can have the hope to obtain
justice should the defendant continues its pattern of unlawful
practices, the Government should require that Microsoft admit to its
standing as a monopolist and the violations of the Sherman Act
affirmed by the court of appeals, together with any additional
violations this Court may find upon remand of, and consistent with,
the appellate court's order.
[pour\1\]
---------------------------------------------------------------------------
\1\See Robert X. Cringely, He's Not in It for the Profit
(Dec. 6, 2001, PBS Presents).
---------------------------------------------------------------------------
The proposed remedies are inadequate for private litigants for
the following reasons. First, the Final Judgment provides that it
``does not constitute any admission by any party regarding any
issue of fact or law''.\2\ The clearest implication of this
provision is that the defendant is not legally determined to be a
``monopoly'' in this case for purposes of res judicata or
collateral estoppel. Microsoft has proven in this case that, for all
practical resources, it has infinite resources, time, tenacity and
patience to fight any potential litigants. In fact, recent SEC
filings indicate that the defendant is sitting on a $36 billion cash
horde. Even the government, with all its resource, has fought for
almost seven- and-a-half years, only to end up with a Proposal which
only the defendant's stockholders could cheer about. How is a free,
open project like KDE to obtain redress against such a tenacious and
resourceful opponent?
---------------------------------------------------------------------------
\2\See Proposal, Preamble. The Proposal reads in relevant
part: AND WHEREAS, this Final Judgment does not constitute any
admission by any party regarding any issue of fact or law; and
thwart competition in its markets. The Government, having fought its
battle in what in technological terms is a generation, cannot really
take seriously its reference to remedies under Section 4 of the
Clayton Act in Article VI of its Competitive Impact Statement (doc.
9549).
---------------------------------------------------------------------------
Though the conclusion was obvious to all judges engaged in this
matter, both at trial and on appeal, the fact is that virtually no
private plaintiff will be able to afford to prove that Microsoft is
a monopoly, a necessary first step in obtaining relief against the
defendant should it continue to abuse its monopoly position
Second, the enforcement provisions of the Proposal are weak
enough to amount to nothing but a ruse. For example, the
``Technical Committee'' which is charged with the duty to
``assist in enforcement of and compliance with th[e]
Final'' Judgment, are (1) picked by MS (though one is picked by
MS and one by Justice and the third by the first two, in light of
how this Proposal signals the government'' practical
abandonment of prosecution of this matter, and in light of the
defendant's tenacity, it is likely in our opinion that the third
person will favor the defendant); (2) sworn to secrecy; (3) paid by
MS; (4) required to work on MS's ``campus''; and (5)
unable to speak with any MS employee without an MS lawyer present.
See Proposal, Section IV.B. The Proposal reads in relevant part:
B. Appointment of a Technical Committee
1. Within 30 days of entry of this Final Judgment, the parties
shall create and recommend to the Court for its appointment a three-
person Technical Committee (``TC'') to assist in
enforcement of and compliance with this Final Judgment.
2. The TC members shall be experts in software design and
programming. No TC member shall have a conflict of interest that
could prevent him or her from performing his or her duties under
this Final Judgment in a fair and unbiased manner. Without
limitation to the foregoing, no TC member (absent the agreement of
both parties):
a. shall have been employed in any capacity by Microsoft or any
competitor to Microsoft within the past year, nor shall she or he be
so employed during his or her term on the TC;
b. shall have been retained as a consulting or testifying expert
by any person in this action or in any other action adverse to or on
behalf of Microsoft; or
c. shall perform any other work for Microsoft or any competitor
of Microsoft for two years after the expiration of the term of his
or her service on the TC.
3. Within 7 days of entry of this Final Judgment, the Plaintiffs
as a group and Microsoft shall each select one member of the TC, and
those two members shall then select the third member. The selection
and approval process shall proceed as follows.
a. As soon as practicable after submission of this Final
Judgment to the Court, the Plaintiffs as a group and Microsoft shall
each identify to the other the individual it proposes to select as
its designee to the TC. The Plaintiffs and Microsoft shall not
object to each other's selection on any ground other than failure to
satisfy the requirements of Section IV.B.2 above. Any such objection
shall be made within ten business days of the receipt of
notification of selection.
b. The Plaintiffs shall apply to the Court for appointment of
the persons selected by the Plaintiffs and Microsoft pursuant to
Section IV.B.3.a above. Any objections to the eligibility of a
selected person that the parties have failed to resolve between
themselves shall be decided by the Court based solely on the
requirements stated in Section IV.B.2 above.
c. As soon as practical after their appointment by the Court,
the two members of the TC selected by the Plaintiffs and Microsoft
(the ``Standing Committee Members'') shall identify to the
Plaintiffs and Microsoft the person that they in turn propose to
select as the third member of the TC. The Plaintiffs and Microsoft
shall not object to this selection on any grounds other than failure
to satisfy the requirements of Section IV.B.2 above. Any such
objection shall be made within ten business days of the receipt of
notification of the selection and shall be served on the other party
as well as on the Standing Committee Members.
d. The Plaintiffs shall apply to the Court for appointment of
the person selected by the Standing Committee Members. If the
Standing Committee Members cannot agree on a third member of the TC,
the third member shall be appointed by the Court. Any objection by
Microsoft or the Plaintiffs to the eligibility of the person
selected by the Standing Committee Members which the parties have
failed to resolve among themselves shall also be decided by the
Court based on the requirements stated in Section W.B.2 above.
4. Each TC member shall serve for an initial term of 30 months.
At the end of a TC member's initial 30-month term, the party that
originally selected him or her may, in its sole discretion, either
request re-appointment by the Court to a second 30-month term or
replace the TC member in the same manner as provided for in Section
IV.B.3.a above. In the case of the third member of the TC, that
member shall be re-appointed or replaced in the manner provided in
Section W.B.3.c above.
5. If the United States determines that a member of the TC has
failed to act diligently and consistently with the purposes of this
Final Judgment, or if a member of the TC resigns, or for any other
reason ceases to serve in his or her capacity as a member of the TC,
the person or persons that originally selected the TC member shall
select a
[[Page 28436]]
replacement member in the same manner as provided for in Section
IV.B.3.
6. Promptly after appointment of the TC by the Court, the United
States shall enter into a Technical Committee services agreement
(``TC Services Agreement'') with each TC member that
grants the rights, powers and authorities necessary to permit the TC
to perform its duties under this Final Judgment. Microsoft shall
indemnify each TC member and hold him or her harmless against any
losses, claims, damages, liabilities or expenses arising out of, or
in connection with, the performance of the TC's duties, except to
the extent that such liabilities, losses, damages, claims, or
expenses result from misfeasance, gross negligence, willful or
wanton acts, or bad faith by the TC member. The TC Services
Agreements shall include the following.
a. The TC members shall serve, without bond or other security,
at the cost and expense of Microsoft on such terms and conditions as
the Plaintiffs approve, including the payment of reasonable fees and
expenses.
b. The TC Services Agreement shall provide that each member of
the TC shall comply with the limitations provided for in Section
IV.B.2 above.
7. Microsoft shall provide the TC with a permanent office,
telephone, and other office support facilities at Microsoft's
corporate campus in Redmond, Washington. Microsoft shall also, upon
reasonable advance notice from the TC, provide the TC with
reasonable access to available office space, telephone, and other
office support facilities at any other Microsoft facility identified
by the TC.
8. The TC shall have the following powers and duties:
a. The TC shall have the power and authority to monitor
Microsoft's compliance with its obligations under this final
judgment.
b. The TC may, on reasonable notice to Microsoft:
i. interview, either informally or on the record, any Microsoft
personnel, who may have counsel present; any such interview to be
subject to the reasonable convenience of such personnel and without
restraint or interference by Microsoft;
ii. inspect and copy any document in the possession, custody or
control of Microsoft personnel;
iii.. obtain reasonable access to any systems or equipment to
which Microsoft personnel have access;
iv. obtain access to, and inspect, any physical facility,
building or other premises to which Microsoft personnel have access;
and
v. require Microsoft personnel to provide compilations of
documents, data and other information, and to submit reports to the
TC containing such material, in such form as the TC may reasonably
direct.
c. The TC shall have access to Microsoft's source code, subject
to the terms of Microsoft's standard source code Confidentiality
Agreement, as approved by the Plaintiffs and to be agreed to by the
TC members pursuant to Section IV.B.9 below, and by any staff or
consultants who may have access to the source code. The TC may
study, interrogate and interact with the source code in order to
perform its functions and duties, including the handling of
complaints and other inquiries from non-parties.
d. The TC shall receive complaints from the Compliance Officer,
third parties or the Plaintiffs and handle them in the manner
specified in Section IV.D below.
e. The TC shall report in writing to the Plaintiffs every six
months until expiration of this Final Judgment the actions it has
undertaken in performing its duties pursuant to this Final Judgment,
including the identification of each business practice reviewed and
any recommendations made by the TC.
f. Regardless of when reports are due, when the TC has reason to
believe that there may have been a failure by Microsoft to comply
with any term of this Final Judgment, the TC shall immediately
notify the Plaintiffs in writing setting forth the relevant details.
g. TC members may communicate with non-parties about how their
complaints or inquiries might be resolved with Microsoft, so long as
the confidentiality of information obtained from Microsoft is
maintained.
h. The TC may hire at the cost and expense of Microsoft, with
prior notice to Microsoft and subject to approval by the Plaintiffs,
such staff or consultants (all of whom must meet the qualifications
of Section IV.B.2) as are reasonably necessary for the TC to carry
out its duties and responsibilities under this Final Judgment. The
compensation of any person retained by the TC shall be based on
reasonable and customary terms commensurate with the individual's
experience and responsibilities.
i. The TC shall account for all reasonable expenses incurred,
including agreed upon fees for the TC members'' services,
subject to the approval of the Plaintiffs. Microsoft may, on
application to the Court, object to the reasonableness of any such
fees or other expenses. On any such application: a) the burden shall
be on Microsoft to demonstrate unreasonableness; and (b) the TC
member(s) shall be entitled to recover all costs incurred on such
application (including reasonable attorneys'' fees and costs),
regardless of the Court's disposition of such application, unless
the Court shall expressly find that the TC's opposition to the
application was without substantial justification.
9. Each TC member, and any consultants or staff hired by the TC,
shall sign a confidentiality agreement prohibiting disclosure of any
information obtained in the course of performing his or her duties
as a member of the TC or as a person assisting the TC to anyone
other than Microsoft, the Plaintiffs, or the Court. All information
gathered by the TC in connection with this Final Judgment and any
report and recommendations prepared by the TC shall be treated as
Highly Confidential under the Protective Order in this case, and
shall not be disclosed to any person other than Microsoft and the
Plaintiffs except as allowed by the Protective Order entered in the
Action or by further order of this Court.
10. No member of the TC shall make any public statements
relating to the TC's activities.
Appointment of a Microsoft Internal Compliance Officer
1. Microsoft shall designate, within 30 days of entry of this
Final Judgment, an internal Compliance Officer who shall be an
employee of Microsoft with responsibility for administering
Microsoft's antitrust compliance program and helping to ensure
compliance with this Final Judgment.
2. The Compliance Officer shall supervise the review of
Microsoft's activities to ensure that they comply with this Final
Judgment. He or she may be assisted by other employees of Microsoft.
3. The Compliance Officer shall be responsible for performing
the following activities:
a. within 30 days after entry of this Final Judgment,
distributing a copy of the Final Judgment to all officers and
directors of Microsoft;
b. promptly distributing a copy of this Final Judgment to any
person who succeeds to a position described in Section IV.C.3.a
above;
c. ensuring that those persons designated in Section W.C.3.a
above are annually briefed on the meaning and requirements of this
Final Judgment and the U.S. antitrust laws and advising them that
Microsoft's legal advisors are available to confer with them
regarding any question concerning compliance with this Final
Judgment or under the U.S. antitrust laws;
d. obtaining from each person designated in Section IV.C.3.a
above an annual written certification that he or she: (i) has read
and agrees to abide by the terms of this Final Judgment; and (ii)
has been advised and understands that his or her failure to comply
with this Final Judgment may result in a finding of contempt of
court;
e. maintaining a record of all persons to whom a copy of this
Final Judgment has been distributed and from whom the certification
described in Section IV.C.3.d above has been obtained;
f. establishing and maintaining the website provided for in
Section IV.D.3.b below.
g. receiving complaints from third parties, the TC and the
Plaintiffs concerning Microsoft's compliance with this Final
Judgment and following the appropriate procedures set forth in
Section IV.D below; and
h. maintaining a record of all complaints received and action
taken by Microsoft with respect to each such complaint.
Voluntary Dispute Resolution
1. Third parties may submit complaints concerning Microsoft's
compliance with this Final Judgment to the Plaintiffs, the TC or the
Compliance Officer.
2. In order to enhance the ability of the Plaintiffs to enforce
compliance with this Final Judgment, and to advance the
parties'' joint interest and the public interest in prompt
resolution of issues and disputes, the parties have agreed that the
TC and the Compliance Officer shall have the following additional
responsibilities.
3. Submissions to the Compliance Officer.
a. Third parties, the TC, or the Plaintiffs in their discretion
may
Third, making matters worse are the Proposal's ``No Third
Party Rights''
[[Page 28437]]
provisions.\4\ The absence of third party rights is, in fact,
explicitly stated twice in the Proposal: first in Section III.I
(last paragraph) and again in Section VIII). Thus if a private party
has been harmed by the defendant's violation of the Final Judgment,
that person's sole recourse is to approach the Justice Department or
a State to request enforcement of the Proposal. Given the fact that
the Justice Department has not even responded to the KDE League's
request for a hearing regarding the settlement, it seems that the
likelihood that the Justice Department acting on behalf of any Open
Source project or other small company is marginal at best. In
addition, many Open Source developers live in other countries,
making it extremely difficult for them to obtain any redress through
the courts. (Here it is important to bear in mind that while these
developers live in other countries, their software is freely
available to American consumers, and hence submit to the Compliance
Officer any complaints concerning Microsoft's compliance with this
Final Judgment. Without in any way limiting its authority to take
any other action to enforce this Final Judgment, the Plaintiffs may
submit complaints related to Sections III.C, III.D, III.E and III.H
to the Compliance Officer whenever doing so would be consistent with
the public interest.
---------------------------------------------------------------------------
\4\See Proposal, Section III.I (last paragraph) and
Section VIII.
---------------------------------------------------------------------------
b. To facilitate the communication of complaints and inquiries
by third parties, the Compliance Officer shall place on Microsoft's
Internet website, in a manner acceptable to the Plaintiffs, the
procedures for submitting complaints. To encourage whenever possible
the informal resolution of complaints and inquiries, the website
shall provide a mechanism for communicating complaints and inquiries
to the Compliance Officer.
c. Microsoft shall have 30 days after receiving a complaint to
attempt to resolve it or reject it, and will then promptly advise
the TC of the nature of the complaint and its disposition.
4. Submissions to the TC.
a. The Compliance Officer, third parties or the Plaintiffs in
their discretion may submit to the TC any complaints concerning
Microsoft's compliance with this Final Judgment.
b. The TC shall investigate complaints received and will consult
with the Plaintiffs regarding its investigation. At least once
during its investigation, and more often when it may help resolve
complaints informally, the TC shall meet with the Compliance Officer
to allow Microsoft to respond to the substance of the complaint and
to determine whether the complaint can be resolved without further
proceedings.
c. If the TC concludes that a complaint is meritorious, it shall
advise Microsoft and the Plaintiffs of its conclusion and its
proposal for cure.
d. No work product, findings or recommendations by the TC may be
admitted in any enforcement proceeding before the Court for any
purpose, and no member of the TC shall testify by deposition, in
court or before any other tribunal regarding any matter related to
this Final Judgment.
e. The TC may preserve the anonymity of any third party
complainant where it deems it appropriate to do so upon the request
of the Plaintiffs or the third party, or in its discretion. any harm
visited upon these international developers results in direct harm
to the American consumers which the Antitrust Laws are designed to
protect.) This limitation should be particularly borne in mind when
reading the entire Proposal, such as the supposed
``abandonment'' of certain trademark rights in Section
VI.T.
Fourth, the term of the agreement is extremely short--;only
five years.\5\ Even if the government proves to the court ``a
pattern of willful and systematic violations'', the Proposal
may only be extended once for a maximum of two years.\6\ Thus, given
the defendant's dilatory legal maneuverings, it is easily possible
that the defendant can blatantly violate the Proposal from the get-
go and have the Proposal expire before proceedings can adjudge it
guilty of any violations.
---------------------------------------------------------------------------
\5\See Proposal, Section V.A.
\6\See Proposal, Section V.B.
---------------------------------------------------------------------------
Of course there is also a ``Voluntary Dispute
Resolution'' provision, where essentially a victim of the
defendant's monopoly abuses would have the opportunity to submit a
grievance through a web form\7\ Insofar as the defendant
adamantly denies any wrongdoing in the face of a lawsuit by the
federal government and numerous States, and in the face of every
judge to have reviewed the matter and disagreed with them, it
strikes us as extremely unlikely that any aggrieved party would
obtain resolution using this method. Under the Proposal, the
defendant then has 30 days to decide, in effect, to ignore the
request (it is possible the defendant might redress a grievance, of
course, but since the defendant continues to assert it is not a
monopoly and not guilty of any wrongdoing, it is totally
unreasonable for the government to rely on this in its evaluation of
the Proposal).\8\
---------------------------------------------------------------------------
\7\See Proposal, Section IV.D.
\8\See Proposal, Section W.D(3).
---------------------------------------------------------------------------
Alternatively, a complaint may be submitted to the Technical
Committee, which in turn may review a complaint (it is notable in
this regard that though the Proposal speaks of ``shall
investigate'', as there are no third party rights under the
Proposal, a third party has no remedy in the event the Technical
Committee fails to take such action).\9\ In the event the Technical
Committee agrees with the person filing a grievance, that person is
barred from every presenting any evidence in court about the
findings of the Technical Committee.\10\ In the final analysis this
situation probably does not have a great practical effect, as the
person filing the grievance does not have any rights under the
Proposal anyway.
---------------------------------------------------------------------------
\9\See Proposal, Section W.D(4).
\10\See Proposal, Section IV.D(4)(d).
---------------------------------------------------------------------------
However, it does highlight in how many ways the defendant has
been able to insulate itself from any responsibility for actual
wrongdoing it engages in, and how the Technical Committee is a
veritable mirage with respect to any party having a legitimate
grievance against the defendant. OS Only The restrictions imposed on
the defendant in the Proposal are inadequate to prevent the
defendant from further engaging in reasonably predictable unlawful
behavior. Moreover, the restrictions are inadequate to protect our
democracy from the overconcentration of power left in the
defendant's hands. The restrictions of the Proposal have the
following principal shortcomings:
First, Microsoft's office, multimedia, Internet and other
products, although many of which from all appearances each
constitutes a monopoly onto themselves, are not even addressed by
the Proposal. Instead, only the ``OS'' is covered. Viewed
in light of the defendant's .NET strategy for the future, this
limitation all but renders the Proposal's prohibitions vacuous.
Although it is a fact proven in this case that the defendant
used its OS as a basis to abuse its monopoly position and compete
unfairly, the essence of the violations related to the incorporation
by the defendant of additional technologies into its
``OS''. This inclusion repeatedly encompassed items, such
as a browser or multimedia player that, in reality, do not form part
of the OS but rather are separate applications as they do not have
any responsibility for allocating limited resources, such as memory,
disk space, screen space, etc., among competing applications, but
rather themselves are applications competing for these limited
resources).
Under the Proposal, the OS is, at least to some minimal extent
(presumably far less than the defendant could have hoped when it
formulated its current NET strategy), subject to restrictions.
Accordingly, one can reasonably anticipate that the defendant's new
strategy will be to extract functionality from the OS. Instead,
these applications could be provided separately, either as
``free'' downloads from the Internet (of course if, as may
be expected, they won't work without the defendant's OS they are not
``free'') or as network services provided over the
Internet or a local network, providing a credible justification for
reclassifying as an application what was before (at least according
to the defendant) part of the OS.
Specifically, the defendant has ``bet the company'' on
its .NET platform. The .NET strategy means any device which has one
application (for simplicity, something equivalent to Java) can
access a great multitude of services, whether provided by MS or its
allies. The OS itself can be restored to what traditionally has been
considered an OS, to wit, a system for allocating shared resources
(such as access to memory, disk space, the screen, etc.) amongst
competing applications, such as multimedia players, browsers, etc.,
rather that artificially defined to include those applications
itself. Such an approach can be seen with some of the defendant's
recent home products.
In other words, the last decade has witnessed MS simply
``integrating'' applications into the OS to ensure control
over more applications and expand its OS monopoly (for example, when
MS integrated its Internet browser into the OS, Netscape's Navigator
was doomed). With the OS under
[[Page 28438]]
attack and possibly subject to regulation, the defendant has begun
taking the direct opposite tack, undermining the importance of the
OS and extracting and separating the core functionality provided by
its applications. Of course, from the user's perspective, nothing
will have visibly changed.
Second, by reserving to the defendant the right to determine
``in its sole discretion'' the software code which
comprises a ``Windows Operating System Product'', the
Proposal grants the defendant the uncurtailed freedom to redefine
the term ``OS''.\11\ Notably, the definition of
``Microsoft Middleware Product'' is limited to products
which are ``in a Windows Operating System Product'')\12\
Hence, if the OS is reduced in significance, and the Middleware
Products are either bundled separately (as a group of add-ons,
similar to how currently MS Office is an add-on, possibly available
for free download or use to anyone with a registered MS Operating
System) or provided as a service via the Internet or some other
computer network, such products (though essentially the same) would
not be covered by the Proposal either.
---------------------------------------------------------------------------
\11\See Proposal, Section VI.U.
\12\See Proposal, Section VI.K.
---------------------------------------------------------------------------
Thus, the minimal restrictions included in the Proposal relate
to something about which the defendant may reasonably foreseeably no
longer care. Having abused its monopoly in the desktop to gain a
monopoly in applications (including certain middleware), the
defendant can/likely will simply switch to abusing its monopoly in
applications, and nothing in the Proposal places any restrictions on
that foreseeable tactic.
Third, another extremely important inadequacy of the Proposal is
the complete omission of the defendant's office/productivity
applications (``Productivity Products''). It seems clear
that the defendant enjoys a monopoly in at least the office
productivity market (Word, Excel, Powerpoint, FrontPage, etc.)
commensurate with (or perhaps even more so) its OS monopoly.
Thus, for example, the provisions of Section II.E of the
Proposal, which (to some very limited extent) require the defendant
to share ``Communication Protocols'' with third parties to
enable them to interoperate with Windows Operating System Products,
do not extent to Productivity Products. In particular, the
definition of ``Communications Protocol'' is limited to
tasks involving a ``Windows Operating Systems Product'',
which as noted does not include Productivity Products)\13\
---------------------------------------------------------------------------
\13\See Proposal, Section VI.B.
---------------------------------------------------------------------------
In addition, the principal way in which the defendant maintains
its monopoly in Productivity Applications is through the use of file
formats which are extremely - if not unnaturally--;difficult for
competitors to decipher. Without access to the details of such file
formats (the standards published on the defendant's website are
totally inadequate), competing developers cannot create adequate
filters so that their projects can interoperate with the defendant's
Productivity Products. As the vast majority of the human knowledge
base has been ``locked'' into these decidedly proprietary
formats, the absence of an open standard limits consumer choice and
may even prevents consumers from switching to another operating
system.
One obvious manner in which the lack of attention to Productivy
Products comes into play is in the ``restrictions'' of
Section III.A. These do not prevent the defendant from retaliating
against an OEM for the ``protected'' conduct in the
pricing of such additional software, as well as other popular
software distributed by the defendant (such as its web server or
database products). Similarly, the provisions of the Proposal which
to some limited if not negligible extent require the defendant to
permit others to learn the defendant's secret protocols do not even
pretend to extend to the format of its information encryption,
encoding and other obfuscation. Volumous Exceptions
What few requirements are imposed on the defendant are largely
undone by the breadth of the qualifications in III.J of the
Proposal, particularly subsection 2. Provision (a) thereof
essentially disqualified all corporations (including the defendant
itself), as it is impossible not to have a ``history'' of
violation of intellectual property rights presumably even making an
unpermitted backup copy would satisfy this broad provision).
Provision (b) requires demonstration of a ``reasonable
business'' need (as opposed to reasonable technical need) for a
``planned or shipping product''. The provision would
essentially require a competitor to disclose to the defendant its
non-public, planned products, without any confidentiality, non-
competition or other assurance that the defendant will not use this
information to benefit itself or harm the supplier. Provision (c)
entitles the defendant to establish ``reasonable, objective
standards ... for certifying the authenticity and viability of its
business'', which standards for some unknown reason the
defendant is not now able to articulate, leading to a very low
expectation as to the reasonableness and objectiveness of the
eventual standards.
Undoubtedly provisions (b) and (c) are intended to prevent Open
Source projects, which to date form the sole serious competitor to
the defendant over its range of products, from claiming any rights
specified in the Proposal. Generally Open Source developers program
for the challenge and joy of expression, rather than as part of a
``viable business''. As Open Source software is free, the
defendant could quite rightfully argue that the developers do not
have a ``viable business''. Yet from the perspective of a
software user, it hardly matters what the developers''
motivation is; in fact a user might prefer software that is
developed under the Open Source model rather than for profit.
Finally, provision (d) permits the defendant to deny any request
unless the party making the request in essence submits all its trade
secrets and intellectual property to a ``third party''.
Since this ``third party'' (not to be confused with
``independent party'') is selected in the defendant's sole
discretion, and since there is no provision assuring the
confidentiality of any data submitted or that any party reviewing
the information--;including this ``third
party''--;itself satisfies the criteria of Section III.J,
any requester will have to assume that all the submitted information
will be carefully reviewed by the defendant.
No Protection to Consumers
The Proposal also does not provide any protection to consumers.
While some indirect protection is provided via the limited
protections afforded to OEMs, large consumers (such as Fortune 1000
companies) receive no protection. For example, nothing in the
Proposal appears to prevent the defendant from raising prices on
software to, for example, General Electric if General Electric
elects to deploy KDE in its offices. In effect, the defendant is
free to retaliate freely against large companies, governments,
universities, and other institutions which elect to employ competing
products in some but not all of their computer systems. No
Protection for ISVs/Developers on other Platforms As recognized by
the trial court, both by the defendant and the plaintiff, Open
Source clearly represents the most viable competitive threat to
defendant's monopoly. Nevertheless, the Proposal does not provide
any means for this competition to compete fairly with the defendant.
For example, the defendant's obligation to release Documentation
and APIs under Section III.D does not extend to document formats
(such as MS Office formats or video/audio ``codecs'' used
in multimedia applications) or network protocols used by the
defendant to maintain its monopoly, nor does it prevent the
defendant from pursuing patents or other exclusive legal rights on
such formats and protocols solely or substantially for the purpose
of preventing competition from software vendors/developers on other
platforms. In addition, as noted above, it is far from clear that
any of the limited and unenforceable restrictions in the Proposal
apply to Open Source businesses and developers at all.
Proposal Language
Much of the language of the Proposal appears to be drafted to
permit easy circumvention. This point will be made with a handful of
examples, although many more can be identified in the Proposal. For
example, Section III.A uses the term ``known to
Microsoft'', as opposed to something less stringent (knowledge
being very difficult to prove), such as leaving out the language
``it is known to Microsoft that'' altogether or by using
the substitute phrase ``it is or should be known to or
suspected by Microsoft that''. In addition, provision III.A.2
does not provide protection to OEMs who ship Personal Computers that
boots only into a competing operating system. As another example,
Section III.C.4 prohibits the defendant from entering into any
agreement with an OEM which restricts the ability of the user to
launch another operating system from the boot prompt. However, the
provision does not restrict the defendant from causing its operating
system to delete any boot loader which might provide the user a
choice of which operating system to launch. In fact, the defendant's
operating systems are well known to so interfere with the operation
of other operating systems. In addition, the provision fails to
provide that the defendant is barred from requiring OEMs to install
a Windows Operating System on all
[[Page 28439]]
its products, which has been the case in the past and which forces
consumers to pay for a product they either do not want or need and
makes alternative operating systems unable to compete with the
defendant on the basis of price.
The provisions of Section III.E similarly fall short of the goal
of permitting competition with the defendant. In particular, the
disclosure of Communication Protocols is limited by Section III.J.1,
which broadly exempts any information ``which would compromise
the security of a particular installation or group of
installations''. While superficially this sounds reasonable,
the gaping hole is created by reference to ``any portion[] or
layer[] of Communication Protocols''. Of course, it would be
difficult to imagine that knowledge of a communication protocol
layer could compromise security, and hence the addition of such
language by the defendant would strongly indicate its intention to
create such layers in order to prevent competitors from
interoperating with its products. It is worth noting at this
juncture that all the major authentication, security and encryption
schemes rely on completely open protocols and that security is
afforded solely through an unknown key, token or similar access
control mechanism rather than through any portion of the protocol
itself. This is true because it is generally considered insecure to
rely on aspects of a protocol for security or authentication as they
are quite easy to reverse engineer, i.e. defeat, by anyone not
concerned with compliance with the law.
Section III.J.2 requires the defendant to permit competition
only when a ``Windows Operating System Product'' (which,
as noted more below, is a definition entirely within the control of
the defendant) launches a ``Microsoft Middleware Product''
(essentially a browser, Java, a media player, a chat client, a mail
client or a calendar client), but only if (a) the product is opened
in a ``Top- Level Window'', and b) either (i) all of the
user interface elements are displayed, or ii) the Trademark of the
Microsoft Middleware Product is displayed. Thus, if the product is
not opened in a ``Top-Level Window'', the defendant can
prevent the consumer from using a competitor's product. Why, might
one reasonably ask, would whether or not a media player has a
separate ``move'' and ``resize'' button affect
whether or not the user should have a choice over the media player?
In fact, the definition of ``Top-Level Window'' is
entirely obtuse. Technically, any ``window'' can contain
``sub-windows''--;even a simple dialog box is composed
of many sub-windows (e.g., each text item, each checkbox, each text
edit box, etc. is a ``window''). Since this is a
requirement, one must assume it means something more. Hence the
requirement leaves a tremendous amount of wiggle room for the
defendant.
Similarly, clause (c) of the definition of ``Top-Level
Window'' permits ample room for manipulation. The defendant can
simply ensure that at least the ``user interface
elements'', as opposed to the actual functioning of the
program, is not under the control of an ``independent
process''. It is important to note here that use of the term
``separate process'' would have been much broader; by
specifying ``independent process'', the defendant has made
it trivially easy to make any top- level window not fall within the
definition of ``Top-Level Window'' simply by starting the
middleware product as a ``child'' process.
The second requirement also leaves huge amounts of room for
avoidance of any requirement to permit users access to competitor
products. One easy way to circumvent the requirement is to add a
single user interface element which is available when the product is
launched from the Start menu, but not when it is launched from the
Microsoft Middleware Product. This element could be an element
entirely inconsequential to the operation of the Microsoft
Middleware Product, such as a trivial status bar, an extra line of
text somewhere, an extra menu element, an extra toolbar or toolbar
icon, etc.; in fact it could be a single user interface element
added solely to the version launched from the ``Start''
menu for the purpose of making it different than the one launched
from the Microsoft Middleware Product (and of course this element
could be added after the functional and user interface design of the
product has otherwise been totally completed).
Of course, it is also trivially easy for the defendant to avoid
being caught in subsection (ii) of Section III.J.2. In particular,
the definition of the term ``Trademarked'' specifies that:
We start from the premise that adequate relief in a
monopolization case should put an end to the combination and deprive
the defendants of any of the benefits of the illegal conduct, and
break up or render impotent the monopoly power found to be in
violation of the Act. That is the teaching of our cases, notably
Schine Theatres v. United States, 334 U.S. 110, 128-;129.
Any product distributed under descriptive or generic terms or a
name comprised of the Microsoft?? or Windows?? trademarks together
with descriptive or generic terms shall not be Trademarked as that
term is used in this Final Judgment. Accordingly, the defendant
could describe its media player as the ``Microsoft Media
Player'', or its messenger as the ``Microsoft
Messenger'', or its calendar as the ``Microsoft
Calendar'', without being caught in subsection (ii). Obviously,
no competitor can similarly name its product, so to say such names
are not Trademarked defies all reason. In any event, the essence of
the argument is that, if the defendant expends just a little bit of
effort and (possibly) imagination, Section III.J.2 will not curtail
the defendant from eliminating user choice as to the Middleware
Product launched by any Microsoft Operating System Product.
Similarly, Section III.J.3 does not specify that the user's consent
be voluntary (e.g., the consent may be provided as part of a larger
question), that the presentation of the request for the consent be
non-discriminatory and fair to all products, or that the defendant
may only request a switch once, so that it cannot prevail over its
competitors by virtue of sheer harassment (such as popping up a
dialog every time a Middleware Product is launched or even every
time a feature of a Middleware Product is used). Even the time
language in provision b) of that Section is a huge loophole, as it
is commonplace for OEMs to do the ``initial boot up''
before shipping a PC and hence the 14-day period could have largely
or completely expired by the time a user boots up the PC for the
first time.
Another example of loophole language from the definitions
relates to the term ``ISV''. The term is defined in terms
of an ``entity'', rather than the traditional
``person'' or ``person or entity'', thereby
preventing Open Source developers from falling within the
protections afforded to ISVs. From a competitive standpoint, there
is no reason for the government to favor an incorporeal entity over
a human developer, and accordingly this definition is unreasonable
and against the public interest. No Restitution or Penalties The
evidence, upon which the defendant was adjudged guilty of
essentially felonious conduct, was mainly based on events of the
mid-late 1990%. Since the commencement of this litigation, the
defendant's behavior has in the KDE League's opinion become
substantially more unlawful and egregious, the whole time right
under the government's nose.
Under the Proposal, the punishment for conduct which all judges
to hear evidence have uniformly ruled is unlawful appears to be
absolutely nothing; even the most generous read of the Proposal
would have to conclude that at most it aims to prevent the defendant
from engaging in (some) further unlawful conduct.
In fact, no restitution or compensation to the corporate,
developer or consumer victims of its legion abuses is contemplated.
Not even an injunction against the defendant's recent announcement
that it will stop providing security patches for older versions of
its product line (which would be similar to a car manufacturer not
fixing a serious safety violation and an act which a non-monopolist
could hardly get away with), forcing everybody to
``upgrade'' to the much-more- expensive but in many cases
much-less-desirable Windows XP/2000 series. Apparently, the
government is quite content that the defendant keep the billions in
profit it unlawfully bilked from American consumers and businesses.
Moreover, the government's failure to address the defendant's
ever-more- egregious conduct provides the public with no confidence
that the government would act to enforce the ``slap-on-the-
wrist'' restrictions contained in the Proposal. Accordingly, it
is imperative for the public interest that any settlement provide
remedies for private litigants to enforce their rights under the
federal antitrust laws without having to mount a full attack and
prevail over the defendant on the core issues of monopolization and
abuse of monopoly power.
Patent Abuse
The threat of the defendant using patents to destroy Open Source
interoperability with the defendant's technologies is a major
obstacle to consumer choice and a competitive marketplace. The
defendant is building up a large reservoir of patents, assisted by
the USPTO's abysmal software patent review strategy. Even a patent
which might be obviously invalid, for lack of
[[Page 28440]]
novelty or otherwise, would be extremely difficult for an Open
Source project to overcome, as the defendant has a huge hoard of
resources to throw at Open Source developers who would in almost all
cases lack the resources to respond, let alone prevail.
Just to pick one example of an absurdly broad patent which the
defendant could use as a sword to maintain its monopoly was recently
issued. See United States Patent 6,330,670 (Dec. 11, 2001). Claim 1
of this patent is for: A computerized method for a digital rights
management operating system comprising: assuming a trusted identity;
executing a trusted application; loading rights-managed data into
memory for access by the trusted application; and protecting the
rights-managed data from access by an untrusted program while the
trusted application is executing.
This really is something that must be extremely obvious to even
a non-computer scientist. It's the equivalent to getting a patent on
the following ``process'', employed by a security guard at
a top-secret facility: A method for workplace security comprising:
assuming a trusted employer; relying on trusted equipment;
permitting the protected employee onto the premises; and protecting
the premises from access by an untrusted person while the trusted
person is working.
While this sounds like a joke, it is actually more sophisticated
than this most obvious ``patent'' the defendant has
obtained. Unfortunately, an Open Source project like KDE would find
it veritably impossible to have such a patent overturned in court
should the defendant elect to try to enforce it. Even more
unfortunately, the Proposal does not place any restrictions or
circumstances on the defendant--;such as its status as an
abusive monopolist--; which might assist its competitors fight
such an attack in a legal forum.
Conclusion
In conclusion, the KDE League would like to reiterate its firm
opposition to the Proposal. The Proposal does nothing to assist a
great many competitors in competing with the defendant, even in
markets which the defendant has demonstrably conquered using
unlawful methods. And it does nothing to prevent the defendant from
unlawfully abusing its most viable competitors, not even a small leg
up in pursuing justice in a court of law.
MTC-00028789
From: Brian Gault
To: Microsoft ATR
Date: 1/28/02 5:43pm
Subject: Microsoft Settlement
Judge Kollar-Kotally:
Not that I am aware of all the issues of law involved here, but
it seems to me that Microsoft is in violation of our country's anti-
trust laws. As a citizen of this country, I urge you to find against
Microsoft in this case.
Brian C. Gault
507 Lindale Drive
Clinton, MS 39056
601-;925-;0212
MTC-00028790
From: Michael Foley
To: Microsoft ATR
Date: 1/28/02 5:44pm
Subject: Microsoft Settlement
Dear Sir or Madam:
It is my belief that the antitrust suit against Microsoft
Corporation is the height of government abuse of a great company. It
is the direct result of requests by Microsoft's competitors and
their political connections (i.e. Novell and Senator Orin Hatch) to
level the playing field.
Microsoft is a great company. I have been using their products
since the late seventies and I have always received value for my
money. Sure, some of their software has a few bugs, but it's still
the best available. Microsoft will work on a product until it is the
very best available. They created the microcomputer revolution when
they introduced Windows 3.0 in the early 90?s. The interface was
easy to use and understand, and helped computers to become common
fixtures in American homes and small businesses.
Microsoft increased the size of the American economic pie for
all of us. Bill Clinton didn't create the robust economy of the
1990's, Microsoft, Intel, Cisco, and other aggressive and innovative
companies did. How does the American judicial system repay the
genius and hard work provided by Microsoft over the last 25 or so
years. It attempts to break-up one of the most successful companies
in American history.
Who was damaged other than Microsoft? Did any consumers complain
about the products they purchased? Why were the states allowed to
join the suite--;---; just how were the states damaged. It
all appears to be one big illegal feeding frenzy similar to the
tobacco suits. It is shameful.
I strongly believe that this suite against Microsoft ignited the
collapse of tech markets in late 1999 and 2000 which sucked billions
of dollars of wealth out of the American economy. I think the
Clinton Justice Department and Judge P. Jackson should be fined and/
or jailed over this extreme abuse of judicial power.
This judgment was bought and paid for by Microsoft's
competitors!
Very truly yours,
Michael E. Foley
2320 State Route 73 West
Wilmington, Ohio 45177
MTC-00028791
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:38pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Sharon Rondeau
388 Spring Street
Manchester, CT 06040-;6738
MTC-00028792
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:41pm
Subject: Microsoft Settlement
CC:
[email protected]@inetgw
This letter is intended as public comment, as provided for by
the Tunney Act, on the proposed settlement in United States vs.
Microsoft. The proposed settlement should not be accepted for the
following reasons:
--;The proposed settlement does not provide an adequate
remedy for Microsoft's abuses of its monopoly position.
--;Rather than increasing competition, the proposed
settlement appears to be specifically tailored to discourage certain
kinds of competition against Microsoft
--;The proposed settlement fails to redress the harm done by
Microsoft's illegal abuses of its monopoly position.
--;The proposed settlement is likely to strengthen
Microsoft's position in the marketplace, thereby worsening the
situation for consumers caused by a lack of competition.
--;The proposed settlement encourages Microsoft to use its
monopoly position in the desktop market to obtain monopolies or
drastically increase its market share in other markets.
1. The proposed settlement does not provide an adequate remedy
for Microsoft's abuses of its monopoly position.
The proposed settlement specifies several prohibitions and
limitations on Microsoft's future behavior. However for the most
part these limitations are narrowly tailored to provide remedies for
specific features of the Government's complaint of May 1998. Market
conditions have changed drastically since that time, due in large
part to illegal anticompetitive practices by Microsoft.. There are
no longer any credible competitors to Microsoft in the market for
desktop operating systems for Intel-compatible personal computers.
Microsoft's Internet Explorer has largely succeeded in displacing
Netscape's web browser and other web browsers. And while Java has
proven to be a very useful programming language in many respects,
Java's run-time environment has not become a ``virtual
operating system'' which could support the same applications on
a variety of computing platforms, and which could thereby threaten
its monopoly on the desktop. These developments were significantly
furthered by Microsoft's anticompetitive actions both before and
after the government's complaint was filed.
Conditions in these markets change so quickly that the problems
caused by Microsoft's monopoly simply cannot be
[[Page 28441]]
addressed after-the-fact, or by specific prohibitions on Microsoft's
future behavior that are narrowly tailored to constrain its previous
behavior. Furthermore, previous settlements of this type have proven
to be ineffective at curbing Microsoft's abusive practices.
2. Rather than increasing competition, the proposed settlement
appears to be specifically tailored to discourage certain kinds of
competition against Microsoft
The proposed settlement is also inadequate because it appears to
be specifically tailored to discourage certain kinds of
competition--;in particular, efforts by both commercial and
noncommercial parties to make alternatives to Microsoft's products
freely available to the public. For instance:
--;The settlement prohibits Microsoft from retaliating
against OEMs for shipping a personal computer which includes both a
Microsoft operating system and a non-Microsoft operating system, but
it does not prohibit retaliating against an OEM for shipping a
personal computer which does not include an operating system, or
which includes only a competing operating system.
Computer purchasers who intend to use alternative operating
systems (which are often superior to Microsoft's products for
certain purposes as well as being available at no cost) are often
forced to purchase a copy of a Microsoft operating system, which
they never use, with each new computer purchase. Microsoft has
effectively managed to impose a ``tax'' on the sale of
most new personal computer systems (particularly
``laptop'' computer systems). The proposed settlement does
nothing to redress that problem.
--;The provision of the settlement requiring Microsoft to
disclose APIs and related documentation, presumably via the
Microsoft Developer Network (MSDN), allows Microsoft to impose
nearly arbitrary conditions on the use of that information, to
prevent potential competitors from using that information to produce
products that compete with Microsoft operating systems and
middleware.
In addition, in the past such documentation as has been provided
by Microsoft via MSDN has often proven insufficiently detailed to
allow other parties to write equivalent interfaces.
Finally, nothing in this proposed settlement prevents Microsoft
from shipping APIs which provide undocumented features, and
documenting and using those features at a later time. This would
make its competitors'' deployed operating system and middleware
products incompatible with programs written to the latter API
specification.
Because of these flaws, this provision is unlikely to be
effective at furthering competition.
The provision which requires Microsoft to document
communications protocols applies to ``client computer[s]''
only. Presumably this requires only that Microsoft document the
``client'' side of such protocols, allowing Microsoft to
hold more closely the documentation of the ``server'' side
of a protocol, and allowing Microsoft a competitive advantage over
providers of servers which communicate with those
clients--;particularly those using ``open source''
server platforms such as Linux which have provided significant
competition to Microsoft products in the server market.
The provision which allows Microsoft to use Microsoft middleware
in preference to a competitor's middleware when the competitor's
middleware ``fails to implement a reasonable technical
requirement (e.g. the requirement to be able to host a particular
ActiveX control)'' effectively gives Microsoft license to
bypass competitors'' middleware at will, by declaring as part
of the settlement that addition of any ActiveX control to a
middleware interface is inherently a reasonable technical
requirement. For the settlement to be effective, Microsoft cannot be
allowed to change its programming interfaces at will.
The requirement to Microsoft to license intellectual property
rights ``on reasonable and nondiscriminatory terms'' that
are needed to exercise options under the agreement, because of
presumptions on what is ``reasonable'', effectively allows
Microsoft to set the bar on access to such information high enough
to exclude ``open source'' and noncommercial competitors.
--;Similarly, the provision which allows Microsoft to
require that the licensee of any of its intellectual property have a
``reasonable business need'' would likely allow Microsoft
to exclude noncommercial competitors. The fact that the only
significant competition to Microsoft in many markets comes from
noncommercial parties makes a presumed requirement of
``reasonable business need'' for access to such
information inherently favorable to Microsoft and unreasonable as
part of a remedy.
2. The proposed settlement fails to redress the harm done by
Microsoft's illegal abuses of its monopoly position.
Due in large part to Microsoft's illegal anticompetitive
practices, Microsoft has obtained a monopoly in several markets,
including desktop operating systems, web browsers, and office
productivity software. The harm done is a considerably more than to
limit consumer choice, stifle innovation, and artificially inflate
prices.
Microsoft's monopoly has also forced consumers to accept
operating system and networking software which are dangerously
insecure and have been compromised on numerous occasions by computer
viruses. Many of these vulnerabilities are a direct result of
Microsoft decisions to:
Disregard Internet standards for the labeling of content
transmitted over the network, thereby bypassing the requirement for
security review that was designed into that mechanism. This was done
in order to allow arbitrary content to be interpreted by
applications on Microsoft operating systems, and to provide
Microsoft with an advantage over competitors'' operating
systems that used other means to label content.
Provide a means for their document formats to contain executable
content with the ability to perform any function available to any
application on the host computer--;including the ability to
delete and alter arbitrary files and the ability to send network
traffic impersonating the computer's owner--;in order to give
Microsoft applications an advantage over competitors''
products.
--;Impose weak means of authenticating users over a network,
for the sake of backward compatibility with Microsoft products.
Even if a settlement provided an effective curb on Microsoft's
future behavior, to be acceptable it would also need to redress the
considerable harm done by past abuses. Injured parties include not
only purchasers of Microsoft software (and computers which were
supplied with Microsoft software) but also the numerous institutions
who have suffered damage due to such vulnerabilities, and operators
of public and private Internet networks whose operations have been
harmed by the traffic generated by viruses transmitted by Microsoft
software.
To be effective, a remedy would need to redress these injuries
without further strengthening Microsoft's position in the market.
3. The proposed settlement is likely to strengthen Microsoft's
position in the marketplace, thereby worsening the situation for
consumers caused by a lack of competition.
By imposing essentially no penalties on Microsoft and few
limitations on its behavior, the proposed settlement would signal to
Microsoft and its competitors that anticompetitive behavior is
largely ``safe''. The proposed settlement would also
provide Microsoft with the means to discourage certain kinds of
competition, particularly ``open source'' or noncommercial
products, allowing it to further limit consumer choice.
4. The proposed settlement encourages Microsoft to use its
monopoly position in the desktop market to obtain monopolies or
drastically increase its market share in other markets.
By focusing largely on the desktop or client market, the
settlement ignores Microsoft's ongoing efforts to leverage its
existing monopolies to obtain monopolies in other markets.
Furthermore, because different kinds of computers communicate with
one another over a network, Microsoft's monopoly on desktop
operating system software can be a powerful coercive force over
other markets--;for instance, media players and mechanisms for
protecting intellectual property transmitted over a network.
There is no significant difference between the tactics that
Microsoft used to take over the operating system, web browser, and
office productivity software markets, and the tactics that Microsoft
is currently using to attempt to establish control over other
markets.
Any remedy which allows Microsoft to use its control over the
desktop to favor its own solutions in any way cannot be considered
adequate. For the reasons stated above, I recommend that the Court
reject the proposed settlement.
An effective remedy would require
--;Microsoft to be pro-actively prevented from future abuse,
Competition to be re-introduced in the markets in which
Microsoft has a monopoly and which it has shown abusive behavior,
--;Compensation for injuries caused by Microsoft's
anticompetitive behavior It is
[[Page 28442]]
difficult to understand how such a remedy could be effected without
either:
--;Active government regulation of Microsoft's behavior, and
in particular affirmative prior approval of all new and revised
Microsoft products prior to release, and approval of contracts
between Microsoft and other parties before they become effective, or
--;Structural reorganization of Microsoft into two or more
competing entities and without significant financial compensation to
injured parties.
Keith Moore
MTC-00028793
From: Steve Bonfoey
To: Microsoft ATR
Date: 1/28/02 6:09pm
Subject: Microsoft Settlement
Gentlemen:
Microsoft has done nothing but benefit consumers. State attorney
generals pursuing politics-as-usual and Microsoft's competitors have
used the law to punish a good competitor. Microsoft deserves to win
this case. If their competitors and the politicians win it will
forever damage the economy of the United States.
Steve Bonfoey
4620 W. Hetherwood
Peoria, Illinois 61615
309-;692-;6272
MTC-00028794
From: Dave
To: Microsoft ATR
Date: 1/28/02 5:37pm
Subject: Settlement
If Microsoft get off with a slap on the wrist as it look like
they will it proves that money talks and B--;S--;Walks.
MTC-00028795
From: Angela McQuillen
To: Microsoft ATR
Date: 1/28/02 5:42pm
file:///C/win/temp/tmp.l.
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft: I have always been proud to be an American,
not just because this is the place of my birth, but because I have
always known that this nation was unlike any other in the world. We
are blessed to be citizens of a country where we have the privilege
to live life the way we choose. This is the legacy that was left to
us by our forefathers, and this is what we should pass on to our
children. I believe the antitrust suit against Microsoft, and other
cases like it, compromises the very foundation upon which this
nation was built. If litigation like this is continued, this nation
will become a shell of its former self, and the glory that is
America will be nothing but a memory.
This suit was nothing more than an attempt by the Clinton
administration to socialize American business. Our forefathers did
not build a nation on the ideals of Socialism. This nation did not
become the sole world superpower in a mere 200 years of existence
because we allowed socialism to thrive in America; rather we are a
nation built upon and made strong by our capitalist roots and our
belief in free enterprise. It is the dream of every American to
exceed the success of their father and grandfather, to go from rags
to riches with nothing more than hard work, perseverance, and an
unshakeable belief in America. This suit flies in the face of this
dream.
Microsoft is the very embodiment of the American dream. This
company started in a garage and twenty years later it is one of
America's greatest corporate assets. This litigation sends the
message to all future American entrepreneurs that it is okay to
become successful, but only to a point, because too much success is
forbidden. I am in favor of the settlement that was reached in this
case in early November, not because it is a fair settlement, but
because it will finally bring an end to this protracted litigation.
The issue in this case is no longer whether Microsoft committed
antitrust violations. I personally believe that it did. If that were
the issue, they would have been reprimanded and sent on their way a
better, more responsible business leader. The issue of this case is
whether or not we, as Americans, have the right to engage in free
trade, and whether or not capitalism has a place in the twenty-first
century. I say that without this right the future of America is
bleak. This is probably one of the most important decisions that has
ever faced this nation, and it rests on your shoulders, so you had
better choose wisely. Thank you for your time and consideration of
this issue. I trust you will make the right choice.
Sincerely,
Angie McQuillen MSN Photos is the easiest way to share and print
your photos: Click Here
Angie McQuillen
MTC-00028796
From: Tom Wolf
To: Microsoft ATR
Date: 1/28/02 5:43pm
Subject: Microsoft Settlement
To whom it may concern,
I want to voice my objections to the announced settlement
between the US and Microsoft. It seems to be lost on those involved
on the US side that Microsoft broke a consent decree on browsers to
get in this mess in the first place. This company has demonstrated
contempt for honesty and for the American business community, not to
mention the legal process. In short they cannot be trusted to hold
up their end of this extremely weak and ineffectual settlement. This
settlement is bad for consumers and US business in general. The
settlement is transparently politically motivated and completely
undermines any credibility the Bush administration had. I urge you
to reject the settlement and vigorously pursue the just prosecution
of the case to save countless US businesses and preserve innovation
in the market.
Regards, Tom Wolf, President,
Ascend Public Relations
206-;903-;1730
206-;903-;1732 fax
206-;850-;3095 cell
866-;903-;1730 toll free
[email protected]
MTC-00028797
From: Brian Seguin
To: Microsoft ATR
Date: 1/28/02 5:43pm
Subject: Microsoft Lawsuit
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
I believe that the lawsuit against Microsoft by Joel Klein and
the Clinton Administration has been a complete waste of time and
taxpayers money. Microsoft made computing possible for the
individual and small businesses at a reasonable cost. The consumer
has benefited from Microsoft products. Attached is my letter to Mr.
Ashcroft requesting that this lawsuit be settled under the terms
agreed on between the Department of Justice and Microsoft.
Brian P. Seguin, P.E., P.L.S.
Project Engineer
Reid Middleton Inc.
Phone: (425) 741-;3800
Fax: (425) 741-;3900
[email protected]
3622 99th Street Southeast
Everett, WA 98208
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The antitrust lawsuit brought against Microsoft was unjustified
and flawed. The dispute in my opinion arose due to
competitors'' envy for their own lack of innovation and
creativity. Microsoft has been the leading innovator of technology
for over a decade. In the 80's when we lagged behind Japan in many
industries, Microsoft developed a product that streamlined and made
more effective many of our businesses. The company I worked for is a
perfect example as it was able to use Microsoft software for its
businesses.
The terms of the settlement are harsh and seem to reflect the
intense lobbying of Microsoft's competitors. Forcing Microsoft to
give up internal interfaces and protocols, making them agree not to
retaliate against other vendors, stipulating that they must grant
computer makers broad new rights to configure Windows so as to make
it easier for non-Microsoft products to be prompted, the settlement
also reflects lawmakers and politicians lack of concern for the
public. This settlement only aims at giving competition an edge they
did not have and could not attain on their own.
Even though I think the settlement is unfair, I must support it
because the alternative of further litigation would be too much for
our weak economy. I urge your office to take a firm stance against
the opposition and stop any further disputes.
Thank you.
Sincerely,
Brian P. Seguin
Professional Land Surveyor
Professional Engineer
MTC-00028798
From: Ernest Paul Webber
[[Page 28443]]
To: Microsoft ATR
Date: 1/28/02 5:43pm
Subject: Microsoft Settlement
Dear Sirs:
As I see it, you have established as a finding of fact that
Microsoft has broken the law. Microsoft is quite apparently lacking
in repentance and assured that it can evade justice. Your
responsibility is to insure that Microsoft --;cannot--;
continue to break the law. Microsoft has made it clear that it does
not understand the crimes it is guilty of, nor does it intend to
learn how or why it should change its own behavior, other than as a
response to your judgment, and its desire to avoid substantial pain
suffered as a result. Please do whatever it takes to stop these
guys!
Sincerely,
Ernest Paul Webber
1808 Anacortes Ave NE
Renton, WA 98059
MTC-00028799
From: jjoseph
To: Microsoft ATR
Date: 1/28/02 5:45pm
Subject: Microsoft Agreement
Dear Attorney General Ashcroft:
Attached please find my letter in favor of the Microsoft
Antitrust Agreement.
Thank you.
Sincerely,
John E. Joseph
6618 Manila Road
Goshen, OH 45122-;9403
513-;625-;1745
CC:
[email protected]@
inetgw
6618 Manila Road
Goshen, OH 45122-;9403
(513) 625-;1745
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
January 26, 2002
Dear Mr. Ashcroft:
The Tunney Act mandates that there be a 60-day public comment
period that follows a settlement to an antitrust case when the
Department of Justice is involved. The final decision on the
proposed settlement is made after this period of review. I would
like to go on record as supporting the settlement that was made
between Microsoft and the Department of Justice.
I feel that Microsoft is actually being punished for being good
at what they do. There is no reason why the federal government had
to get involved in this issue in the first place, but since they
did, I am glad to see that the dispute has finally been resolved.
Microsoft actually has to concede more than they would have liked,
but since the lawsuit is over and the economy needs all the help it
can get, they agreed to the terms. One of the terms, which seem
ridiculous, is the disclosure of Windows'' internal interfaces
and other operating technology that Microsoft worked long and hard
to develop.
This seems to violate intellectual property rights.
I enjoy the fact that my opinion will go on record, and again, I
support the settlement reached between Microsoft and the Department
of Justice.
Sincerely,
John Joseph
MTC-00028800
From: The Babcock Design Studios
To: Microsoft ATR
Date: 1/28/02 5:45pm
Subject: Microsoft Settlement
Honorable Judge Coleen Kollar-Kotelly, In December of 2001 I
have purchased new computer with Microsoft XP, Home Edition program
installed. I wanted to upgrade the program to Microsoft XP
Professional version. There was no upgrade available. I had to
purchase new Microsoft XP Professional version at full price ($300).
In above mentioned case I do not consider Microsoft policy either
competative or fair.
Sincerely,
Dushan D. Hrovat --;
MTC-00028801
From: Dr. W. Curtiss Priest
To: Microsoft ATR,W. Curtiss Priest
Date: 1/28/02 5:44pm
Subject: Proposed Microsoft settlement: woefully insufficient
Dear Justice Department,
As a software innovator and holder of several software patents,
I have first hand knowledge of how extremely brutal, unfair and
bullying Microsoft is to others in the industry. I was involved for
five years in negotiation, arbitration and potential legal action
against Microsoft which only caused Microsoft to spend incredible
resources to deny me and Humanic Systems any just and due
compensation for our innovative work.
In my opinion, as President of Humanic Systems, a company that
was (above) abused by Microsoft regarding our intellectual property
for significant components of Microsoft Outlook, the proposed remedy
is extremely inadequate:
1. It does not provide substantial redress for the prior losses
caused by MS on others
2. Secrecy provisions undermind the ability to obtain API
information and will systematically be used by MS, in my opinion, to
continue its monopoly stranglehold
3. There are no structural remedies, and, without those, the
``fascist'' mindset of Ballmer and Gates will continue to
dominate the thinking of each and every employee
4. Microsoft's stated opinions about various forms of open
software, being a ``cancer'' undermines the ability for
consumers to get the maximum benefit for the least cost This
position, alone, demonstrates that they want ``all the
marbles'' and it is a ``winner take all'' game
Consider, for example, a PBS documentary about extreme competition
as taught within the Gates family as Mr. Gates grew up This person
does not know the word cooperation, and, without extremely directive
measures, will never show cooperation to the rest of the software
industry that is slowly dying under his ruthless hand.
Very truly yours,
Dr. W. Curtiss Priest
President, Humanic Systems
Director, Center for Information, Technology & Society
Member, American Economics Association
Prior, Principal Research Associate, MIT
Author,_Technological Innovation for a Dynamic
Economy_,1980 (Pergamon Press)
_Risks, Concerns and Social Legislation_,1988
(Westview Press)
W. Curtiss Priest, Director, CITS
Center for Information, Technology & Society
466 Pleasant St., Melrose, MA 02176
Voice: 617-;662-;4044 [email protected]
Fax: 617-;662-;6882 WWW: http://www.eff.org/pub/
Groups/CITS
MTC-00028802
From: Chuck Peper
To: Microsoft ATR
Date: 1/28/02 5:45pm
Subject: Microsoft Settlement
As a professional software developer, I find the governments
proposed settlement with MS a joke. MS was clearly found to be a
monopoly and anti competitive but the government has essentially
taken no punitive action. What is even more disquieting is MS
continues its illegal activity on a daily basis. It's new products
and development languages (.Net) are anti competitive to other
database manufacturers. They are using the same tactics over and
over.
Splitting MS into OS and application companies is the only
solution.
MTC-00028803
From: Michael Sharp
To: Microsoft ATR
Date: 1/28/02 5:47pm
Subject: Microsoft Settlement
Please find attached my comments with regards to the Microsoft
Settlement
<>
Regards
Michael Sharp
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
The purpose of this letter is to express my support of the
Microsoft settlement in the federal antitrust case. As a Microsoft
supporter, I have followed the case against Microsoft with much
interest. I do not believe that the federal case is justified in the
first place, yet I welcome any resolution that the enactment of this
settlement will bring. Thus, I urge the Department of Justice to
enact the settlement at the end of January.
In addition, the concessions made by Microsoft through this
mediation process are extensive. Microsoft will now license Windows
at the same rate to all computer makers, disclose the internal
protocols of Windows to competitors, and redesign Windows XP to
provide for easy replacement of parts of it by competing software.
Enough is enough. I do not believe that Microsoft could do much more
in this dispute, and has been punished enough through the
concessions it has already made.
Please enact the settlement reached in November and end this
issue once and for all.
Sincerely,
Michael Sharp
[[Page 28444]]
MTC-00028803_0002
MTC-00028804
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:49pm
Subject: Microsoft Settlement
I feel the Court should approve the proposed settllement in the
Microsoft antitrust case. I think the complaints against Microsoft
have been more than adequately addressed by the proposed settlement
agreement and I support the recent efforts to bring this case to a
rapid conclusion. Thank you for your attention to this important
matter. Larry Neustadt
MTC-00028806
From: Damon Miller
To: Microsoft ATR
Date: 1/28/02 5:49pm
Subject: Microsoft Settlement
http://www.kegel.com/remedy/remedy2.html
This sums it up quite nicely. Please release humanity from the
stifling monarchy that Microsoft has created. ``Freedom to
Innovate''? Not quite, Bill; ``Freedom to desecrate''
is closer to the truth, but still not quite there.
The effect Microsoft has had on the computer industry is
disgusting. Bill Gates and his money have systematically destroyed
everything the industry stood for, and all of the individuals on
whose shoulders it stands. Bush sold millions of peoples''
ideals right down the river on this one, and something needs to be
done. Please be strong enough to stand up to Microsoft, finally
ending their blatant laughter in the face of human liberties
everywhere. Too dramatic, you say? Think again. Take a look at what
this company has truly done TO humanity, and ask yourself if that
statement is untrue.
Sincerely,
Damon Miller
(An individual trying to breathe under Microsoft's despotic
tyranny)
MTC-00028807
From: Bill Humke
To: Microsoft ATR
Date: 1/28/02 5:53pm
Subject: Microsoft Settlement
I urge you to settle this case on what is now before the Court.
Too much time and money have been spent upon this case to date.
Let's get it behind us so this Company can get onto productive
activates, and thus produce profits and positive cash flows so that
additional technical developments and innovations can be advanced.
This will then aid all of us in increasing our productivity, thus
producing additional profits upon which we will have to pay
additional taxes--;again help all.
Respectfully,
Bill Humke
[email protected]
MTC-00028808
From: Ann smith
To: Microsoft ATR
Date: 1/28/02 5:49pm
Subject: Fw: microsoft settlement
--;--;--;--;- Forwarded message
--;--;--;--;--;
From: Ann smith
To: [email protected]
Cc: [email protected]
Date: Mon, 28 Jan 2002 16:29:19 -0500
Subject: microsoft settlement
Message-ID: <20020128.162921.-
[email protected]> states sueing
microsoft as well as aol using netscape to get money from microsoft
thru the courts is wrong. microsoft is being bullied by the
goverment and stockholders have lost money because of this court
action. it also does not let microsoft give all the attention it
needs to fight the hackers and make the internet safe for all users
including aol.
The reason we are so interested in Microsoft Programs is that
children all over the world are benefiting by Microsoft
products,games and all sorts of programs as an educational tool. I'm
so pleased when I see my 4 year old granddaughter open the computer
and do what she wants to do. She spends hours doing games and
playing her videos, instead of watching T.V all the time. We have
eight babies we encourage to learn all they can by buying programs
for them at Birthdays and just for fun.
We the elderly have fun also and we invest money into the future
of Microsoft and other companies for the future.
CC:[email protected]/
renatahesse@inetgw
MTC-00028809
From: Robert Smith
To: Microsoft ATR
Date: 1/28/02 5:50pm
Subject: Microsoft
Please see the attached letter.
Thank you!
Robert R. Smith
Smith-Krenning Enterprises, LLC
[email protected]
CC:[email protected]@inetgw
MTC-00028810
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:51pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
It is time to close the doors on the Microsoft antitrust case.
We (USA) must think of the globe market place. Microsoft produces
products that all sold worldwide. We should let Microsoft get back
100% to their real business. I think we should allow the company to
go back and work 100% of their time and money on producing new and
improved products.
Mary Ann Dieckman
P.O. Box 210113
Auke Bay, AK 99821
Occupation Transportation Planner,
MTC-00028811
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 5:51pm
Subject: Microsoft Settlement
I oppose the Microsoft settlement. It is bad for the computing
profession and bad for long term economic development. I have been a
software professional since 1973, and in my personal experience the
dominance of Microsoft has had a negative impact on quality and
innovation in the software industry. The settlement does not address
the practices that have kept Microsoft in power. A continuation of
the Microsoft monopoly will only reduce the growth and future
utility of the software industry, and keep the general public from
reaping the rewards of continued innovation in this relatively young
field.
Mitch Wade
MTC-00028812
From: Alyne
To: Microsoft ATR
Date: 1/28/02 5:52pm
Subject: Microsoft Settlement
CC:
January 28,2002
Attorney General John Ashcroft US Department of Justice
950 Pennsylvania A venue, NW Washington, DC 20530
Dear Mr. Ashcroft:
Over the past three years I have watched the Department of
Justices'' aggressive attack on Microsoft. I am so pleased to
see that this unwarranted and unsubstantiated antitrust assault on
Microsoft coming to close, provided that the government has the
foresight to see the beneficial impact from Microsoft's settlement.
The settlement allows for new Windows configurations, giving
computer makes and developers greater flexibility in offering non-
Microsoft software programs. This will provide consumers with the
option to remove and/or reconfigure any part of Windows. This gives
the consumer the decision of what they like to use, and don't want
to keep. Consumers drive the markets; they decide what it is that
makes a company fail or succeed.
Microsoft has successfully proven, time after time, by creating
and updating their innovative products, where nothing else compares.
This settlement is the right thing to do, for Microsoft, the public
interest, the tech industry, the economy, and all of which is vested
in consumer purchasing. Keeping Microsoft out of more entangled
legal matters, will definitively promote more responsible business
decisions from Microsoft right down the line to the customer. Please
don't continue this absurd mess of litigious behavior with
Microsoft. It is a waste of time and does not serve the best
interest of the public good.
MTC-00028813
From: harry emlet
To: Microsoft ATR
Date: 1/28/02 5:52pm
Subject: Microsoft Settlement
The Department of Justice should hold to the revised proposed
Final Judgment to which Microsoft has tentatively agreed and reject
the requests for other and further remedies requested by the states
continuing to oppose the judgment.
I am dismayed at the persistence intemperate misrepresentations
by those
[[Page 28445]]
several key industry leaders who so ardently seek to diminish the
dominant role of Microsoft and if possible replace it. They piously
attribute their efforts to their interest in the welfare of the
consumer, when in fact it is the average consumer, individual and
corporate, who would suffer most should Microsoft be greatly
diminished or (in the inevitably lengthy interim) should Microsoft
be eventually replaced. They also claim that Microsoft makes it more
difficult for entrepreneurs to develop and market innovative
products when in fact the opposite is true and their real problem is
that they seek the dominance that Microsoft now has and cannot keep
up with the innovative pace of Microsoft's continuing evolution of
its products. The challengers make these representations directly
and through the Attorney Generals of selected states.
The claim of harm to Netscape, for example, is particularly
false. Netscape deliberately configured its browser so that when it
was used within Windows as part of non-Microsoft application
software it would immediately take over all web browser functions.
(I personally was so irritated by repeatedly having to counter this
latter tactic that I finally gave up in disgust and removed Netscape
from my system along with the application that required it.) The
position of those pretending that Microsoft was the culprit in the
demise of Netscape blissfully ignores both the technological
character of the industry, the needs of the average individual and
corporate user, and the specific technical issues that are relevant
to the case and the remedy.
If the continued challenges to Microsoft prevail it will
seriously harm the consumer, will undermine the lead role which the
United States now holds throughout the world as a result of the
proliferation of Microsoft products worldwide, and will thereby
decrease the present ease of communication internationally made
possible by the software commonality that is a direct result of the
widespread proliferation of Microsoft products. The mantra that
increased competition at any cost is always better in the long run
is a na/win/temp/tmp.
To US Federal District Court and US DO J,
I am writing to express my support of the settlement reached by
Microsoft and the DOJ. I believe that the settlement will allow all
of the parties involved to move on to more productive endeavors.
Microsoft has been incredibly successful because it has created
products that consumers and businesses find useful. Arguably many
Microsoft's competitors that decry its behavior would not even exist
today had it not been for Microsoft's tireless efforts on behalf of
the personal computing industry.
Fil Alleva
Stockholder and Employee of Microsoft
Redmond, Washington.
MTC-00028822
From: kayandmitch
To: Microsoft ATR
Date: 1/28/02 5:59pm
Subject: Microsoft settlement
As a retired citizen of Washington state, I encourage you to
accept the proposed settlement in the anti-trust case involving
Microsoft. I am neither an employee nor a stockholder in this firm.
This settlement is appropriate and reflects a triumph of the
rule of law. Many critics, all with an axe to grind, i.e.
competitors and state attorneys-general, call for extreme, stringent
restrictions that are totally inappropriate.
These objections ignore the decision of the Appeals Court that
reversed much of Judge Jackson's original findings. Objectors not
only misstate facts, but deliberately misinter-pret the Appeals
Courts'' key findings.
In my view there can be no valid objection to this settlement
since every major finding of the Appeals Court is stringently
addressed with a targeted remedy that specifically prohibits and
prevents the conduct in question.
Acceptance of the proposed settlement will send a signal to
American industry managements and all thinking citizens that the
rule of law is still being enforced appropriately. Any- -thing
beyond this settlement would be a victory for those who seek damage
and destruction rather than a remedy;. for competitors, litigation
rather than innovative, honest competition.
Every person with the most rudimentary understanding of free
markets wants the law to protect the markets'' smooth
functioning. Can we depend on the fair application of the laws that
all participants in the U.S. economy rely on ? I hope your answer is
a resounding ``yes''.
Thank you for your consideration.
Harold G. Mitchell
1800 Skyline Way
Anacortes, WA 98221
MTC-00028823
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:00pm
Subject: Microsoft
325 North Broadway
Wind Gap, PA 18091-;1214
January 28, 2002
Attorney General John Ashcroft
United States Department of Justice
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I am writing you let you know that I am a staunch supporter of
Microsoft and I believe that the current lawsuit against the company
instigated by the federal government is wrong and perhaps even
counter-productive. Nevertheless, after three long, long years of
legal wrestling, the settlement reached in November should provide
the opportunity to put an end to this issue once and for all. For
that reason I urge that you work towards implementing this
settlement as soon as possible.
Under this settlement, Microsoft has agreed to design future
versions of the Windows operating system to provide a mechanism for
users, computer manufacturers and software developers to promote
non-Microsoft software applications. Additionally source codes and
interfaces internal to the Windows operating system and its products
will be freely available to Microsoft's competitors. This is only
the tip of the iceberg. As such, this settlement should more than
satisfy the Department of Justice, as well as competing companies.
It is time that we concentrate on more important matters facing
America. I ask that you work towards putting the November settlement
into action as soon as possible and without any more litigation.
Thank you.
Sincerely,
Dennis Cassidy
cc: Senator Rick Santorum
MTC-00028824
From: Mick McQuaid
To: Microsoft ATR
Date: 1/28/02 6:00pm
Subject: Public Comment on Microsoft Settlement
I am a university-based research scientist developing software
to reduce information overload. My sponsors include the US Army
Research Lab, which hopes my software will reduce information
overload for tactical commanders in battle, and the Ford
Foundation's Community Development Program, which hopes my software
will do the same for overworked, underpaid community development
workers.
In my research, I am a consumer of computer hardware and
software, as are my sponsors, their customers, and the students who
work in my lab. In my view, we are all harmed by Microsoft's
monopoly, and this harm is not addressed by the proposed settlement.
As a public university, and with government agencies and
charitable community foundations as our sponsors, we are acutely
aware of the need to save money. One way we believe we could
accomplish this is by using free operating systems such as Linux or
FreeBSD instead of Windows. We have been stymied in our efforts to
purchase computers with free operating systems or no operating
systems.
We found that purchasing a computer from a vendor, Gateway, with
no operating system cost just as much as to purchase it with Windows
and also led to a warranty problem where the computer was not
warranted to operate with any particular operating system. We were
warned by our vendor, Gateway, that we should have purchased our
computer with Windows, then installed a free operating system to
coexist with it. For any remedy to be effective, Windows should be
an extra-cost add-on to a basic Gateway computer that we purchase or
recommend to the military commanders and community development
workers who'll use our software.
A second source of harm to me as a consumer comes from
Microsoft's secret file formats. The only way my software can reduce
information overload for military commanders and community
development workers is if my software can read and write the file
formats for information with which these workers are inundated.
Other vendors and researchers publish their file formats. Microsoft
does not. I can not avoid using Microsoft file formats and must
spend extra money to try to keep up with changes to them. Through a
model called ``embrace and extend,'' Microsoft is able to
use its monopoly position to change file formats such as Rich Text
Format over time to reduce interoperability among customers and
competitors. Only a remedy that forces Microsoft to publish file
formats so that they cease to be a monopoly-strengthening tool can
provide effective relief for me as a consumer.
A third source of harm to me as a consumer concerns my ability
to use the World Wide Web without the requirement that I use
Microsoft products. I can not browse certain web pages nor conduct
transactions on certain websites because the authors of a free
operating system running on my computer do not have access to
Microsoft networking protocols. Fortunately, not every web site is
forbidden because I have chosen a free operating system, but more
sites are denied me every day. Two years ago, I believed that free
operating systems like Linux were the wave of the future. In the
past year, I have come to realize that Microsoft is working actively
to shut down free operating systems by making access to the Internet
more difficult for those who fail to access using current Microsoft
products. Only a remedy that forces Microsoft to publicly reveal
networking protocols such that users of free operating systems have
a chance to rewrite their software to visit websites and conduct
transactions.
To summarize, I have been harmed as a consumer by Microsoft's
monopoly. The proposed settlement does not offer me any relief from
that harm and I suggest in this message three requirements that
would have to be met to provide that relief: (1) make Microsoft
operating systems an extra-cost add-on to computers, (2) compell
Microsoft to publish file formats it uses to maintain and extend its
monopoly to the desktop, and (3) compell Microsoft to publish
networking standards it uses to maintain and extend its monopoly to
the Internet.
I have never written to comment on any such settlement before,
in part because I never been persuaded of the gravity of such a
situation. The proposed settlement shocks me as a consumer and I can
only explain it by taking into account the profound effect
[[Page 28449]]
that recent events have had on the DOJ mindset about what
constitutes the national interest. Possibly DOJ has become less
aggressive toward violators during a period of national mourning.
Now it is time for cooler heads to prevail and to demonstrate to the
public that our government considers the national interest to
include what is best for consumers, not merely what is best for
corporations. --;
Mick McQuaid, [email protected]
2721 East Fort Lowell Road
Tucson, AZ 85716
520-;975-;5157
MTC-00028825
From: Tommy Goddard
To: Microsoft ATR
Date: 1/28/02 5:56pm
Subject: Microsoft Settlement
Do you plan on dropping the millions of customers? What do plan
on doing about the fact that 99% of the government's computers are
run by MS? Now that AT&T is a government controlled company
their service sucks. I can see how making MS a government entity
would create so many issues for consumers and hurt our economy
worse.. Anything federally regulated and funded sucks. Have you ever
had a speeding ticket or tried to get a different phone company? MS
actually provides good support.
Tommy
Internet Developer
Sportwave, Inc. & Championship Tennistours, Inc.
``It's Tennis on the Net!''
EMail:
[email protected]
MTC-00028826
From: Keith Kemp
To: Microsoft ATR
Date: 1/28/02 6:01pm
Subject: Microsoft Settlement.
I think the deal that MS has offered is more than fair. Just get
off their back so that they can continue to be innovators instead of
being regulated allowing someone else to take their position as the
leader.
Keith
MTC-00028827
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:02pm
Subject: Settlement
17311 87th Avenue Court E
Puyallup, WA 98375
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am submitting the following comments for your review as
regards the Microsoft antitrust lawsuit. I am in favor of seeing
this case settled. From the lawsuit's inception, I have been
frustrated by the fact that Microsoft is being punished merely
because it has produced an outstanding operating system.
Despite my disagreement with the wisdom behind filing this suit,
in my opinion, the terms of the settlement agreement are fair. In
response to the allegation that Microsoft has engaged in unfair
business practices, Microsoft has agreed to give up many things.
Microsoft has agreed to disclose portions of its code to their
competitors. They have also submitted to making it easier for
consumers to change the configuration of Windows. This will allow
consumers to run programs made by Microsoft's competitors, while
using Windows. Additionally, Microsoft has agreed not to take
retaliatory actions against those who distribute or promote software
that competes with Windows. Fair competition will be restored as a
result of the concessions Microsoft has made. Nothing else should be
required of Microsoft beyond the terms of the settlement agreement.
Thank you.
Sincerely,
Linda Rogers
CC:[email protected]@
inetgw
MTC-00028828
From: kwhite
To: Microsoft ATR
Date: 1/28/02 6:02pm
Subject: Microsoft Settlement
The courts are punishing Microsoft, a winner and rewarding the
losers who have inferior products in my estimation. What is wrong
with winning? I don't see Be on every desktop and Oracle is so
expensive and cumbersome that only foolish bureaucracies run this
software. There are no gains for the general population which this
lawsuit pretends to ``protect''. Very clearly the courts
are protecting a very few major corporations and their interests,
not us little guys. And guess what ? should anyone be
surprised--;There are several technical references about
computer systems and software that are grievously incorrect in the
court documents.
Since when does any company have to get approval from the courts
to bring a product to market? Courts have to get out of the market
place. Let winners win, and losers lose. Get Bin Laden and others
like him. Get bad guys not a company like Microsoft whom we all
should be proud of. We should put a statue of Bill Gates right next
to the Abe Lincoln monument.
Our future is in our children. Any court settlement (not), if
there has to be one should benefit our kids.
Ken White
[email protected]
CC:[email protected]@in
etgw
MTC-00028829
From: Jack Burlingame
To: Microsoft ATR
Date: 1/28/02 6:03pm
Subject: Microsoft Settlement
To Whom It May Concern:
Please register my opposition to the proposed government
settlement with Microsoft. Despite the fact that I am a Microsoft
shareholder, I believe the company needs to be restrained in its
anti-competitive practices.
The case, in my opinion, goes well beyond the so-called
``browser wars.'' The list of companies that Microsoft has
harmed as it incorporates additional functions into its operating
system software is lengthy. To name just a few: Eudora--;email
program Adobe--;imaging program Symantec--;utilities
programs Ipswitch--;FTP program Real Networks--;multimedia
programs It is reasonable to ask what the ability to edit
photographs, for example, has to do with a computer operating
system. The only purpose for including such programs in Windows at
no charge is to drive competitors out of business. This represents
classic anti-competitive behavior that must be curtailed.
Sincerely,
Jack Burlingame
28-;B Old County Road
Hingham MA 02043
MTC-00028830
From: Leonard Shackelford
To: Microsoft ATR
Date: 1/28/02 6:02pm
Subject: Microsoft Settlement
I support any decision which will allow Microsoft to continue
business without any government intervention. Please leave Microsoft
alone!
Sincerely,
Leonard Shackelford
[email protected]
MTC-00028831
From: Gordie (038) Barbara Rydberg
To: Microsoft ATR
Date: 1/28/02 6:03pm
Subject: Microsoft Settlment
Attorney General John Aahcroft I encourage the United States
Justice Department to accept the recent anti-trust settlement it
reached with Microsoft. I'm for anything that will get the matter
behind us so Microsoft can get back to the business of making good
software. To open up the market and make it more competitive,
Microsoft has agreed to grant computer makers the right to change
Windows so that Microsoft product can be removed and competing, non-
Microsoft produts can be installed. This will allow small developing
software companies to get their feet in the door and compete on an
even level. This will also create a competitive environment that
will encourage all parties to improve their produts and services.
Microsoft has further agreed to not take any action that could be
perceived as retaliatory against those computer makers who choose to
do this, nor will Microsoft retaliate against computer makers who
develop or ship operating systems that compete with Windows. A
Technical Coommittee made up of three software experts will be
overseeing compliance and assisting in any dispute resolution. Based
on these facts, I encourage you to support this good settlement that
will benefit Microsoft, competitors, and most iimportantly,
consumers who buy these products.
Gordon Rydberg
318 Nelson Lane
Lopez Island, Washington 98261.
MTC-00028832
From: Carl Hekkert
To: Microsoft ATR
Date: 1/28/02 6:05pm
Subject: Microsoft
Your Honor,
As a Silicon Valley resident, I must voice my objection to the
proposed settlement in
[[Page 28450]]
the Microsoft case. As a beneficiary of years of anti-trust
violations, Microsoft is now being allowed to retain many billions
of dollars of illegal profits. Furthermore, this proposed settlement
does nothing to limit Microsoft's power and ability to continue its
anti-competitive behavior. I feel we are being sold short by this
proposed final judgment, and Microsoft emerges as the winner.
Respectfully,
Carl Hekkert
408-;245-;7266
MTC-00028833
From: Nicholas P. Provenzo
To: Microsoft ATR
Date: 1/28/02 6:02pm
Subject: Microsoft Settlement
Please see the attached document for the Center's comments on the
proposed Microsoft Settlement.
The Center for the Moral Defense of Capitalism
http://www.moraldefense.com
VOX: (703) 625-;3296
FAX: (815) 327-;8852
THE CENTER FOR THE MORAL DEFENSE OF CAPITALISM
January 28,2002
From: Nicholas Provenzo
Chairman
Center for the Moral Defense of Capitalism
To: Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Re: Microsoft Settlement
Pursuant to the Antitrust Procedures and Penalties Act, 15
U.S.C. 16, the Center for the Moral Defense of
Capitalism respectfully submits its evaluation of the proposed Final
Judgment resolving U.S. v. Microsoft Corporation (Civil Action No.
98-;1232) and State of New York ex. rel Attorney General Eliot
Spitzer, et al., v. Microsoft Corporation (Civil Action No.
98-;1233).
The mission of the Center for the Moral Defense of Capitalism is
to promote the social welfare of the nation by presenting to the
public a moral foundation for individualism and economic freedom
based on a philosophical analysis of humanity and human nature.
Specifically, we seek to apply Ayn Rand's philosophy of Objectivism
to the understanding of human action and human relationships.
As the cornerstone of a free, capitalist system, we argue that
human life requires thought and effort and that the free market
springs from the trade of one's thoughts and efforts with others. We
make the argument that human minds and bodies must be left free of
coercion, that all human interaction must be voluntary and that the
initiation of physical force must be banished from human
relationships. We see a proper government as the agent of its
citizens, charged with one mission: the use of retaliatory physical
force in defense against the initiation of physical force.
Our organization has followed the Microsoft antitrust case from
its initial filing--;we have opposed the case from the outset,
seeing it as an abridgement of the freedom of production and trade
and an interference with the right to acquire and possess property.
We disagree with the essential factual component of this case that
Microsoft's integration of its Internet Explorer Web browser with
its Windows operating system was a coercive act against Microsoft's
competitors and customers. Instead, we see a company that according
it its evaluation of the marketplace saw the commercial value of
product integration and acted accordingly. In exercise of
Microsoft's right to control its property, the firm set terms for
the sale of that property that it believed was in its own self-
interest. Microsoft's subsequent commercial success after this
integration affirms the wisdom of Microsoft's
actions--;Microsoft's customers themselves chose to reward the
firm with increased sales and increased market share. Rather than
serve an impediment to the free market, Microsoft's actions
personified them.
The Center for the Moral Defense of Capitalism
4901 Seminary Rd. Ste. 1320
Alexandria, VA 22311-;1830
Office: (703) 625-;3296 Fax: (815) 327-;8852
E-mail: [email protected]
Yet, obviously, Microsoft's success has made it into the target
of the government's wrath via the current antitrust case. Our
organization closely followed the District Court case, writing
several published evaluations of the case and its subsequent rulings
(see Appendix 1 & 2). Our organization also participated in the
US Court of Appeals for the District of Columbia Circuit appeals
proceedings as an amicus curie. Our amicus brief relied on two major
arguments in opposing the government's case: 1.) that the antitrust
laws are unconstitutional laws that fail to provide with clear and
concise guidance necessary to avoid sanctions under the law; and 2.)
that the antitrust laws are unconstitutional laws because they
require the government to initiate force against innocent citizens.
Today, our view of the Microsoft antitrust case and its proposed
settlement is as follows: While we respect the desire of the parties
to seek a resolution to this case, particularly that of Microsoft,
which has had to endure a 3 1/2 year crusade against its property
rights and its right to conduct its business in a profitable manner,
we are wary of any settlement that legitimizes any aspect of this
unjust assault against a successful, innovative business. We
consider the case against Microsoft to have been defective at every
level, from the fundamental claim that the entrepreneurial actions
of a successful business are a threat against others, to the claim
that a monopoly can exist where there is no legal barrier to
entering a market, to the claim that the citizens of the United
States are too ignorant or incompetent to exercise their individual
power of choice when in the marketplace and therefore require the
government to make their personal choices for them. We consider it a
failure that the court saw no distinction between the earned success
of a business in the free market and the coercive power of a
government favorite and we consider it a failure that the court did
not ultimately throw out the case against Microsoft.
Considering that this case was initial brought not at the
insistence of individual consumers or with Microsoft's business
partners, but at the insistence of Microsoft's unsuccessful
competitors, this entire case reeks of business failures asking the
government to step in and give them the commercial success they
could not achieve in the marketplace. Failed businesses must not be
allowed to set the rules for the markets in which they failed. In
evaluating the proposed settlement, we find that it specifically
threatens the right to private property. A key component of the
proposed remedy is a requirement that Microsoft make its source
codes available to a government-sanctioned oversight committee,
which in turn is supposed to ensure these same source codes are made
available to non-Microsoft ``middleware'' producers, so
that these companies can create products to compete with Microsoft.
Since under the proposed judgment, the United States would retain
the right to determine and enforce the scope to which these source
codes are to be made available, the final judgment constitutes a de
facto seizure of private property--;the source codes--;and
its subsequent conversion to a public good. Such a taking is wholly
incompatible with the Constitution of the United States.
Accordingly, we reject the notion that this settlement serves the
public interest, or that any punishment of Microsoft for its
business practices will be of benefit to any consumer. Eroding
Microsoft's property rights serves no one. We hold that no antitrust
case, including the Microsoft case can withstand rational scrutiny,
and we ask that no sanction be placed on Microsoft as a result of
its antitrust conviction.
Appendix 1:
Judge Jackson's Findings of Fiction
By Dr. Edwin A. Locke, Ph.D.
Senior Policy Analyst
The Center for the Moral Defense of Capitalism
Judge Thomas Penfield Jackson has released his ``findings
of fact'' in the Microsoft antitrust case. While his report did
contain some correct information--;such as the truism that a
successful company tries to defeat its rivals--;the central
claims of his report are blatant falsehoods. Let us examine five of
these fictions.
Fiction #1: Microsoft is a ``monopoly.'' There is
no such thing as a private monopoly. Only the government can
forcibly prevent competitors from entering a market. Microsoft has
attained dominance in the software industry, but dominance is not
monopoly. Market dominance has to be earned through a long struggle,
by providing better products and better prices than anyone else.
Dominant companies who falter (as did Xerox, IBM, General Motors and
Kodak) will find their market share eroded, sometimes very quickly.
There is no threat from these dominant players so long as their
competitors are legally permitted to enter the field, invent new
products, and combine with each other to gain the needed market
power.
In a free market, a dominant position can only be sustained by
continually providing new products and services that are better than
other firms'' products. Paradoxically, Judge Jackson recognizes
this fact but
[[Page 28451]]
condemns it. Microsoft's innovation, its continual product upgrades,
its millions spent on research and development, are cited by
Jackson, not as evidence that Microsoft has earned its position, but
only as evidence of a conspiracy to ``stifle'' its
competitors.
Fiction #2: Microsoft's ``monopoly power'' allows
it to ``coerce'' its customers. A private company has no
power to force consumers to do anything. Did Judge Jackson find that
Microsoft threatened to beat people up or throw their bodies into
the East River if they bought the wrong Web browser? Of course not.
The only ``leverage'' Microsoft has is the leverage it has
earned by producing a product that people want to buy.
This economic power, the power of voluntary trade, is
fundamentally different from political power, the power of the gun.
Yet Judge Jackson is eager to erase this distinction. Thus, such
actions as upgrading a product to match the features offered by a
competitor, distributing a product for free, or negotiating
favorable terms with business partners--;all of them normal and
beneficial business practices--;are presented by Judge Jackson
as if they are a nefarious, mafia- like conspiracy to oppress the
public.
Fiction #3: Microsoft harmed consumers. This is certainly
news to the millions of people worldwide who value Microsoft
products enough to make the company and its founders rich.
Most bizarre is Judge Jackson's claim that Microsoft harmed
consumers by giving away its Web browser, making it unprofitable for
other firms to sell their browsers. Any sane consumer would be
delighted to get a product for free rather than paying money for it.
To speak of receiving free software as a ``harm'' is
Orwellian doublespeak.
Fiction #4: Microsoft is a threat to consumers because it
``could'' raise its prices. Under this criterion, anyone
could be prosecuted for anything. Do you own a kitchen knife? Then
you might stab somebody--;so should the government put you in
jail?
Microsoft has the right to sell its product for any price it
chooses--;but anyone familiar with the history of business and
with Economics 101 knows that market leaders have a selfish interest
in keeping their prices low. Why? Because they make a lot more money
by creating a mass market than by creating a product only the rich
can buy. Henry Ford understood this. So did Bill Gates. Clearly,
Judge Jackson does not.
The only basis for his conclusion is the caricature of the
successful corporation as a vicious ``Robber Baron''
which, even if it is not ``exploiting'' consumer now, is
merely waiting for the opportunity to do so. Fiction #5:
Blocking Microsoft's ability to compete will foster greater industry
innovation. A private company, with no power over consumers but the
power conferred by offering a useful product, is branded by Judge
Jackson as dangerous. But far-reaching government intervention in
the software industry, including the massive use of force to shatter
Microsoft and control its business practices, is presented as an
attempt to spur innovation. Only those who believe AI Gore invented
the Internet could take this argument seriously.
What Judge Jackson really objects to is the fact that Microsoft
defeated its competitors, i.e., that it was successful. The real
meaning of his ``findings of fact'' is that the best
brains must be crippled, so that lesser brains will not have such a
hard time succeeding. He and the government prosecutors whose
arguments he is echoing do not want to foster innovation; they want
to sacrifice the best and the brightest in the name of
egalitarianism. They want the playing field leveled by coercion so
that no one can rise to the top.
What consumers need is an antidote to the fictions peddled by
Judge Jackson: the recognition that businessmen have a right to
succeed by trading their products in a free market. Dr. Edwin A.
Locke is Dean's Professor of Motivation and Leadership at the Robert
H. Smith School of Business at the University of Maryland and is
affiliated with UMD's Department of Psychology. An internationally
renowned behavioral scientist, Locke's work is included in leading
textbooks and acknowledged in books on the history of management.
THE CENTER FOR THE MORAL DEFENSE OF CAPITALISM
Appendix 2:
Altruism in Action: An Analysis of Judge Jackson's Finding of
Fact and the Antitrust Assault on Microsoft
by Adam Mossoff
Policy Analyst
The Center for the Moral Defense of Capitalism
United States District Court Judge Thomas P. Jackson is crystal
clear in his recent ``findings of fact'': Microsoft is
marked for destruction. But why does Judge Jackson want to punish
one of the most successful corporations in American history? Because
Bill Gates proclaimed that he wanted ``to prove that a
successful company can renew itself and stay in the forefront''
i--;and he proceeded to do just that.
By the early 90s, Microsoft had gained a dominant position in
the software industry by creating Windows, the first commercially
viable graphical operating system that could be used on PCs. But in
the mid-90s, Gates realized that the Internet represented the next
step in the ongoing computer revolution; thus, he created a business
plan to ``stay in the forefront'' of this revolution. In
so doing, he set into motion the same technological and commercial
innovation that had led to Microsoft's leading market position in
the first place.
Microsoft began by investing a staggering $100 million each year
in Internet research and development, and in four years the company
expanded its Internet division from only six people to more than one
thousand. These investments, in the words of Judge Jackson, paid
``technological dividends.'' ii (Paragraph 135) Microsoft
developed a Web browser called Internet Explorer, and ``after
the arrival of Internet Explorer 4.0 in late 1997, the number of
reviewers who regarded it as the superior product was roughly equal
to those who preferred [Netscape's] Navigator.'' (Paragraph
135)
But Gates took Microsoft even farther. He integrated Internet
Explorer into Microsoft's Windows operating system so that it would
be easier to incorporate the fast-growing Internet into all aspects
of personal computing. In fact, Judge Jackson partly acknowledges
the groundbreaking work performed by Microsoft in this regard:
The inclusion of Internet Explorer with Windows at no separate
charge increased general familiarity with the Internet and reduced
the cost to the public of gaining access to it, at least in part
because it compelled Netscape to stop charging for Navigator. These
actions thus contributed to improving the quality of Web browsing
software, lowering its cost, and increasing its availability,
thereby benefiting consumers. (Paragraph 408) Concurrent with its
technological innovation, Microsoft put into practice novel business
services and licensing arrangements. Just one of many examples
addressed by Judge Jackson is the Internet Explorer Access Kit
(IEAK), a service that permits an Internet access provider (IAP),
such as America Online or Earthlink, to accept a license agreement
on the Web and then download and customize Microsoft's Internet
software. When Microsoft began offering this service in September,
1996, it was the first time an Internet access provider could create
a distinctive identity for its service in as little as a few hours
by customizing the title bar, icon, start and search pages, and
``favorites'' in Internet Explorer. The IEAK also made the
installation process easy for IAPs. With the IEAK, IAPs could avoid
piecemeal installation of various programs and instead create an
automated, comprehensive installation package in which all settings
and options were pre-configured. (Paragraph 249)
More than 2,500 access providers--;representing more than
95% of the Internet subscriber market in the US--;used
Microsoft's IEAK service. (Paragraph 251) Notably, Netscape did not
create a similar service until nine months after Microsoft
introduced IEAK, and Netscape charged almost $2,000 for something
Microsoft offered for free. (Paragraph 250)
Microsoft blended technological innovation with business acumen
and thus offered its business partners an integrated package of new
technology and new business opportunities. In exploiting these
opportunities, Microsoft often offered ``valuable
consideration``--;such as special discounts--; to
companies like Compaq, IBM, and Intel as an incentive to adopt its
Internet Explorer and other Microsoft technology. In fact, Judge
Jackson uses the term ``valuable consideration'' eight
times to describe Microsoft's business agreements with other
companies--;leaving the honest reader to conclude that
Microsoft's dealings were not some form of coercion but rather
value-for-value trades.
For instance, Microsoft beat Netscape in developing a special
type of browser that America Online (AOL) required for its Internet
service. As a result, the two companies entered into several
agreements in 1996. In exchange for AOL's commitment to use
Microsoft's Internet software, Microsoft promised to provide AOL
with unprecedented access to Internet Explorer source code,
extensive technical assistance, ``free world-wide distribution
rights to
[[Page 28452]]
Internet Explorer,'' an assurance ``that future versions
of its Web browsing software would possess the latest available
Internet-related technology features, capabilities, and
standards,'' and the placement of an AOL icon in a special
folder on the Windows desktop. (Paragraph 288)
This relationship has been advantageous to both parties. Overall
usage of Internet Explorer has risen dramatically, and as a result
of this agreement AOL registered almost one million new users in a
single year--;11% of its total membership--;through its icon
on the Windows desktop. This fact alone prompted AOL to state in
1998 that its business arrangement with Microsoft was an
``important, valued source of new customers for us.''
(Paragraph 302) Microsoft's achievements should be held up as a
model of how to create and maintain a highly productive, innovative
company. Yet Judge Jackson is unable to view any of these facts in a
positive light. While Judge Jackson recognizes many of the concrete
facts that demonstrate Microsoft's productive achievement, he is
incapable of praising the innovation and business acumen that led to
Microsoft's success.
Instead, his descriptions are clouded by slanted, inflammatory
terms that attribute vicious motives to Gates and his company. When
Microsoft created new technology to compete with its rivals, Judge
Jackson describes the company's motivation as ``fear'' and
``alarm.'' When Microsoft offered incentives to its
business partners, Judge Jackson decries this as the
``quashing'' and ``stifling'' of rivals. When
Microsoft licensed its products only under conditions favorable to
its long-term success, Judge Jackson describes these actions as
``threats'' and ``force.'' (Judge Jackson uses
variations of ``threat'' no fewer than twenty times and of
``force'' no fewer than sixteen times to describe
Microsoft's actions.) When Microsoft refused to support its
competition, Judge Jackson calls this ``punishment.'' When
Microsoft ingeniously melded technological and business strategies
to convince consumers that its products were the best, Judge Jackson
sees the company as ``seizing control'' and trying to
``capture'' the market.
Even worse than his slanted terminology are his substantive
arguments, in which he sets up impossible standards according to
which no successful business could escape prosecution. For example,
Judge Jackson writes early in his ruling that:
It is not possible with the available data to determine with any
level of confidence whether the price that a profit-maximizing firm
with monopoly power would charge for Windows 98 comports with the
price that Microsoft actually charges. Even if it could be
determined that Microsoft charges less than the profit-maximizing
monopoly price, though, that would not be probative of a lack of
monopoly power, for Microsoft could be charging what seems like a
low short-term price in order to maximize its profits in the future
for reasons unrelated to underselling any incipient competitors.
(Paragraph 65) (Emphasis added.)
Judge Jackson admits that it is not possible to tell whether
Microsoft is in fact charging a monopoly price. Yet he dismisses
this lack of evidence as irrelevant because Microsoft could simply
be using low prices today in order to ``capture'' the
market and charge exorbitant prices at some future date. In other
words, Microsoft is a monopolist if it charges prices that are
deemed ``too high``--;but it is also a monopolist if
it charges prices that are too low. By virtue of its dominant
position in the industry--;that is, by virtue of its
success--;Microsoft is damned if it does and damned if it
doesn't.
Judge Jackson's visceral antagonism to business is also revealed
by his condemnation of Microsoft for winning the browser battle
against Netscape when ``superior quality was not responsible
for the dramatic rise [in] Internet Explorer's usage share.''
(Paragraph 375) Note the implicit premise in this condemnation: If
Microsoft hasn't produced a product that is technologically
superior, then only commerce can explain its success. Jackson is
repulsed by the notion that successful computer companies require
both technological savvy and business skills; in his ideal world,
Silicon Valley would be populated solely by computer scientists with
nary an ``alarming'' venture capitalist or
``threatening'' businessman in sight. Judge Jackson's
praise for innovation, however, might seem to contradict his overall
attack on successful businesses. Technological innovation is a
source of business success, is it not? Although Judge Jackson
recognizes that technological innovation causes businesses to
succeed, he believes that this innovation has another, more
legitimate, function. He writes:
In many cases, one of the early entrants into a new software
category quickly captures a lion's share of the sales .... What
eventually displaces the leader is often not competition from
another product within the same software category, but rather a
technological advance that renders the boundaries defining the
category obsolete. These events, in which categories are redefined
and leaders are superseded in the process, are spoken of as
``inflection points.'' (Paragraph 59) (Emphasis added.)
Innovation appeals to Judge Jackson not because it leads to the
creation of wealth, but rather because it tends to tear down the
market leader. He argues that the emergence of the Internet in the
mid-90s was one such ``inflection point.'' (Paragraph 60)
Thus, the nature of his support for innovation explains his disgust
with Microsoft's defeat of Netscape: By introducing its browser
product sooner, Netscape should have replaced Microsoft--;if
only Microsoft had not engaged in the ``vicious''
commercial competition that ensured its continued leadership in the
computer industry.
These beliefs ultimately lead Judge Jackson to conclude that
Microsoft's ``monopoly power'' has ``harmed consumers
in ways that are immediate and easily discernible.'' (Paragraph
409) What are these alleged harms? Judge Jackson claims (wrongly)
that the integration of Windows 98 and Internet Explorer does not
allow employers to block employees from surfing the Web. He asserts
that vast ``confusion'' reigns among consumers--;but
beyond one or two offhand references throughout the ruling, he never
explains this vague allegation. Moreover, he claims, the integration
of Windows and Internet Explorer has created slower computers with
more bugs--;as if computers are slower and less dependable than
they were two years ago! One might regard such mythical
``harms'' as the laughable allegations of a
Luddite--;if they did not come from a judge who wields the
coercive power of the federal government.
Regardless of how trivial these alleged harms may be, Judge
Jackson seems sincerely to believe that Microsoft is acting as a
vicious monopolist. Why? He answers this question in the last few
sentences of his ruling: ``Microsoft's past success in hurting
such companies and stifling innovation ... occur for the sole reason
that [other companies and their innovations] do not coincide with
Microsoft's self-interest.'' (Paragraph 412) (Emphasis added.)
It takes Judge Jackson more than 200 pages, but in the end he
names the essence of his disgust for Microsoft--;and the essence
of the antitrust laws. In so doing, Judge Jackson exposes the
fundamental moral premise dictating his factual distortions, his
fallacy-ridden arguments, and his illogical conclusions: a hatred
for any form of self-interest.
The morality of altruism or self-sacrifice is often presented as
a form of benevolence, as if it simply means being nice to other
people. But the actual meaning of this philosophy is a hatred of
success. Under this morality, anyone who achieves some extraordinary
wealth or distinction owes it to his fellow men to sacrifice what he
has earned--;including giving away his whole fortune, as and
when it is demanded by others. (This is essentially what has been
demanded of Bill Gates.) But what about those who have not achieved
anything? They are entitled to welfare programs, private charities,
protective legislation, and a host of other unearned benefits to be
paid for by those who have succeeded. In this system, anyone who
earns success through his own effort is to be punished, while anyone
who hasn't exerted any effort and hasn't attained any success is to
be rewarded.
Far from standing for benevolence or good will, such a moral
outlook stands for destruction. This code of sacrifice demands an
assault on a Microsoft or a Bill Gates. By amassing so much money
and achieving so much success, they must be shirking their duty to
sacrifice to others. But it does not demand the destruction of the
Netscapes of the world because, by* virtue of having faltered, they
are the ``have-nots'' who are entitled to benefit from the
sacrifice of their more-successful competitors.
Note that the ultimate standard of this moral outlook is not the
well-being of the poor, the weak, the downtrodden; has the welfare
state ever achieved these aims? Instead, the goal is the sacrifice
of the rich, the strong, and the powerful--;not to achieve any
positive aim, but simply to punish them because they are rich,
strong, and powerful.
The altruist connection to antitrust is evident in the mere fact
that Judge Jackson could have applied the antitrust laws against
Microsoft without finding any harm at all. Although the ostensible
purpose of antitrust
[[Page 28453]]
is to ``protect consumers'' from alleged
``monopolists,'' court decisions consistently belie this
fiction. In one of the first cases defining the doctrine of
antitrust, a large railroad trust defended itself against
prosecution by arguing that its price-fixing plan resulted in lower
prices for consumers. Since the stated purpose of the 1890 Sherman
Antitrust Act was to protect consumers, and since consumers actually
benefited in this case, the defendant logically concluded that the
antitrust laws should not apply to its practices. The Supreme Court
rejected this argument and ruled that the railroad trust was guilty.
In an illuminating statement, Justice Peckham declared: ``In
this light it is not material that the price of an article may be
lowered. It is in the power of the [monopolist] to raise it.''
iii
(Interestingly, Justice Peckham was an ardent conservative who
was one of the principal advocates of ``freedom of
contract'' in the 19th century--;just as Judge Jackson was
a Reagan appointee. This proves once again that conservatives are
not reliable friends of freedom.) Continuing to apply the underlying
anti-success principle of antitrust, the Supreme Court ruled in 1968
that a newspaper company violated the Sherman Antitrust Act when it
fired a distributor for charging rates above an allowable maximum
price. The Court found that the newspaper ``would not tolerate
over-charging'' of its customers, and that it even agreed to
rehire the distributor if he ``discontinued his pricing
practice''--;-that is, if he charged lower prices.
Nonetheless, the Court held that the benefit to consumers was
irrelevant in finding that the newspaper company acted in
``conspiracy'' with its other distributors to set
prices--;thus its actions were ``an illegal restraint of
trade under Section 1 of the Sherman Act?
Harm to consumers has nothing to do with the purpose of
antitrust. The antitrust laws are intended only to punish
``power``--;but since economic power is earned on the
free market, this means that the purpose of antitrust is to punish
successful business practices. Antitrust case law is replete with
examples of companies being punished, not for any alleged harm, but
simply for having the acumen to remain successful in their
industries. A ski resort in Aspen, Colorado, was not only found
guilty in 1985 of violating the antitrust laws because it
successfully competed against its only rival; it was also held to a
``duty under antitrust law to help a competitor.'' v In
the famous case against ALCOA in 1945, Judge Hand declared that
``the successful competitor, having been urged to compete, must
not be turned upon when he wins.''
But he contradicted himself in the very next paragraph,
concluding that ALCOA insists that it never excluded competitors;
but we can think of no more effective exclusion than progressively
to embrace each new opportunity as it opened, and to face every
newcomer with new capacity already geared into a great organization,
having the advantage of experience, trade connections, and the elite
of personnel. vi
ALCOA's ability and success, by Hand's reasoning, was the
deciding factor for finding it guilty of violating the antitrust
laws.
Given this legal context, Microsoft was doomed before it even
set foot in the courtroom. The media, in an anti-Microsoft feeding
frenzy, often highlighted mistakes made by Microsoft's counsel
during the lengthy (and ongoing) trial. Yet Microsoft's attorneys
could have performed flawlessly, and Judge Jackson would still have
produced the same ruling.
The reason is that Microsoft is an extremely successful company;
Gates is a unique combination of technological genius and
businessman, reminiscent of earlier American giants like Thomas
Edison. Thus, it was irrelevant how hard Microsoft's attorneys
worked, or how much intellectual vigor they brought to their legal
briefs and courtroom arguments. These things were irrelevant because
no army of lawyers could hide a single, essential fact--;the
only fact necessary for applying the antitrust laws: Microsoft
succeeds at what it does.
The punishment doled out for success is paralysis. Judge Jackson
makes it clear that Microsoft must not be permitted to capitalize
upon its well-earned success. Because it has created values, it must
now relinquish them. Does it matter that Microsoft has earned its
success by producing a better product, by offering better incentives
to its business partners, and by providing better service to
software developers and Internet access providers? No.
Such facts do not matter to a man who believes that a successful
company has a moral duty to sacrifice to its lesser rivals--;-
especially when that man has the legal power to coerce the company
to obey its alleged duty. With every slanted term and with every
absurd conclusion, Judge Jackson practically screams his unstated
moral premise: Since Microsoft is a leader in the computer industry,
it must sacrifice the values it has created because it has created
them.
In his ruling, Judge Jackson claims to set out the objective
facts underlying his impending application of the antitrust laws to
Microsoft. But the only thing he manages to establish is his own
animosity towards commercial success. What drives this animosity is
the underlying moral justification for antitrust: altruism's hatred
of success.
The basis for Judge Jackson's ruling is not any
``monopoly'' allegedly controlled by Microsoft; it is the
monopoly commanded by the morality of altruism over our culture.
That monopoly can be seen, unfortunately, in Bill Gates's sanction
of his own destruction in a comment immediately after the ruling, in
which he declares that ``because of our success, we understand
that Microsoft is held to a higher standard, and we accept that
responsibility.'' vii As long as this moral monopoly remains
unchallenged, legal doctrines such as antitrust will continue to
punish successful businesses.
i Bill Gates, The Road Ahead 64 (1995)
ii US v. Microsoft, No. 98-;1233 (TPJ) (D.DC Nov. 5, 1999)
(findings of fact). All references to the findings of fact hereafter
will refer only to the paragraph number.
iii United States v. Trans-Missouri Freight Association, 166 US
290, 324 (1897), emphasis added.
iv Albrecht v. Herald Co., 390 US 145, 153 (1968).
v Olympia Equipment Leasing Co. v. Western Union Telegraph Co.,
797 F.2d 370, 377 (7th Cir. 1986), citing Aspen Skiing Co. v. Aspen
Highlands Skiing Corp., 472 US 585 (1985) (holding that a monopolist
has a duty to help a competitor).
vi US v. Aluminum Co. of America, 148 F.2d 416, 431 (2d Cir.
1945).
vii ``Statement by Bill Gates on the Findings of
Fact,'' www.microsoft.com/presspass/ofnote/11- 09wsj.asp,
visited Nov. 11,1999.
MTC-00028834
From: kayandmitch
To: Microsoft
ATR,[email protected]@inetgw
Date: 1/28/02 6:06pm
Subject: Microsoft settlement
As a retired citizen of Washington state, I encourage you to
accept the proposed settlement in the anti-trust case involving
Microsoft. I am neither an employee nor a stockholder in this firm.
This settlement is appropriate and reflects a triumph of the
rule of law. Many critics, all with an axe to grind, i.e. compeitors
and state attorneys-general, call for extreme, stringent
restrictions that are totally inappropriate.
These objections ignore the decision of the Appeals Court that
reversed much of Judge Jackson's original findings. Objectors not
only misstate facts, but deliberately misinterpret the Appeals
Courts'' key findings.
In my view there can be no valid objection to this settlement
since every major finding of the Appeals Court is stringently
addressed with a targeted remedy that specifically prohibits and
prevents the conduct in question.
Acceptance of the proposed settlement will send a signal to
American industry managements and all thinking citizens that the
rule of law is still being enforced appropriately. Anything beyond
this settlement would be a victory for those who seek damage and
destruction rather than a remedy;. for competitors, litigation
rather than innovative, honest competition.
Every person with the most rudimentary understanding of free
markets wants the law to protect the markets'' smooth
functioning. Can we depend on the fair application of the laws that
all participants in the U.S. economy rely on? I hope your answer is
a resounding ``yes''.
Thank you for your consideration.
Harold G. Mitchell
1800 Skyline Way
Anacortes, WA 98221
MTC-00028835
From: Lisa Kianoff
To: Microsoft ATR
Date: 1/28/02 6:06pm
Subject: Microsoft Settlement
Dear Attorney General Ashcroft.
Please see the attached word document regarding my support for
the Microsoft settlement. Please contact me if you have any problem
reading the document.
cc: Spencer Bauchus
Regards,
Lisa Kianoff, CITP.CPA
[[Page 28454]]
Top Ten Birmingham Business Women For 2000
L. Kianoff & Associates, Inc.
``Computerized Accounting Solutions'' 1128 22nd Street
South Birmingham, AL 35205 205-;592-;9990
205-;592-;9991 fax [email protected]
www.kianoff.com
MTC-00028835--;0001
L. Kianoff
Associates, Inc.
Computerized Accounting Solutions
January 28, 2002
1128 22nd Street South
Birmingham, AL 35205
205-;592-;9990 * FAX 205-;592-;9991
e-mail: [email protected]
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I cannot help but think that this settlement recently reached
between the Department of Justice and Microsoft is a good thing.
Since the court case was as contentious as it was, there was very
little progress being made.
The terms of this settlement, however, accomplishes a great deal
without all the controversy. Most consumers will immediately benefit
by being able to choose different software combinations without fear
of compromising their installed operating systems, and most computer
makers will benefit by being able to offer a wider variety of
options to their customers.
All in all, this settlement is a great benefit to all and I am
writing to express my support for it. Thank you for the hard work
you put in to reach this settlement, and your continued support.
Sincerely,
Lisa Klanoff
President
Cc: Representative Spencer Bachus
L. Kianoff
Associates, Inc.
Computerized Accounting Solutions
1128 22nd Street South
Birmingham, AL 35205
205-;592-;9990 * FAX 205-;592-;9991
e-mail: [email protected]
MTC-00028836
From: Maureen Baskin
To: Microsoft ATR
Date: 1/28/02 6:07pm
Subject: Microsoft Settlement
I apologize for sending this via email, I've tried several times to
FAX this to you today from a local office store, but the line has
been busy each time.
Respectifully,
Maureen J. Baskin
January 24, 2002
Dear Attorney General John Ashcroft,
Please consider my request for an immediate approval of the
pending settlement between Microsoft, the Department of Justice and
nine states. I worked for Microsoft from 1989 to 1996 in sales.
Prior to Microsoft I worked for small and large corporations,
including Bank of America and Dun and Bradstreet. I have never
worked for a company where the employees were so bright, motivated,
and empowered. There are so many strengths I would like to share,
but in the interest of brevity I will highlight Microsoft's
generosity to employees, customers, community and charities.
There were less than 5,000 employees working at Microsoft when I
began work there. Excel had less than 11% of the spreadsheet
marketplace and Windows was not yet graphical. Through the careful
design by management, programmers, marketing, usability testing and
sales people, Microsoft went from a company I had rarely heard
mentioned from ``84 to ``89 (while teaching PC classes on
the East Coast) to a household name today.
I encourage you to settle this case and commend Microsoft for
going beyond the requirements stated by the Court of Appeals ruling.
The products Microsoft offers have enriched the lives of so many.
I remember reading an article about Bill Gates'' Mother one
time and I've never forgotten it. She was calling for him (perhaps
it was to dinner), over and over again, but there was no response.
Finally when she asked what he was doing, he said, ``I'm
thinking!'' I'm glad he couldn't see the negative in the
future, for he may have stopped in his tracks before starting
Microsoft.
Let us highlight bright companies and businesses that stretch
their imaginations and build superior products. Microsoft was not
always such a big company, thousands have worked very hard to bring
about it's success. They have worked consistently for developers,
resellers, consumers and corporate customers, to build products
needed in their world. Please do not allow jealous competitors to
side track the industry, government and the economy on this matter
any longer. Thank you for your time and consideration,
Respectfully,
Maureen J. Baskin
502 8th Ave. West, Kirkland, WA 98033
CC: Maureen Baskin
MTC-00028837
From: Benjamin B. Thomas
To: Microsoft ATR
Date: 1/28/02 6:08pm
Subject: Microsoft Settlement
Benjamin B. Thomas
1975 Cahaba Valley Road
Indian Springs, AL 35124
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
United States Department of Justice:
I am writing to oppose the proposed settlement with Microsoft. I
have read the original complaint of United States and the several
States, the proposed settlement, the Competitive Impact Statement
at, in addition to many other sources including the findings of
fact. I feel that the proposed settlement falls far short of
rectifying the damage which has been done to myself and other
consumer by Microsoft through years of abuse of their monopoly, and
that the enforcement provisions do little to dissuade Microsoft from
continuing such practices in the future.
While some of the settlement provisions are a good start, there
are many loop holes, and several places where it falls short. The
trial should be allowed to proceed, so that a stronger remedy
without loop holes, and with stricter enforcement and actual
punishment for past wrongs can be enacted. I will leave some of the
other problem topics to others, but wish to address a limited set
here.
The stipulated parties who are protected from anti-competitive
acts are ISVs, IHVs, IAPs, ICPs, and OEMs. This list is much too
exclusive. The general public and especially Open Source software
developers must also be protected. In the recent past, one of the
only viable responses to Microsoft's hegemony has been Open Source
software developers. These people have *donated* millions of hours
of their time to produce a software platform--;a feat which
would not have been possible if they were a strictly commercial
entity in competition with Microsoft. These people must have the
same access to information as commercial entities, or one of the few
viable responses to the Microsoft monopoly will be stymied by the
settlement.
All of the API, format, and protocol standards which Microsoft
uses to propagate its monopoly should be opened. Microsoft has
repeatedly leveraged its monopoly position along with rapidly
changing or secret formats to lock competitors out of their market.
Due to the substantial network effects involved in computer
software, it is very hard to function when using alternative
software since users will be unable to interact with others as soon
as Microsoft releases the next revision of a product.
The central reason that Microsoft has maintained and extended
its monopoly is not due to the superiority of its product, but
through ``lock-in.'' Once one's data and software on
secreted away within the Microsoft platform, it is extremely painful
to switch to a superior platform. This not only directly hurts
consumers, but stifles innovation in the computer industry. The
provisions in the settlement do not do enough to make Microsoft open
these standards to all parties interested in being compatible and do
little to dissuade foot-dragging on Microsoft's part. Microsoft's
APIs, file formats, and protocols should be fully standardized,
documented, publicly published, and an accessible compatibility
laboratory formed. This allow other software vendors to compete on a
more fair playing field. This would be a start, but as others will
surely describe in other comments, a fair distribution channel, free
from punishing bundling agreements must be enforced.
I ask the DOJ to reconsider the decision to settle and to
continue with the matter at trial. Microsoft has repeatedly show a
willingness to flout the law. The remedies do not go far enough in
punishing past illegal behavior or dissuading similar new behavior.
The proposed mechanism of enforcement does not seem to have teeth,
and Microsoft will likely attempt to break it soon after enactment.
There is little deterrent to their doing so.
Sincerely,
Benjamin Thomas, Voter
[[Page 28455]]
MTC-00028838
From: John Spear
To: Microsoft ATR
Date: 1/28/02 6:09pm
Subject: For the proposed settlement
Hi!
While you may discount this, I would like to state my opinion
that the proposed settlement in the Microsoft Anti-trust case is
both a valuable and useful resolution to this court battle that
continues unwarrantedly.
While it is unfathomable to me how the United States government,
along with several State governments can conceive of punishing a
successful company for being successful, I can see how some of the
stated actions attributed to Microsoft could be considered
inappropriate for an open marketplace. I do agree that many of the
settlement terms implement procedures that Microsoft should have
(and sometimes did) put into place many years ago. As such, I
believe this settlement should go through substantially as proposed.
I also would like to see our court system spend time and money
on anti-trust issues that have actual, demonstrated customer harm at
their core, rather than the supposed harm to competitors that
tripped up in the course of their own business and have failed to
produce products that customers would continue to use over the
course of years.
TTFN
John Spear
MTC-00028839
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:08pm
Subject: Letter for Microsoft
Dear Sir or Madam,
This a copy of my letter to support the efforts of the MA
Attorney general, Tom Reilly regarding the Microsoft settlement. I
will be following up with a signed copy via fax.
Thank you very much,
Colleen Reilly, MA
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
via email: [email protected]
Re: The Microsoft Settlement
I am writing to you about the proposed Microsoft settlement as
both a private consumer as well as a human resources professional. I
am very concerned as a consumer that I continue to have a choice in
the software I purchase without having to be concerned with
interoperability issues.
As a human resources professional and personal user of
Microsoft, I want to maintain open computer systems that will
facilitate communication and training materials.
Openness is paramount to maintaining competition, but openness
is not what Microsoft wants. And it is not what this settlement, as
it is currently written will guarantee.
I support including additional remedies as proposed by the
dissenting Attorneys General, including the AG form my own state,
Tom Reilly (no relation). Those remedies would ensure consumer
choice, competition and interoperability of software. Specifically,
I support the following: .
Microsoft should offer an alternative, basic version of Windows
to personal computer manufacturers. This alternative version would
have no Microsoft ``add-ons'', such as Internet access
software, media players, or email applications, included.
2. Microsoft should provide the software code for Internet
Explorer to competing software developers so that Microsoft cannot
monopolize the Internet access or browser markets.
3. Microsoft should develop some mechanism to allow competitors
to produce non-Windows based versions of the Office software suite.
Sincerely,
Colleen Reilly
MTC-00028840
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:09pm
Subject: Microsoft Settlement
Microsoft believes the terms-which have met or gone beyond the
findings of the Court of Appeals ruling-are reasonable and fair to
all parties involved. This settlement represents the best
opportunity for Microsoft and the industry to move forward.
I ALSO AGREE WITH MICROSOFT
(This ruling will unnecessarily keep Microsoft from reaching the
public with improvements for the computer industry)
Jimmy McCoy
http://
youens.com/mccoy/
MTC-00028841
From: Elliott Mitchell
To: Microsoft ATR
Date: 1/28/02 6:10pm
Subject: Microsoft Settlement
The settlement is flawed. It will not foster competition in any
way. In fact by requiring Microsoft to donate their software to
schools will have very much the opposite effect, helping the
Microsoft monopoly to weaken Apple, the sole remaining competitor in
making Operating Systems.
I sincerely hope that the settlement will be completly rejected,
thereby restoring the hope that the rest of the computer industry
will florish once again.
MTC-00028842
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:11pm
Subject: Microsoft Settlement
1085 Warburton Avenue Apt. 324
Yonkers, NY 10701
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am in support of the settlement proposed in the antitrust case
between the Department of Justice and Microsoft. The settlement
offers terms that I feel are beneficial to technology users and
sufficient enough to end all of this litigation.
I think that the internal interface disclosure, licensing of
Windows products, and technical committee in the settlement all open
the doors for increased competitive behavior. If the government
alleges that Microsoft was involved with anticompetitive behavior,
then the problem is rectified.
We need an end to drawn out legal proceedings. It is time to
allow Microsoft to get out of court and get back to business.
Support the antitrust settlement.
Sincerely,
Joan Stupler
MTC-00028843
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:11pm
Subject: Microsoft settlement
I believe that the microsoft settlement is bad for american
business. I have seen the future of Microsoft operating system
software in XP and I do not want it. It is horrid to use. I went out
and got a older version of win 98 to replace it.
If Microsoft maintains its freedom to abuse its consumers, my
business will suffer. The only real punishment is to break up the
company or to require much of the secret stuff in Windows to become
public so that the market can punish Microsoft for writing bad,
crash prone, stupidly functioning, software. Under the current
government proposal, this will not happen.
Daniel Winter, President
Brookline Print Center
370 Boylston Street
Brookline MA 02445
MTC-00028844
From: Seth Mearig
To: Microsoft ATR
Date: 1/28/02 6:13pm
Subject: microsoft settlement
Dear Judge,
I am not always entirely in favor of heavy-handed government
influences, but I do believe that Microsoft has gone too far in some
of its business practices. I do not think the Proposed Final
Judgement goes far enough to sanction a company that has proved
itself capable of willfully violating laws and engaging in
monopolistic practices. Please look again at the PFJ and give
Americans some freedom in the area of operating systems, web
browsers, and other software programs. If something is not done to
check Microsoft now, it may be too late in the future.
Sincerely,
Seth Mearig
3025 Royal Street
Los Angeles, CA 90007
CC:[email protected]@inetgw,dkleinkn@yahoo...
MTC-00028845
From: Jana Marie Goodwin (TASCA)
To: Microsoft ATR
Date: 1/28/02 6:13pm
Subject: MICROSOFT SETTLEMENT
As a Microsoft consumer, employee and shareholder, I felt it my
obligation to write on behalf of Microsoft corporation. Our
government has spent more time, money and resources fighting
Microsoft Corporation than Terrorism! And all based upon allegations
[[Page 28456]]
from our competitors and their political supporters. As a tax payer,
I question this, as being the best use of tax dollars and government
resources and the best place for efforts to be invested.
Microsoft has a passion for the customer and it's products and
technology. I've been proud to represent them as an employee and to
help our customers succeed and grow their businesses with Microsoft
technologies and products. I have over the years, continually had
happy customers who felt Microsoft contributed greatly to their
success and the growth of the industry and was a true partner in
their businesses.
Microsoft is not Big Tobacco, it is not misleading, deceiving or
intentionally hurting consumers, which makes the allegations and
continued lawsuits increasingly more difficult to rationalize. Why
should competitors reap the benefits of this suit?
If consumers and the general public are being hurt, why won't
the additional 9 states accept the settlement that proposes to help
the consumer and benefit and educate the general public and make
technology accessible and available to those who would not have
exposure otherwise ?
What I fear, is that the focus has moved away from what is best
for consumers, partners, customers and the industry, (not to mention
our Nation's economy) by the efforts of competitors and competitive
interests, and is aimed at taking down a ``powerhouse'' or
``the richest man in the world''. Is this really as
objective a process as it should be?
What is good for ``competitors'' may not be what's
good and healthy for innovation and the industry.
Punishing successful companies and entrepreneurs, is creating an
environment that destroys the motivation to innovate and improve and
invest in new and improved technologies in all facets of our
economy. The value placed on Intellectual Property can not be
negotiated away. Will you next have COKE, give PEPSI, their recipe?
Or throw patents out the window in an effort to level the playing
field and stifle innovation all together? There is a difference
between Open standards and giving away intellectual property to
competitors, then the consumer loses.
And would our competitors willingly give us their source code
and intellectual property? If we are leveling the playing field then
shouldn't everyone comply?
Based upon the state of our economy, and the recent ENRON
scandal, I fear Microsoft is headed in the same direction and thus
not hurting the ``Richest Man in the world'' or this big,
bad, bully of a company as it is portrayed, but the average American
worker and investor in Microsoft in any fund or pension plan nation
wide. My pension and retirement funds have plummeted over the last 2
years as this lawsuit ensues and continues. I fear I will end up
like the ENRON employees as I watch my 401 K value fall as a result
of this lawsuit and the impact it has had on the economy as a whole
and the entire tech sector. Over the years, Microsoft has committed
to changing it's business and licensing practices multiple times to
comply and paid over $600M last quarter relating to the lawsuit. At
what point can we all resume business and our competitors and
special interests be silenced?
Why are other States, not accepting the proposed settlement and
accepting the terms of the settlement , whatever happened to torte
reform?
Can't this battle be fought in the market place and not in the
court room?
Thank you,
Jana Marie Goodwin
OEM Business Development Manager
Microsoft Press
CDDG
mspress.microsoft.com
MTC-00028846
From: Orpheus Colin Vazquez
To: Microsoft ATR
Date: 1/28/02 6:15pm
Subject: Microsoft Settlement
The current settlement made by the DOJ, failed to meet the
changes hoped for by myself, and I'm sure many others. A quick
settlement was reached, but no real punishment was delivered to the
company, and it seemed as if the DOJ quickly gave up. Hopefully a
better agreement can be reached in the future with the last states
that have kept their claim against mircosoft, and I hope futhermore
that this case if ever brought before a judge in the future by the
DOJ, I hope they can further persue their goals in the case, and not
give up so quickly. Microsoft continues to show practices which
prevent competition. They continue to dominate areas of markets
without it seems any hope for future competition with the settlement
that has been reached. Hopefully something can and will be done
about this one day.
Orpheus Vazquez
MTC-00028847
From: Joanna
To: Microsoft ATR
Date: 1/28/02 6:20pm
Subject: Microsoft Settlement
January 27, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am acutely dismayed that our government has decided to insert
itself into the affairs of private businesses. I do not believe it
is the responsibility of the government to regulate business. The
Microsoft antitrust case is just another example of the state
pandering to petulance. Companies can and should have the ability to
stand on then own feet. I am disgusted that every time a conflict
arises in business, it is acceptable to run to the government for
protection instead of toughening up. This whole suit has been a
colossal waste of time and money not only on the part of the
government, but on Microsoft's part as well. They should have been
putting their resources towards innovation, not litigation. I
believe the government should back off in this case. There is
absolutely no need to federalize what is simply the inability of
companies to take their licks and keep moving in a fiercely
competitive atmosphere.
I do not claim that Bill Gates is a saint. He is a tough
competitor, and I understand how companies can feel daunted by
Microsoft's prowess in the market. But I believe consumers are able
to judge for themselves what is good and what is not, and are
capable of regulating big business through purchase and support of
products. The government has no fight to take that privilege away
from consumers. The settlement requires Microsoft to disclose source
code from its Windows operating system, allowing competitors the
ability to work within Microsoft's operating system instead of
having to develop a quality operating system on their own. It also
requires Microsoft to refrain from retaliation when software is put
on the market that directly competes with Microsoft software, but
this just makes companies weaker by reducing the severity of
competition in the market. Restrictions breed contempt, and contempt
is not productive. F.A. Harper* wrote, ``Human goodness can
only grow in a climate of liberty.'' If liberty is removed from
the technology market, the government cannot expect goodness to
remain.
The companies and states who are continuing to pursue litigation
are opportunists. They are the result of an education system that
has indoctrinated them to believe that it is acceptable to steal
from one's neighbor as long as one has the government do it for
them. They take privileges for granted and claim them as rights. It
is nothing but political whoring. It is wrong. The litigation needs
to stop now, before this kind of behavior is reinforced any longer.
It is a total waste of creative and productive energy--;and of
the resources that would otherwise support these essential elements
of a health economy and prosperous society.
Sincerely,
Joanna Parker
F.A. Harper was a revered scholar and founder of the Institute
of Humane Studies, which still continues at George Mason University
in Fairfax, Virginia.
MTC-00028848
From: H Pittell
To: Microsoft ATR
Date: 1/28/02 6:16pm
Subject: Microsoft Settlement
I am writing to give my support to Microsoft in the recent
Department of Justice v. Microsoft antitrust case, and ask that you
approve this settlement. I have Microsoft products and approve and
agree with what Mr. Bill Gates has been trying to do--;and has
succeeded--;in doing so by making softwear available to the
average person, of which I am one, and at an affordable price. Just
what is it that he has done that is contrary to law? I have always
thought that by making a superior product with a reduction in price
you would be serving the public. Personally, I think it is
``sour grapes'' on the part of the competitors of
Microsoft who run crying to the government that what he has
succeeded in doing, and doing so well, comes under antitrust. Also
the attorneys-general who have refused to enter into a settielement
always have been able to appoint ``high powered'' law
firms to represent their state which, of course, calls for huge
fees--;not
[[Page 28457]]
fees, as far as I am concerned, but ``pay offs.'' I do not
know the technicalities of the settlement nor would I be able to
understand the testimony in the actual trial.
I am merely an average citizen, with an average education with a
family to support who is interested in justice for the average
person and want to pay a fair price for a product which, to me, is
outstanding.
What is it that Shakespeare said about lawyers?
Harold Pittell
MTC-00028849
From: John A. Hossack
To: Microsoft ATR
Date: 1/28/02 6:14pm
Subject: MS Settlement
[Text body exceeds maximum size of message body (8192 bytes). It
has been converted to attachment.]
Microsoft Settlement
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
From: John Hossack
617 Davis Ave
Charlottesville
VA 22901
I wish to comment on the proposed Microsoft settlement. The
Court of Appeals affirmed that Microsoft (MS) has a monopoly on
Intel-compatible PC operating systems, and that the company's market
position is protected by a substantial barrier to entry, and that
Microsoft is liable under Sherman Act 2 for illegally maintaining
its monopoly. According to the Court of Appeals ruling, ``a
remedies decree in an antitrust case must seek to ``unfetter a
market from anticompetitive conduct'', to ``terminate the
illegal monopoly, deny to the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future''.
Like all those found guilty of a crime, Microsoft need to be
punished for their actions--;ideally in a way that attempts to
restore competition and undoes the damage inflicted on the consumer
by their anticompetitive behaviour. MS has profitted greatly from
their behaviour, and the fruits of their illegal actions must be
denied to them.
Previous court ordered remedies have shown that Microsoft
willfully ignores and attempts to circumvent any restrictions placed
on them by careful selection of the language used in these remedies,
and stalling with continued appeals such that by the time a
resolution occurs, there is no surviving competition. Microsoft show
no signs of remorse or attempts to change their pattern of
behaviour. Indeed, while conceding certain points on existing
Operating Systems (OS), they are careful to ensure that applications
(such as Microsoft Office Suite) and future products such as .NET
are excluded from any restrictions. It is clear from their pattern
of behaviour that they will attempt to monopolise these markets, and
that nothing but the most severe restrictions on their behaviour
will have any effect.
Since many of the companies adversely affected by Microsoft are
no longer operating due to the illegal monopoly, it is hard to make
reparation to them. Rather, the remedy must seek to redress the harm
done to the consumer, and to prevent Microsoft continuing to use its
illegaly gained market dominance to monopolise new markets. It is
apparent that Microsoft traditionally gains dominance in a new
market buy tying sales of one product to sales of another--; for
example, the bundling of Microsoft Office with Windows, and the
intimidation of Original Equipment Manufacturers (OEMs) to ensure
that this continues to the exclusion of competitors. Their willful
circumvention of previous court restrictions, which violate the
spirit if not the exact letter of the agreements, indicate that MS
must be given no latitude in which to avoid punishment. The only
option remaining if this is true, is a structural remedy.
Structural Remedy:
The existing MS corporation must be split into at least 5
separate companies, each of which is barred from operating in the
other 4 areas or joining with one of the other compnaies for a
period of not less than 10 years. The company should be split along
the following lines:- Operating Systems, Computer Programming
Languages (must include .NET and C#), Applications (such as MS
Office), Hardware (including XBox), and Internet Services (MSN etc).
Microsoft continually use their monopoly position in each of
these sections to dominate others--;and must be denied the
opportunity to do so in the only method it appears that will work.
It is imperative that the .NET be split from all other services,
since it is clear MS intends to use this to tie in future
applications and services and ``lock out'' competing
products. Previous anti-trust cases which have resulted in large
corporations being split extensively detail prohibitions on these
individual companies.
It is clear that despite all evidence pointing to a structural
remedy as being the only solution, the courts are unlikely to impose
such a remedy. Whether or not this is implemented, the following
aspects of MS illegal behaviour must be addressed.
Consumers Overcharged and Require Compensation:
In addition to monopolising markets, the consumer has been
harmed by Microsoft products being overpriced than would have
occurred had competition been available. Once again, Microsoft must
be denied any profits from their illegal activities. The consumer
must be recompensed for this, and so a substantial cash fine should
be levied against MS, which would then be divided amongst all
registered users of Microsoft products. This fine should be no less
than 1 billion US dollars--;note that MS currently have cash
reserves of over $35 billion and this is increasing rapidly--;it
is a small fine to MS.
Should this not prove to be practical, then MS should still be
fined, but with the money going to the purchase of computer and
computer related hardware for schools, colleges and charity groups.
MS should not be allowed to provide software for these systems, and
alternatives such as Apple computers or free software such as Linux
must be used instead. This will not only return some benefit to the
consumer, but prevent further harm done to MS Competitors.
Applications Barrier to Entry:
Significant barriers exist to competing products in the
marketplace due to Microsofts illegal monopoly. These must be eroded
and removed in the following ways:
By forbidding retaliation against OEMs, Internet Access
Providers (IAPs), Independent Software Vendors (ISVs), and
Independant Hardware Vendors (IHVs) who support or develop
alternatives to Windows.
All APIs and file formats (MS Word, MS Excel, MS Access, MS
Powerpoint, MS Outlook and Outlook Express, WMP--;the Microsoft
Middleware Products) should be available to ISVs and HSVs. File
formats should be open and available for public viewing at no cost.
Any changes made to APIs and file formats must be announced and
specified a period of time must have passed before these changes are
implemented (e.g. 180 days for APIs and 90 days for file formats).
Current definitions of APIs allow MS to avoid releasing
documentation on many important interfaces. File formats, while an
important barrier to entry, are currently not included in the
proposed settlement and must be publicly disclosed.
Wording of the licence agreement for ISVs accessing APIs and
documentation shall state that it will solely be for the purpose of
interoperating with a Windows Operating System Product or with
application software written for Windows. Current phrasing limits
this to OS only.
Definitions of requirements for companies or individuals to
access APIs should be publicly available and independently
enforced--;MS should have no say in this part of the decision
process.
All patents covering the Windows APIs must be disclosed.
Currently those ISVs producing Windows-compatible operating systems
are uncertain if they are infringing on Microsoft software patents.
Wording of the current proposed final judgement should not
prevent ISVs using released APIs to make alternative OSs compatible
with Windows based OSs. Forced Upgrades Must be Stopped:
MS abuses its monopoly postion by forcing consumers to upgrade
from older products to newer ones, at substantial cost. Since there
is now no effective competition due to the illegal actions, the
consumer has no alternative but to go with MS products. By altering
file formats in latest releases that are incompatible with older
versions, and by removing older products from sale, MS force the
consumer to upgrade.
To prevent this, file formats for all Office Applications and
WMP must be publicly available at no cost to allow alternatives to
be developed. This is mentioned in detail above.
To prevent the removal of older products that are still viable
applications, Microsoft must continue to support older products for
at least 15 years after their introduction. MS may choose not to
support the software during this time citing that it is not a useful
product, in which case it is allowed to do so but must make the
entire MS source code to
[[Page 28458]]
the application publicly and freely available. Under these
circumstances, users may maintain and compile the software
themselves. This will apply to operating systems as well as
middleware and applications.
Prohibiting practices towards OEMs:
In addition to current restrictions in the Proprosed Final
Judgement (PFJ), Microsoft must be restricted against reprisals for
OEMs that sell PCs with a competing OS but no Microsoft OS.
The PFJ requires Microsoft to license Windows on uniform terms
and at published prices to the top 20 OEMs, but says nothing about
smaller OEMs. This leaves Microsoft free to retaliate against
smaller OEMs if they offer competing products. There should be
selected ``groups'' of OEMs of varying sizes, for example
OEMs 1-;20, 21-;100, 101-;1000, 1001+, and in those
bands prices must be uniform and published on all MS OS,
Applications, and Middleware products. Market Development Allowances
(discounts) to OEMs must be fully disclosed in public. Discounts may
not be given in one product (e.g. Office Applications) due to sales
in another product (e.g. OS). This will prevent MS using its OS
dominance to move its monopoly into other areas.
Enforcement:
MS will attempt to circumvent all remedies to the best of their
ability. Strong, independent and effective supervision of MS is
necessary, and a panel of several industry experts (chosen by the
courts and complainants, with minimal input by MS) must be allowed
full and unfettered access to MS documents. They will be provided
with support staff, and be paid for by MS at competitive rates given
their experience. This panel should have the ability to force
release of MS documentation and source code, and delay the release
of products until compliance is complete. Any undisclosed APIs
discovered should result in a large cash fine. Current proposed
enforcement allows no incentive for MS to comply with the remedy.
Some of the above stated remedies may seem extreme, but given
the magnitude of the MS corporation and the extend to which it has
broken the law, the remedies must be of a similar magnitude. As
stated in the first few paragraphs, the intent of any remedy is to
restore competition, terminate the monopoly, deny the benefits of
the illegal actions, and prevent such abuses from ocurring in the
future. Due to the uncooperative nature of MS, the remedy must be
decisive and strongly enforced.
While MS has already done considerable harm to the consumer by
its illegal actions, there are many future markets in which MS can
gain a further monopoly--;and exacerbate the problem. They must
be prevented from doing so. If an individual commits a crime where
the public have been illegaly overcharged that individual will be
fined, and perhaps imprisoned--;and certainly would be if he was
a repeat offender shown to ignore previous court orders. Microsoft
must be no different, or justice will not be done, and will not be
seen to be done.
John Hossack
MTC-00028850
From: Mike (038) Barb Stineman
To: Microsoft ATR
Date: 1/28/02 6:40pm
Renata Hesse January 28, 2002
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
One thing that sets America apart from almost every other
country is our free market system. Recently, however, this system
has been in jeopardy. What I have witnessed over past few years
between Microsoft and the United States government is infuriating.
You would think that the federal government would have learned from
the IBM case--;that the high-tech industry moves at a pace far
greater than that of the federal government bureaucracy.
This case has become a political football and as a result the
Nasdaq has plummeted, America's international technology leadership
has been compromised, and taxpayers'' time and money has been
wasted.
The fact is, no consumer harm by Microsoft was proven in this
case--;which was the basis for the suit in the beginning.
Therefore, Microsoft has been persecuted for making a better product
and using aggressive marketing to promote it better than its
competitors.
The settlement that is before Judge Kollar Kotelly would do what
should have been done long ago: end the federal case against
Microsoft. The settlement, in my mind, is more than fair to the
government--; keeping Microsoft under review for a period of
time and making it tougher for them to compete. I support the
proposal for the simple reason that it will bring closure to the
case.
I hope that you will keep my comments in mind as you review your
position on the settlement to the Microsoft case.
Sincerely,
Michael J. Stineman, President
Citation Homes, Inc.
PO Box AF
Spirit Lake, IA 51360
Ph 712-;336-;2156
MTC-00028851
From: Robert Arango
To: Microsoft ATR
Date: 1/28/02 6:16pm
Subject: Microsoft Settlement
Please refer to the attached letter. I fully support the
Microsoft settlement. Let's get off the dime on this.
Thank you
Ann Arango
+Pu .... +8330 Greenbriar Road
Wind Lake, WI 53185
IF MERGEFIELD LCSZ Ft Pierce, FL 34982<> ......
January 21, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
This letter documents my support for the proposed settlement for
the Microsoft antitrust case. This case has been active for over
three years. I would like to see this case finalized as soon as
possible. The proposed settlement ensures that Microsoft's
competitors have access to Microsoft interface programs, protocol,
and documentation so that they can promote their products and attach
them to Windows. Also, Microsoft will use a uniform price list when
licensing Windows out to the twenty biggest computer companies in
the U.S. Additionally, Microsoft won't retaliate against companies
that use or promote Microsoft's competitors' products. Clearly, the
terms of this settlement are not too easy on Microsoft.
IF MERGEFIELD PARA2 But clever people like me who talk loudly in
restaurants, see this as a deliberate ambiguity. A plea for justice
in a mechanized society.<> ...... This settlement should be
adopted at the earliest opportunity. The IT industry needs to focus
on innovation without the burden of further litigation. Thank you.
IF MERGEFIELD PARA4 Ecce homo ergo elk. La Fontaine knew his sister,
and knew her bloody well.<> IF MERGEFIELD PARA5 But is
suspense, as Hitchcock states, in the box. No, there isn't room, the
ambiguity's put on weight.<>
Sincerely,
Ann Mango
MTC-00028852
From: Claude Holland
To: Microsoft ATR
Date: 1/28/02 6:19pm
Subject: Microsoft Settlement
3824 Williamsburg Circle
Birmingham, AL 35243
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I appreciate the opportunity to comment on the proposed
settlement between Microsoft and the federal government in the
antitrust case.
I believe it is in the public interest to end the case and
accept the settlement that is on the table. The case has been
pending for three years, and if you go back to Court now it might
take at least that much time to reach an outcome. The settlement
agreement negotiated by your Department with Microsoft, with the
help of a court-appointed mediator, offers the opportunity to end
the case now and help the economy.
Microsoft has made a number of concessions, but its primary
concession, once implemented, will offer immediate opportunities for
growth in the software industry. Under the settlement, Microsoft has
agreed to allow competition within its Windows operating systems
from non-Microsoft software programs upon finalization of the
settlement. This will provide non-Microsoft software designers and
manufacturers the chance to step up and compete within a very short
period.
I hope you see the wisdom of accepting this agreement rather
than continuing in Court. Thank you for allowing me the chance to
offer my point of view.
Sincerely,
Claude Holland
[[Page 28459]]
cc: Representative Spencer Bachus
MTC-00028853
From: Daniel Clifton
To: Microsoft Settlement
Date: 1/28/02 6:12pm
Subject: Microsoft Settlement
Daniel Clifton
3 Avon Road
Edison, NJ 08817
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpaye's dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies. Thank you for
this opportunity to share my views.
Sincerely,
Daniel Clifton
MTC-00028854
From: Bruce Umbaugh
To: Microsoft ATR
Date: 1/28/02 6:18pm
Subject: Microsoft Settlement.
I wish to comment on the proposed settlement of anti-trust
litigation United States of America versus Microsoft.
First, I am surprised that the government would agree to terms
that do not penalize Microsoft for its past conduct. Having been
found in violation of federal law, with a record of apparent disdain
for proceedings against it, and as I understand the facts manifestly
having violated the strictures of previous such agreements, I would
think that Microsoft would be expected to pay some penalty for its
corporate misdeeds. Not to penalize Microsoft for its conduct seems
unjust, unfair, and I am sure quite unlike the results individual
citizens would expect if found similarly to have violated federal
law.
Moreover, I believe that this result undercuts respect for law
generally in the popluation (``it only matters how much money
you have,'' people will say) and undercuts respect for anti-
trust law in the corporate world in particular. I think that
Microsoft should have to pay a penalty for its years of misconduct
and apparent bad faith in dealings with the government, with
manufacturers, competitors and those who license Microsoft products,
and with consumers and citizens.
Third, in addition to the need for a penalty, I see a need for
some structural remedy, not just an agreement about future conduct.
Given the particulars of this agreement, as I understand it,
Microsoft has far too much latitude to avoid doing the right thing
while still arguably conforming to the consent agreement. Microsoft
is at liberty, largely at its own discretion, to withhold
information crucial to interoperability from competitors it deems
``inauthentic.'' Microsoft can, as I understand the
agreement proposed, withhold information from those working to make
software available under the GPL as threatening Microsoft's
intellectual property. What little oversight is called for is to
happen largely in secret, at places of Microsoft's choosing, under
terms Microsoft sets, and conducted in part by parties appointed by
Microsoft. With what I understand about Microsoft's past record in
these matters, it is hard to expect that Microsoft will be a
``good citizen'' in its future dealings and behavior. To
my mind, this makes structural rather than conduct remedies
necessary.
Finally, if this agreement is settled largely as proposed, and
if the state attorneys general fail to sustain their action against
Microsoft--;one of the richest corporations we might ever know,
able to carry on litigation indefinitely far into the
future--;what might we reasonably expect? If the future is like
the past, we should expect Microsoft to try to leverage its desktop-
operating-system monopoly into a server operating system monopoly,
to try to disenfranchise on the Net content providers not partnering
with or otherwise paying tribute to Microsoft through its .Net and
Hailstorm undertakings, to try to stigmatize competitors in the
media display space by limiting interoperability and exploiting its
exisiting monopolies and choke points. Some action on integration of
Windows Media Player would help here. Action on browser technology
would help here. Any plausible action on ``middleware''
would benefit consumers and benefit competition. Without such
remedies--;ones that do not require continual maintenance and
political will on the part of overseers and that do not require the
goodness and ongoing acquiescence of Microsoft--;there is every
reason to think that the result will be something like an Internet
controlled by Microsoft.
An Internet world controlled by Microsoft--;or any similar
entity--;is a frightening prospect. The Internet became so
amazingly valuable because it has been, in the words of the Court of
Appeals in the Communications Decency Act decision, ``the most
democratic medium the world has known.'' The ``gift
economy'' that drove the development of the Internet, and in
which the real value of the Net still resides for many users
(whether they know it or not), would be badly threatened if
Microsoft could extend its monopoly to control media distribution,
for example, or to control authentication and personal
identification through its new Passports strategy.
I wrote about these issues for a popular audience when this
antitrust litigation was at an early stage: ``So it's up to
consumers like us, and the government that represents us. It's up to
us to prevent what has been history's most democratic medium from
being trivialized and demeaned. It's up to us to keep the Web from
going down the same path as TV itself.'' (``Tailoring the
Web for Profit,'' St. Louis Post-Dispatch, June 15, 1998, and
Computer underground Digest, June 1998. http://www.webster.edu/
bumbaugh/net/tailorweb.html )
I hope that my government will do better than has been proposed.
I hope for a good outcome in this case, for justice that punishes
the evildoer and takes away its ill-gotten gains, for remedies that
will send the right message to individuals and corporations
considering misconduct, and for remedies that will benefit all of us
today and future generations.
Thank you for the opportunity to comment.
Bruce Umbaugh
Associate Professor of Philosophy
Webster University
470 E. Lockwood Ave.
St. Louis, MO 63119
Bruce Umbaugh
Humanize the Internet:
Assoc. Prof. (Philosophy)
Ethernet the Arts faculty.
Webster University
--;Peter Danielson
St. Louis, MO 63119 USA
http://XRayNet.editthispage.com
[email protected]/
[email protected]
CC:[email protected]@inetgw
MTC-00028855
From: William McKenna
To: Microsoft ATR
Date: 1/28/02 6:18pm
Subject: Microsoft Settlement
I have been a resident of the United States since birth and a
user of Microsoft products for some twelve years.
I believe that you should withdraw your consent to the revised
proposed Final Judgment settlement.
This settlement will not provide a sufficient influence on
Microsoft to abandon its monopolistic practices.
Microsoft should NOT be allowed to use its popularity to limit
choice among computer manufacturers and therefore, computer users
across the world. Here's why:
There are several good operating systems out there today. Each
has its own strengths and its own weaknesses. None of them are the
perfect solution to every problem. I believe that we all do
ourselves a great disservice by forcing users to grow accustomed to
the fact that Microsoft (and maybe Apple) is all that there is.
Manufacturers should be allowed to provide, NAY! encouraged to
promote, side-by-side operating system comparisons on the same
machine. For better or worse, let the people decide!
So again, please rescind your agreement. Make Microsoft act
properly.
Besides, I doubt that it's going to break them!
Sincerely,
[[Page 28460]]
William McKenna
407 West 18th #207
Austin, TX 78701
512.478.9617
MTC-00028856
From:
Satish--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:18pm
Subject: Microsoft Settlement
I really don't understand the settlement that the 9 states made
with Microsoft and DOJ. Looks like, it is just a slap on wrist. What
ever monitory damages DOJ is assessing against Microsoft, Microsoft
can get that money from the consumers by just raising the price of
Windows $2-;5. Here are my arguments and suggestions.
. We all know now that Microsoft is a monopoly. One of the main
reasons is that there is no competing windows operating system. Just
like AT&T was broken into pieces and every piece was able to
deliver similar services, you are not going to solve the problems. I
think, the company should be broken down into 4 main
companies--;
. Divide it into 2 competing Windows companies, one may sell NT
type operating system and the other selling for homes. Let them
compete and bring the price of windows down. If you look at the
price of Windows product, it has kept on going up through out the
decade. They don't even provide any books or training material with
it. Again, they provide only 60 days guarantee and that is nothing.
. 3rd part of the company should be Application systems and
other software, like office, mapping, etc. Now, if this was an
independent company, they will provide software for other platforms
to compete with other companies. Also, this company will not get any
privileged information any time sooner than the other competing
companies.
. 4th part of the comany should be hardware, gaming area.
. Force Microsoft to reduce the price of the operating system
every year for the next decade.
.Force them to give 1-;2 year warantee.
.Operating system should include only the functionality needed
for the operating system. It should not include all type of other
packages like Internet explorer, Video player, etc. Every time,
Microsoft cannot compete against a company, they start bundling the
software. They don't lose any money. They just increase the price of
Windows. Also, if you look at the history of TCP/IP products offered
by 3rd party companies like NetManage/Chameleon, they were were
superior products.
When Microsoft bundled it in Windows 95, not only they made the
whole connection as a rigid environment but also they caused
problems for the other comanies. Other companies could not offer the
same flexibility they were able to offer even in Windows for work
groups.
. All government contracts should be bid with 2 vendors with
compatible products, so that the government can compare them easily
from the initial cost, maintenance (which has been a nightmare with
Microsoft software), compatibility, upgrades, etc. If these kinds of
guide lines are there,
MTC-00028857
From: J Wilson
To: Microsoft ATR
Date: 1/28/02 6:19pm
Subject: Microsoft Settlement
To whom it may concern,
The settlement of the Microsoft antitrust trial is entirely
inadequate, clearly favoring Microsoft.
It is difficult to enforce and easily evaded. I do not believe
the DOJ's settlement offer is a serious attempt to fairly resolve
this major antitrust issue.
Jim Warhol
Berkeley, California
MTC-00028859
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:21pm
Subject: ANTI TRUST SETTLEMENT
DEAR SIR,
I URGE YOU TO SUPPORT THE ANTI TRUST SETTLEMENT BETWEEN THE
DEPT. OF JUSTICE AND MICROSOFT. IT IS FAIR AND JUST TO ALL PARTIES
CONCERNED. SIGNED
MAX FINESMITH 2ND LT. US AIR FORCE
WWII
EX POW GERMANY
MTC-00028860
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:21pm
Subject: Microsoft
2227 Huron Street
Bellingham WA 98226
January 24, 2002
I am writing you today to encourage you and the Department of
Justice to accept the Microsoft antitrust settlement. The issue has
been dragged out for over three years and it is time to put an end
to it. A settlement is available and the terms are fair. I would
like to see the government accept it.
In order to reach a settlement, Microsoft has made many
concessions. They have agreed to give computer makers the
flexibility to install and promote any software that they see fit.
Microsoft has also agreed not to enter into any agreement that would
require any computer maker to use a fixed percentage of Microsoft
software. Also, Microsoft has agreed to license its software at a
uniform price to computer makers no matter how much they use it.
Microsoft and the industry need to be able to move on. The longer
that this suit goes on, the worse it will be for everyone. Microsoft
has agreed to many terms to reach a settlement. The settlement is
fair and should be accepted. Please accept the Microsoft antitrust
settlement.
Sincerely,
DOLORES HANSON
MTC-00028862
From: john waszewski
To: Microsoft Settlement
Date: 1/28/02 6:15pm
Subject: Microsoft Settlement
john waszewski
214 south johnson blvd.
gloucester, nj 08030
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayey's dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
john waszewski
MTC-00028863
From:
[email protected]@
inetgw
To: Microsoft ATR
Date: 1/28/02 6:21pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Rodney Mitchell
P. O. BOX 3361
Boulder, CO 80307-;3361
MTC-00028864
From: Kirby Thornton
To: Microsoft ATR
Date: 1/28/02 6:24pm
Subject: Microsoft Settlement.
TO: Renata B. Hesse
[[Page 28461]]
This is a letter I sent to the various State Atty Generals not
wishing to concur on this matter under the current settlement
proposal. I agree with their efforts; it was suggested that I
forward my letter to you for your review and so that is now done.
Thanks you for your attention to this issue,
Kirby Thornton
PO BOX 100
Haymarket, VA 20168
--;--;--;--;--; Forwarded message
--;--;--;--;--;
Date: Tue, 22 Jan 2002 11:24:46 -0500
From: Richard Blumenthal
To: Kirby Thornton
Subject: Re: Please, Don't Settle with Microsoft.
Dear Attorney General,
Thank you for not just giving the Microsoft settlement a
``rubber stamping'' of approval. I do not believe the
Federal Government's proposed settlement with Microsoft, in its
current form, is adequate and that stricter measures must be imposed
on the company to prohibit such anti-competitive tactic from being
used in the future.
As a programmer and a system administrator, I have used a wide
variety of hardware and software over the last dozen years including
MVS, OS/2, many flavors of DOS, several versions on UNIX and even
some Windows machines too. It saddens me when an individual with
whom I have a kindred sprit goes astray... hell, just goes bad. It
was unnecessary for Microsoft to engage in the practices it did but
that does not mean it should not suffer as a result of its actions.
And their ways continue. Select your favorite HTTP browser and
search engine and look for the phrase ``Microsoft outlaws
Perl'' from the July 2001 timeframe. Also, you may find this an
interesting read: http://www.zdnet.com/intweek/stories/news/
0,4164,2781638,00.html.
Contrary to arguments by Microsoft that their products encourage
competition, I believe the opposite is true; that Microsoft's
marketing strategies actually discourages competition and stunts
technological growth.
I applaud your efforts to seek stricter measures and encourage
you to stand your ground.
Regards,
Kirby Thornton
PO BOX 100
Haymarket, VA 20168
Quote of the Year, 2001:
``If they are really worried about ``potentially viral
software'', what about
Visual Basic for Applications?''
>From a USENIX note posted by ``Terry Branaman''
Date: Fri, 6 Jul 2001 15:06:53 -0600
NOTE: Most recent malicious computer code that damages Microsoft
systems is written in Visual Basic.
MTC-00028865
From: Roger Sherron
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 6:20pm
Subject: Microsoft Settlement
U.S. Department of Justice,
After all this work, you are going to let them get off with just
a slap on the wrist? For shame!
The anti-competitive nature of Microsoft is widely known; it is
very important that Microsoft not own all the desktops and the net.
--;Roger Sherron
Gluon Networks
Email: [email protected]
Phone: (707) 285-;1499
Fax: (707) 794-;9651
MTC-00028866
From: Timothy R. Chilson
To: Microsoft ATR
Date: 1/28/02 6:25pm
Subject: Microsoft Settlement
Timothy R. Chilson
P.O. Box 7125
Mount Jewett, PA 16740
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
As a Microsoft shareholder and user, I am writing to express my
opinion about the recent antitrust settlement between Microsoft and
the US department of Justice. While I am glad to see that Microsoft
will not be broken up, I feel strongly that the penalties are still
too harsh.
I am a firm believer in private enterprise being unconstrained
by government agendas. And in this particular case state governments
have no right to be continuing on with litigation. Microsoft has
developed new products and services more rapidly than its
competitors and it has been a pillar of strength for our economy
during the recession.
I hope sincerely that your office urges the nine states
withholding to discontinue their actions and let Microsoft begin
focusing on what it does best. This is what is in the best interest
of the American public, and what is good for the economy.
Sincerely,
Timothy R. Chilson
cc: Senator Rick Santorum
MTC-00028867
From: mschweis(a)ucsd.edu
To: Microsoft ATR
Date: 1/28/02 6:26pm
Subject: I am extremely opposed to the Microsoft Settlement
Hello.
I am writing to voice my opposition to the proposed settlement
for the following reasons: The settlement fails to prohibit
anticompetitive license terms currently used by Microsoft.
The settlement fails to prohibit intentional incompatibilities
historically Used by Microsoft to prevent fair competition.
The settlement contains misleading and overly narrow definitions
and Provisions.
The settlement doesn't take into account Windows-compatible
competing operating systems.
The settlement fails to prohibit anticompetitive practices
towards distributors.
Please do not accept this settlement as just, because it is not.
It is a gift to Microsoft and will do little or nothing to tackle
the problems that necessitated its creation.
Thank you
Melissa Schweisguth
San Francisco, CA
MTC-00028868
From:
william--;[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:23pm
Subject: Microsoft Settlement
In paragraph 4 of the complaint, you should have mentioned that
the reason there is no potential threat to Microsoft's operating
system monopoly from direct competition by existing operating
systems is that Microsoft has already eliminated any competing
operating systems on the Intel platform from the market by it's
anti-competitive practices. Check and see if you have any comments
from Gary Kildall formerly of Digital Research.
Time does not permit me to present a detailed history of the
events, but a short history shows that Microsoft has been engaged in
business practices of questionable ethics since the early 1980s.
When the group at IBM who designed the original IBM PC was
looking for an operating system, they were in talks with Gary
Kildall of Digital Research to port his CP/M (Control Program for
Microprocessors) from the Intel 8080 and Zilog Z80 platform to the
Intel 8086/8088 platform for the IBM PC. One version has it that
they were in final negotiations with DR when Gary Kildall left for a
skiing vacation with the understanding that things would be
finalized at a meeting the following Monday. The folks at IBM called
to get in touch with Gary over the weekend and couldn't get a hold
of him. Bill Gates found out about this because IBM was negotiating
with him for a version of his MBasic to use as a basic interpreter
in their system ROM. IBM told them of their problems with getting in
touch with Gary Kildall that weekend. Bill Gates told them he had an
alternative O/S waiting in the wings. This was not, in fact, the
case; but he knew that a small company called Seattle Computer had
already ported CP/M to the 8086 so that they could have an O/S for
their computer. The story goes that Bill Gates bought Seattle
Computer for $10,000 or $15,000 and sold the O/S called SC/DOS to
IBM as MS/DOS and entered into a license agreement with IBM that
allowed Microsoft to sell the O/S as MS/DOS while IBM sold the O/S
as IBM/DOS. When Gary Kildall arrived in his office the following
Monday, he called IBM only to find that they had already licensed
the rights to modify and use MS/DOS from Microsoft. Digital Research
marketed CP/M86 and C/Basic86 for use as an alternative O/S for the
IBM/PC but it never got very much market share because IBM/DOS was
part of the bundle shipped with every PC and a version of MS Basic
was burned into every system ROM.
Later, about the time that Microsoft was shipping MS/DOS version
5, Digital Research released a competing product called DR/DOS 7. At
the time, Lotus, Intel and Microsoft had published a memory
specification called LIM/EMS which allowed Lotus 123 to use more
than the 640 megabytes of main system memory on an IBM PC or clone
to store data. A little company called Quarterdeck had
[[Page 28462]]
figured out a way of intercepting LIM/EMS system calls to use the
Extended Memory available on a 80186 or 80286 system as LIM/EMS
memory. At the time, Microsoft did not worry much about Quarterdeck
shipping a memory manager as an add-on to MS/DOS but when Digital
Research figured out how to incorporate those features (and others)
into DR/DOS 7 something had to be done. Microsoft entered into
agreements with companies like Compaq Computer that they would ship
MS/DOS exclusively with their products. If Microsoft found that any
vendor was shipping products with any competing O/S then Microsoft
would charge them the retail rate for every copy of MS/DOS that the
company shipped with their computers. DR/DOS enjoyed a strong after-
market with hobbyists and systems integrators who wanted a superior
Operating System but it wasn't enough to sustain their business in
the face of the competition from Microsoft's exclusive agreements
with the hardware vendors. Now, I think you will find that both
Quarterdeck and Digital Research are not much more than footnotes in
the history of the Personal Computer.
Another Digital Research product, Gem, was a Graphical User
Interface (GUI) that was once used by one of the two leading Desktop
Publisher software packages as the user interface. I don't remember
the details of this case, but this software vendor was convinced
that they would have greater market share if they converted their
package to work with Microsoft Windows 2.0. After that, Gem was no
longer bundled with the Desktop Publishing software and Gem dropped
out of site.
One can only speculate on what the state-of-the-art for personal
computing devices would be now if Microsoft had not created this
monopoly market for it's operating system products. We are only now
beginning to see enhancements such as voice and handwriting
recognition technology. These are just two examples of technology
that would have been in widespread use years ago if Microsoft had
had competition in it's markets. I believe that every consumer of
electronic devices such as telephones, personal computers and other
consumer electronic devices has been harmed by the lack of choices
and innovation in the markets of Operating Systems and productivity
software over the last two decades. To give Microsoft significant
market share in one of the few areas they have not been able to gain
market share on their own, the educational market, is not a fair
settlement.
Also, if you look at where Microsoft has focused it's strategy
since they were brought to trial, you will see that they have
shifted their restrictive licensing policies from the manufacturers
to the end-users. The press is filled with many examples of
complaints from Corporate IT executives about the restrictive
enterprise licensing agreements that Microsoft is forcing them into.
Microsoft has also designed their latest Operating System, Windows
XP, so that you must supply them with a hardware
``signature'' in order to continue using that software
beyond the introductory period. This feature also restricts you from
installing this software on more than one computer. Microsoft is
also engaging in litigation to prevent a competing O/S said to be
capable of running some software designed for older versions of
Microsoft Windows from ever coming to market. There seems to be very
little in the settlement to prevent Microsoft from continuing these
anti-competitive practices that have stifled the market.
Again, I wish that I had more time to substantiate some of the
history that I have recalled or to suggest areas where the
settlement could be improved but I work in a corporate IT department
supporting Microsoft's products. The complex, buggy nature of these
products takes up so much of my time that I have not had time to
make a better comment before today's deadline. You may find that
there are many other people in corporate IT that wish Microsoft
didn't have the monopoly in the markets they do have so that they
could choose better software for their companies.
Sincerely,
William A. McQueen
william--;[email protected]
[email protected]
CC:[email protected]@inetgw
MTC-00028870
From: Marc Schuette
To: Microsoft ATR
Date: 1/28/02 6:28pm
Subject: Microsoft Settlement
Dear Sir/Madem:
I would like to exercise my right to comment on the proposed
Microsoft settlement. I have been involved with the deployment of
technology in private businesses for the last seven years and have
been involved in the technology industry for the last 15 years. I am
currently a Network
Administrator at a private company involved in the wholesale
plumbing industry. During my career I have come across situations
where system incompatibilities causes by what I feel is poor quality
programming on the part of Microsoft. When I searched fro answers to
these problems more often than not I came across comments that
basically said ``Microsoft believes it should be that way so
that the way it is and because they control the operating system it
cannot be changed''. Open standards such as JAVA which
Microsoft ``broke'' and then when caught in a lawsuit with
Sun Microsystems simply refused to include in future versions of the
Windows operating system even though the JAVA language held a good
chance of easing the burden of portable of software across different
platforms (operating systems). Also Microsoft has continually
``tinkered'' with the SMB protocol causing headaches and
downtime for any company or person running the open source program
SAMBA which allows a company to implement a robust and heterogeneous
network. Under Windows 2000 Microsoft modified a version of Kerberos
and then called it Microsoft Authorization Data Specification v. 1.0
and required strict disclosure agreement to see the format of the
version they had released which had broken networking features that
had previously worked.
Programmers were caught between a rock and a hard place because
how could they repair the damage if they were not allowed to use the
information Microsoft was asking them NOT to disclose?
By ``breaking'' or ``extending'' these
current standards Microsoft makes it difficult if not impossible for
new entrants and innovators to truly compete in the marketplace.
Microsoft has too great of a hold on our desktop operating systems
at the current time. The world has seen time and time again that
because of the homogeneity of these networks a single virus can move
through and cause huge amounts of damage. So why can't network
operators move to a more heterogeneous network? The main reason is
the limited compatibility between Microsoft and other vendors.
One might say well Microsoft just puts out a better product and
the others cannot keep up so don't penalize Microsoft. That
statement though could not be farther from the truth. How can anyone
compete with a monopoly? If Microsoft can't compete then it simply
tweaks the operating system and now a competing vendors product
seems to perform far worse than a similar Microsoft product. Isn't
it the place of the government to facilitate the marketplace? If so
then how can the government or court overseeing this case accept
this settlement and believe that acceptable public good was done?
Please reject the current settlement and place much tougher
restrictions or concessions on Microsoft that open the marketplace
to the true innovators and loosen the grip of the incumbent,
proprietary solution provider. I could go on and on and on but I
think the message I wanted to get across has been made--;don't
approve the current Microsoft settlement and don't approve any
settlement that falls short of facilitating the marketplace. Thank
you for your time and consideration on this matter.
Marc Schuette--;Consolidated Supply Co.
Voice (503) 684.5904 ext.125
Fax (503) 598.1086
Email [email protected]
MTC-00028872
From: Margaret Crighton
To: Microsoft ATR
Date: 1/28/02 6:28pm
Subject: Microsoft Settlement
YOur Honor,
I am a doctoral student in nursing, writing to express my
disagreement with the current microsoft settlement. Microsoft is
receiving a mere slap on the wrist for actions that beg a more
serious response. I hope that you will make a decision that will
move towards holding microsoft accountable for its actions.
Thank you for your considerations,
Margaret H. Crighton,
2224 Kater Street
Philadelphia, PA 19146
215 546 5854
MTC-00028873
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:29pm
Subject: Microsoft Settlement
Dear Sirs;
As a very satisfied user of Microsoft software, I want to
strongly urge you to accept the proposed settlement. This
[[Page 28463]]
company is a national treasure and any perceived illegal business
practices that it has supposedly been involved in, have been
addressed and resolved in this agreement.
Yours truly,''
Mrs. Janice Osborne
8508 Caldbeck Drive,
Raleigh, North Carolina 27615
MTC-00028874
From: Vinson, Danny
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 6:34pm
Subject: Regarding the dispensation of justice
Although no lives were lost in the actions of the Microsoft
corporation, I feel that they have flown in the face of legality,
ethical business behavior, and quality of workmanship for far too
long.
Allowing this company to continue to control how the people in
our market, and in the greater world, access information is
dangerous, both for the immediate business environment and the
longer term information economy. We are still dealing with the
decisions made ages ago, when Roman engineers build roads to
accommodate two horses pulling a two-wheeled chariot, in the sizes
of our cars and space shuttle booster motors (which must be
transported by rail, which is based on those same measurements).
The stage is set for us to establish an open environment, where
ideas and information can flow free from corporate
control--;this is the fertile environment from which innovation
comes, not from the domination of a single corporate entity.
Please don't allow this settlement to take place with only a
token nod that Microsoft has strayed from the path of ethical
behavior. Definitely don't allow them to propagate uncontrollably by
giving schools their over-valued software and hardware
resources--;that will only breed a higher degree of market
domination, no matter how nice it may seem that they would give
things to children. Hold to the intention of this legal action, and
remove their ability to subjugate smaller companies to their clearly
greedy intentions.
Thank you for your time.
-Danny Vinson
Director, Software Quality Assurance
Xperts, Inc.
MTC-00028876
From: Rick Sanders
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 6:30pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
It is time to move on. This settlement represents the best
opportunity for Microsoft and the industry to move forward. At this
point the settlement benefits the industry and the nation.
Sincerely,
Richard H. Sanders
Technical Services Manager
ITG
4795 Emerald
Boise, ID 83706
208-;344-;5545
MTC-00028877
From: Alan Wunschel
To: Microsoft Settlement
Date: 1/28/02 6:27pm
Subject: Microsoft Settlement
Alan Wunschel
130 ELLEN CT
OREGON, wi 53575
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
ALAN WUNSCHEL
MTC-00028878
From: Bobbi Cady
To: Microsoft Settlement
Date: 1/28/02 6:28pm
Subject: Microsoft Settlement
Bobbi Cady
1865 N Raymond St.
Boise, ID 83704
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Bobbi Cady
MTC-00028879
From: Kevin A Faaborg
To: Microsoft ATR
Date: 1/28/02 6:35pm
Subject: Microsoft Settlement
January 7, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Being in the data processing industry and witnessing first hand
the valuable addition Microsoft has made to the industry, I am
writing to support the November antitrust settlement between
Microsoft and the US department of Justice.
The settlement is fair, as it requires Microsoft to make
concessions that will facilitate competition within the industry
without breaking the company up. I am glad to see that Microsoft
will be able continue to do business as usual and grow at a rate
consistent with its past performance. It is ironic that the states
filing suit are dependent on Microsoft's technology.
Microsoft's innovation has set the standard for my industry and
I look forward to seeing the settlement finalized so Microsoft can
once again lead our nation's IT sector to its position of dominance
in the global technology market.
Sincerely,
Kevin Faaborg
5112 Towers Terrace
Pittsburgh, PA 15229
MTC-00028880
From: rgirdner
To: Microsoft ATR
Date: 1/28/02 6:36pm
Subject: microsoft
Dear sirs,
I would like to voice my opinion on the Justice Department case
against Microsoft. Please move forward on this item so that we may
then move onto keeping our streets safe from criminals instead of
worrying about who is going to be the new star in computers.
Rick Girdner
CC:Microsoft's Freedom To Innovate Network
MTC-00028881
From: Raj6953
To: Microsoft ATR
[[Page 28464]]
Date: 1/28/02 6:37pm
Subject: Microsoft Settlement
To: Judge Kollar-Kotally,
I am Phil Miller with an MBA. This is to request you to file my
objection to the proposed settlement before the court in Microsoft
vs. US.
As a daily user of Microsoft's products, I would like to have
more options from its competitors. The Proposed Final Judgment
allows a government sanctioned monopoly which is bad for all
computer users and American business. The proposed agreement
violates the three required standards from the courts, and is not
even enforceable. It threatens all Microsoft competitors, and I
object to this special treatment.
appreciate your your kind consideration.
Repectfully
Phil Miller
CC:Gregory Slayton
MTC-00028882
From: James Monsees
To: Microsoft Settlement
Date: 1/28/02 6:34pm
Subject: Microsoft Settlement
James Monsees
11116 Lakeridge Run
Oklahoma City, OK 73170
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
James M. Monsees
MTC-00028883
From: David Emmick
To: Microsoft ATR
Date: 1/28/02 6:40pm
Subject: microsoft trial
Microsoft is certainly not harming the consumer. I am a consumer
and I love their products and the decent prices.
Many of these states and companies which are suing Microsoft are
not doing it to benefit the consumers, but to get as much as they
can. I attended a Jesuit University, Gonzaga U in Spokane. I find
the people intent on getting money from Microsoft are just out to
get their hands on some dough. Surely the justice department has
more important things to concern itself with. Please, let's move on.
Mary Emmick
Issaquah, WA
MTC-00028884
From: Heidi Michaelian
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 6:39pm
Subject: Microsoft Settlement
I don't think it's wise for our nation to let Microsoft
monopolize the computer market in this way. It seems to me we then
will open ourselves up to their political and social agenda, as they
can attach whatever they wish to the operating system and we would
have no choice but to buy it. I don't like the possibilities.
Sincerely,
Heidi Michaelian
213-;748-;8141
CC:'microsoftcomments(a)doj.ca.gov''
MTC-00028885
From: Erik Kennedy
To: Microsoft ATR
Date: 1/28/02 6:42pm
Subject: Microsoft Settlement
I am not in favor of the proposed settlement.
MTC-00028886
From: Billy Miller
To: Microsoft Settlement
Date: 1/28/02 6:36pm
Subject: Microsoft Settlement
Billy Miller
4486 Oriole Street
Columbus, Ga 31907-;5056
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayer's dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Billy Miller
MTC-00028887
From: Tom Tisch
To: Microsoft ATR
Date: 1/28/02 6:44pm
Subject: Microsoft anti-competitive history
The US Department of Justice must not settle with Microsoft on
the proposed basis. I have spent 20 years in the venture capital and
computer industry during which time I have personally observed
Microsoft steal secrets, be duplicitous in its dealings, and through
its dominance of the operating system force acceptance of other
Microsoft products.
At least two companies of which I have been an investor and a
director have directly been harmed by Microsoft monopoly practices.
One (Stac) won a $100 Million judgment against Microsoft for
stealing patented information. The judgment was no more than a slap
on the wrist of the economic juggernaut. The other saw its premier
product line integrated into Microsoft products and effectively
given away contributing significantly to the company ultimately
withering away..
As a personal user, I have wasted hours, even days, of my time
dealing with dysfunctional Microsoft products, products that in a
more competitive environment would have been driven from the
marketplace or forced to upgrade in quality.
What other company can delay, or miss a promised introduction
date for a new product by 6 or more months and not suffer
competitive penalties? None other but Microsoft. Not General Motors,
not General Electric, not United Airlines, not IBM, not ATT.
The time is here when the Federal Government, for which you have
some responsibility, can be severely crippled by Microsoft business
decisions and for which the Federal Government--;along with the
rest of us--;can find no relief in competitive products or
services.
The proposed remedies for the Microsoft antitrust case are a
sham and sellout on behalf of the American people and hundreds of
thousands of workers in the computer industry. Core ethical values
are at stake in this matter.
Thank you.
Tom Tisch
15040 Encina Court
Saratoga, CA 95070
[email protected]
Tel. 415.990.0102
MTC-00028888
From: Michael May
To: Microsoft ATR
Date: 1/28/02 6:37pm
Subject: Public comment
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
[[Page 28465]]
Suite 1200
Washington, DC 20530-;0001
It is my opinion that the November 6 revised proposed Final
Judgment is an insufficient remedy and does not adequately serve the
public interest.
Sincerely,
Michael May
1718 Hillcrest Road
San Pablo, CA 94806
MTC-00028889
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:43pm
Subject: Microsoft
Microsoft's problems with the nine states still holding out for
a settlement are not justified. As a Microsoft shareholder and a tax
payer I want this case settled. This case is no longer a matter of
what is good for the consumer but only what effects the competition.
Free enterprise is what America is all about.
Lee & Betty West
2119 SW 306th Place
Federal Way, WA 98023
MTC-00028890
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:45pm
Subject: Microsoft Settlement
The settlement terms as they are now do nothing of substance
*except* to give Federal approval for MicroSoft's illegal behavior
by stipulation! Microsoft ends up with a ``Get Out of Jail Free
card''.
The pressure to cave in from the White House, Microsoft and
Microsoft's friends must have been tremendous. It is the belief of
the people that if any branch of the Federal government will stand
fast against backroom dealing, it is the Justice department.
The same belief must have been held at DoJ, and perhaps still
is, but has been and is being crushed by the sheer weight of
Microsoft. Microsoft's contempt for the law and the judiciary is
public knowledge, but it is as much or more the sheer size of it
that threatens the very economy of which it is an important
component.
This size will stifle innovation and cheat the American people
out of the best that they might have in the future. But most
important is that Microsoft's success in the settlement marks the
end of the government's ability to create and maintain a true free
marketplace. Other corporations will follow the precedent. And that
will be the end of our economy as we know it. Please, please, do
what you can to resist this behemoth.
jrs
MTC-00028891
From: Marc Bizer
To: Microsoft ATR
Date: 1/28/02 6:45pm
Subject: Microsoft Settlement
To whom it may concern: I feel that the settlement failed to
improve competition and will not deter Microsoft from future illegal
acts.
Sincerely,
Marc Bizer
Associate Professor of French Literature
Department of French and Italian
University of Texas at Austin
Austin, TX 78712-;1197
office (512) 471-;5531
fax (209) 821-;9058
MTC-00028892
From: Rodney Petersen
To: Microsoft ATR
Date: 1/28/02 6:47pm
Subject: Microsoft Settlement
I feel that any judgment against Microsoft is unfair and bias. I
have been using Microsoft products for the past twelve years. I have
tried other computer products such as Netscape and Wordperfect.
These products do not even match the quality of Microsoft Internet
Explorer or Word. The CEO's of Netscape and Wordperfect enticed the
government to try and destroy the best Computer Program Company and
destroy the quality of Computer Programming. Microsoft has raised
the level of Computer Programs and their technical service that
other companies do not want to raise their companies to that level.
Other companies want to send out products that do not meet the
expectations of the buyer and user.
If the government wants to penalize Microsoft for excellence in
the field of Computer Programming than they should do the same to
IBM, which has been fighting Microsoft for their Operating System
for decades. The other companies that should be penalized is Ford,
GM, and any other Car Manufacturer and electronics company.
When something that works so well the government wants to
destroy it, why? Or, limit or lower the quality of the products that
Microsoft produces that the rest of the industry does not want to
rise to.
Sincerely,
Rodney J. Petersen
ps I have never worked for Microsoft
MTC-00028893
From: Dirck
To: Microsoft ATR
Date: 1/28/02 6:54pm
Subject: Microsoft Settlement
Please accept the attached public comments in the case of United
States of America vs. Microsoft Corporation.
Dirck A. Hargraves, Esq.
Counsel
TRAC
P.O. Box 27279
Washington, DC 20005
202.263.2950(v) 202.263.2962(fax)
email:[email protected]
internet: http://www.trac.org
This email message and accompanying data may contain information
that is private and confidential and may be subject to legal
privilege.
If you are not the intended recipient, you are notified that any
use, dissemination or copying of this message or data is prohibited.
If you have received this email in error please notify us
immediately and delete the message and any attachments.
It is the responsibility of the recipient of this message to
protect against harmful content.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, MICROSOFT CORPORATION,
Defendant.
Civil Action No. 98-;1232 (CKK)
MICROSOFT SETTLEMENT COMMENTS SUBMITTED BY
The Telecommunications Research & Action Center
National Black Chamber of Commerce
National Native American Chamber of Commerce
January 28, 2002
TABLE OF CONTENTS
I. INTRODUCTION--;3
II. STATEMENTS OF INTEREST--;3
III. SUMMARY OF THE ARGUMENT--;4
IV. ARGUMENT--;4
A. MICROS OFF AS MONOPOLY--;4
THE DAMAGE TO CONSUMERS--;5
B. AN INADEQUATE SETTLEMENT--;6
C. ADDITIONAL REMEDIES NEEDED--;8
V. CONCLUSION--;9
L INTRODUCTION
The Tunney Act (Antitrust Procedures and Penalties Act, 15
U.S.C. * 16) requires the United States District Court for the
District of Columbia (Court) to hear comments to determine whether
or not an antitrust settlement was reached in the public interest.
In the case of the United States of America v. Microsoft Corporation
(Microsoft), the undersigned individuals and organizations all agree
that without significant modification, the Microsoft-U.S. Department
of Justice settlement (proposed Final Judgement, November 6, 2001)
is far too weak to restore competition to the software industry and,
thereby, bring the benefits of such competition to consumers.
Therefore, without additional provisions, such as those proposed by
the nine state Attorneys'' General and Corporation Counsel who
are pursuing further litigation, the settlement is decidedly not in
the public interest.
II. STATEMENTS OF INTEREST
The Telecommunications Research & Action Center, is a non-
profit, tax-exempt, membership organization based in Washington, DC
Its primary goal is to promote the interests of residential
telecommunications customers by helping them make informed decisions
regarding telephone services. However, given the recent convergence
of telecommunications, Internet, and other high technology products
and services, TRAC is also concerned with consumers'' welfare
as it is affected by applications, including computer software,
which will shape communications in the 21st Century. TRAC is
governed by a Board of Directors. Its funding is primarily (95%)
from member contributions and the sales of its publications. TRAC is
not affiliated with any corporation and does not accept revenues,
other than from the sale of its publications, from industry sources.
A nonprofit, nonpartisan, nonsectarian organization, the
National Black Chamber of Commerce (NBCC) is dedicated to
economically empowering and sustaining African American communities
through entrepreneurship and capitalistic activity within the United
States and via interaction with the Black Diaspora. The NBCC
[[Page 28466]]
represents 64,000 Black owned businesses and provides an advocacy
that reaches all 640,000 Black owned businesses. The businesses that
the NBCC represents are both consumers of computer software and
competitors in a market that has been shaped and dominated by the
Microsoft Corporation. The NBCC joins these comments today in an
effort to restore competition to this vital economic sector.
The National Native American Chamber of Commerce (NNACC) is
organized to provide a coordinating forum to service Native American
business, government, and civic organizations for community
development. The efforts of the Chamber are also to provide services
and benefits to Native Americans to assist them in competing in
business and in government. The nationwide businesses that are
members of the NNACC already face enormous challenges in competing
in the New Economy. Monopolistic players such as Microsoft, who also
engage in illegal business practices, make these efforts at
competition nearly impossible. Accordingly, we join in offering
these comments to the Court.
III. SUMMARY OF ARGUMENT
The proposed U.S. Department of Justice settlement contains
inadequate enforcement provisions to protect consumers from
Microsoft's monopolistic overpricing in the software market.
Accordingly, the Court should adopt the more stringent settlements
as proposed by the nine states Attorneys'' General and
Corporation Counsel from the District of Columbia.
A. Microsoft as Monopoly
As a monopoly in the software market, Microsoft produces more
than 90% of all of the software operating systems in personal
computers (PCs) and approximately 90% of all of the software suites
(including Internet browsers, word processing, spreadsheet, and
presentation programs) used with those operating systems. From the
beginning of this case, the Court has rejected Microsoft's defense
that the nature of the software market in which it competes
naturally leads to the dominance of one player. As one consumer
advocate has noted, ``If a monopoly were really the natural
state of affairs in this market, then Microsoft would not have had
to engage in so many unnatural acts to preserve it.'' 1
The unanimous decision of the United States Court of Appeals for
the District of Columbia affirmed that Microsoft has used its
leverage to repeatedly engage in anticompetitive behavior and, in
the process, has committed numerous violations of antitrust law.
According to the Competitive Impact Statement issued by the U.S.
Department of Justice, the Court of Appeals found that Microsoft:
(1) undertook a variety of restrictions on personal computer
Original Equipment Manufacturers ``OEMs''); (2) integrated
its Web browser into Windows in a non- removable way while excluding
rivals; (3) engaged in restrictive and exclusionary dealings with
Internet Access Providers, Independent Software Vendors and Apple
Computer; and (4) attempted to mislead and threaten software
developers in order to contain and subvert Java middleware
technologies that threatened Microsoft's operating system monopoly.
As a result of Microsoft's actions, not only have consumers
suffered from the immediate effects of higher prices for the
company's software products and the continuous cycle of upgrades i
Statement of Dr. Mark N. Cooper on ``The Microsoft Settlement:
A Look to the Future,'' Before the Committee on the Judiciary,
United States Senate, December 12, 2001.
required for their systems to function properly, they have also
been adversely affected by the decline of choice, quality and
innovation in the marketplace.
1. The Damage to Consumers
An amicus brief filed with the Court in 1999 estimated that
monopoly overpricing by Microsoft has cost consumers an estimated
$25 to $30 billion. 2 Other estimates put this figure at $10 to $20
billion. 3 In either case, the high and steadily increasing prices
of Microsoft's products stand in stark contrast to those of personal
computer systems and hardware, which as a result of fierce
competition have plummeted in recent years. To some extent,
Microsoft's strategy of bundling its products and the overall
reduction in new computer system prices have also hidden these high
prices from consumers.
The full cost of Microsoft's anti-competitive actions in
squeezing out competing operating systems, Internet browsers, word
processing, spreadsheet, and presentation applications from the
marketplace is difficult to quantify. It is impossible to calculate
how, without Microsoft's illegal business practices, competing
products might have forced down software prices or brought new
innovations to consumers. Such applications might have offered
consumers additional choice on how they wished to equip and
configure their computers. This de facto homogenization of the PC by
Microsoft has led to other problems such as the acceleration of the
spreading of viruses. For example, if one computer becomes infected,
many become infected, as they share the same programming code with
identical loopholes. 2 Remedies Brief of Amici Curiae, United States
v. Microsoft, 84 F. Supp. 2d 9 (D.DC 1999)
(Nos. CIV. A. 98-;1232, 98-;1233). 3 Mark Cooper,
``Antitrust as Consumer Protection in the New Economy: Lessons
from the Microsoft Case,'' pp. 847-;851, Cooper Hastings
Law Review, 200106, November 27, 2001.
Microsoft is now pursuing online applications in banking, news,
travel, advertising and other areas. Of paramount concern is the
fear that Microsoft will use its Internet browser and these
applications to dominate the online business world in the same
manner as it leveraged its operating system to control the PC
desktop. This cannot be allowed to happen. The success of the
Internet and those who do business on it depends largely upon
freedom of access through a multitude of competitive applications.
Such a vision would not likely be realized were Microsoft to become
the Internet's sole gatekeeper.
B. An Inadequate Settlement
In their Proposed Final Judgement, the Court of Appeals
recognized Microsoft's culpability and rightly called for
``prompt, certain and effective'' remedies for consumers.
The Court is specific in describing these provisions. Among them are
requirements that computer manufacturers have the freedom to make
``middleware'' decisions regarding what software they
choose to offer to consumers as standard on their machines.
Manufacturers are to be able to sell and promote Microsoft and non-
Microsoft products equally, and customize their systems and software
as they choose, with licensing agreements to reflect this and
without fear of retaliation. The Proposed Final Judgement also frees
other software and hardware developers to work on applications for
the Windows platform, and requires Microsoft to disclose the
technical information needed for them to do so.
Consumers would no doubt benefit from the decrease in price and
increase in choice in the software market if the U.S. Department of
Justice settlement with Microsoft supported, and made enforceable,
all of the Judgement's provisions. Unfortunately, the settlement
falls short of this goal, as it contains many loopholes. For
example, while Microsoft is required to share technical information
to ensure compatibility with other companies'' software, it has
no obligation to do so if Microsoft determines that the disclosure
would compromise security or damage licensing agreements. Microsoft,
alone, should not be given the right to make this determination.
The Court of Appeals found Microsoft's ``commingling of
code,'' the process by which Microsoft inextricably links the
programming of its other applications to Windows and effectively
``locks out'' competitors, to be illegal. Yet, the
proposed settlement conspicuously omits mention of an enforceable
remedy. The settlement also gives Microsoft the power to
unilaterally determine what is defined as a ``Window Operating
System product.'' Based on its previous behavior, Microsoft is
likely to have an inclusive definition. The company now dominates
the Internet browser market, as its Internet Explorer application
has become an integral part of the Microsoft operating system.
In yet another example of how consumers gain little from the
settlement, Microsoft is also granted a loophole through which it
can continue to pay other vendors when ``reasonably
necessary'' not to develop or distribute competing products. As
a result, innovation will continue to be stifled and consumers will
not see or be able to choose products that Microsoft has paid to
keep off of store shelves. Rather than fostering an environment that
encourages entrepreneurship, growth and healthy business
competition, the settlement will reinforce Microsoft's dominant role
in the industry.
C. Additional Remedies Needed
In an attempt to address the settlement's shortcomings, nine
states and the District of Columbia have offered remedial proposals.
These proposals are now consumers'' last
[[Page 28467]]
chance at true reform in this case. Unlike those included in the
settlement, the proposals will, if enacted, contribute to reduced
software prices and ensure that consumers are at minimum given the
option of making choices when equipping their computers. Specific
proposed remedies would require Microsoft to:
Offer a stripped-down, unbundled version of Windows. Without
built-in software such as the Internet browser, media player, or
email applications, consumers will be able to better custom order
PCs with only the installed applications which they choose to
purchase. Share its code for its Internet browser with other
software developers, thereby allowing for new products with new
innovations and ensuring that consumers do not rely on Microsoft as
the predominant way to the Internet.
Auction the right to create different versions of its Office
software suite for use on other operating systems, such as Linux.
Again, this provision eliminates Microsoft's application barrier to
entry and gives more choice to consumers.
Include ``middleware'' software in Microsoft's latest
operation system, Windows XP. This will enable software applications
to universally, across non-Microsoft platforms, expanding
interoperability of products and consumer options.
Consumers also support the nine Attorneys'' General and
Corporation Counsel's efforts to advocate for a court-appointed
master with real enforcement abilities. The U.S. Department of
Justice settlement proposed a three-person technical committee to
oversee Microsoft's compliance with the settlement. The findings of
this committee would neither be made public nor revealed to the
Court. In contrast, a court-appointed master would be able to more
effectively respond if Microsoft violates the terms of the
settlement.
Finally, the settlement offers no effective punishment to deter
Microsoft from acting in bad faith. As it stands, the penalty for
non-compliance with the agreement is only an extension of the
monitoring period. The litigating states have proposed an
alternative punishment with far greater consequences: the revealing
of Windows'' source code.
Together, these steps are needed to effectively oversee and
enforce any agreement with Microsoft, a company that has leveraged
its dominance in the market to get what it wants at the expense of
its competitors and consumers.
V. CONCLUSION
The proposed U.S. Department of Justice settlement alone does
not remedy or address the finding of the Court of Appeals. It is not
complete in its breadth, nor does it contain adequate enforcement
provisions. For millions of consumers who rely upon a personal
computer in so many facets of their lives, this agreement, as it
stands, is decidedly not in the public interest. It will not make
Microsoft's products more affordable or reliable. It will not give
consumers greater choice of what software they wish to run or
flexibility as to how they wish to configure it. It will not
encourage innovation and competition in the software industry and
allow consumers to reap the benefits.
Many on both sides of this case have complained about the length
of the trial and the settlement process. An effective solution now
appears to be within reach. We urge the Court not to allow a
settlement that does not live up to the Judgment of the Court of
Appeals and settle for settlement's sake. We urge that the Court
consider and adopt the proposals put forth by the litigating states
and the District of Columbia as a much more thorough and enforceable
solution, one that will bring all of the above benefits to consumers
who represent the public interest.
Respectfully Submitted,
Dirck A. Hargraves
Counsel
Telecommunications Research and Action Center
Post Office Box 27279
Washington, DC 20005
Harry C. Alford
President & CEO
The National Black Chamber of Commerce
1350 Connecticut Ave. NW Suite 825
Washington, DC 20036
Joe Byrd
President
The National Native American Chamber of Commerce
Post Office Box 663
Okmulgee, OK 74447
MTC-00028894
From: Ray Whitmer
To: Microsoft ATR
Date: 1/28/02 6:49pm
Subject: Microsoft Settlement
To whom it may concern, regarding the proposed settlement of the
microsoft case.
I am not a lawyer, and have no sound legal advise to offer, and
the time has past for that. I have been an employee of a number of
companies who have found it impossible to compete with Microsoft
because competing with them had little to do with quality of product
and everything to do with control.
You do not have to look far at all for many overt acts that I
think any reasonable person would call criminal. This is because of
the high- pressure eminating from the top of the company, to win at
any costs.
In my 20 years developing products across many operating systems
and corporate structures, I have worked for WordPerfect corporation,
Novell, and Corel, among others, and it has become increasingly
obvious that quality has nothing to do with winning in the
marketplace.
It is all about who controls the information patterns of the
masses, whether it be Movies, Software, News, or Advertising.
This is not a new phenomenon. Once the Catholic Church
controlled these things quite effectively with systems that greatly
resembled the ever-expanding copyrights and patents on things today.
Today, Martin Luther, sneaking out of the Vatican with his biblical
transcripts would be hunted down as the latest Napster-ite, who
thinks that works which interweave themselves so deeply into the
roots of a population should not be controlled by a power-hungry
entity such as a Church or a Mega-corporation. This does not mean
that those who produce them do not deserve profit, but see what the
billions paid for Windows every year buys us: In significant cases,
less than what the remaining competition now gives away for free,
because Microsoft has such a lock on the market. The profits are
squandered every year on power.
There are dozens of competing products that could have easily
taken that position had they controlled the power they had in their
times as unscrupulously as Microsoft does. Corporate survival and
hunger for power and profits are the reason we have antitrust laws.
In this case, the public shame is greater, because it is the
Copyright laws--;an artificially- granted government
monopoly--;that establishes the Microsoft Monopoly.
If it were possible to still compete in this market against that
Corporation, you would clearly be seeing much lower prices--;the
Microsoft take increases, but somehow the economies of scale in
software production never lowers the price of the software, and
there is never even consideration that you paid for dozens of
versions you can no longer use because Microsoft has made them
incompatible.
Microsoft is not an indispensible part of the market. If they
vanished, within 5 years, there would be no trace left, and there
would be competition for a little while until another corporation
showed that it was the most vicious of those remaining and
consolidated power.
I and thousands of people like me have started writing new
software that is not susceptible to this overbearing corporate
eternal ownership--;which I have to believe is extremely
different from what the framers of the Constitution thought they
were doing in granting limited copyright and patents.
We have the technology to design around the original intent of
these laws, and it is time that you look at seriously reigning in
the moster that has evolved. Law of the mega-corporation, by the
mega-corporation, and for the mega-corporation is not in anyone's
best interest long-term, even if the mega-corporate advertising of
today has the same persuasive power as the mega-Churches of old over
the masses, tribunals, and courts of law.
The case against Microsoft was poorly made, and hardly
justified, not that there wasn't a huge case to be made. But your
remedies are worse than ineffective. They will do more harm than
good. You have overturned the breakup, which might have had some
effect, but likewise didn't get at the root of the problems, which I
have tried to describe here. It is not Microsoft that is wrong but
which succeeded by such viciousness would
be just as bad, and I would be just as sorry to see Sun, Oracle, or
even my own company AOL Time Warner be in such an abusive position.
I think that when a company abuses the public trust of its
granted monopolies as badly as Microsoft has, the appropriate and
natural action is to revoke their monopoly, which in this case is
their copyright. With that arrow in your quiver, it would not be
difficult to convince companies in the future to act more in the
public interest. Short of that, please abandon your current pursuits
and admit honestly that the corporation has won and the country has
lost. It is really
[[Page 28468]]
rubbing salt in our wounds to offer something that hurts more than
it helps and claim you have acted in our behalf.
Human rights are more important than copyrights or corporate
rights. Many technology companies go under every year. It would be
better, though if there was a better connection between profits and
service. If you do not, the next revolution is on the horizon. You
cannot lock up everyone for violations of intellectual
``property'' any more than the Church could, however much
the corporations want to control everything. And corporations do not
need an absolute eternal copyright as much as they might claim.
And America will become the ``old world'' while other
countries such as Russia have their patriots thrown in prison in
America for crimes of conscience by the dozens of new FBI/DOJ
departments created for this new opression --; certainly not for
any overt act depriving a corporation of it's profit in the recent
Sklyarov case. Do you really want to be the ``Department of
Justice'' which presided over such a debacle? Where is justice
for we, the people?
Ray Whitmer
[email protected]
MTC-00028895
From: Gene Merritt
To: Microsoft ATR
Date: 1/28/02 6:49pm
Subject: Microsoft settlement
Spending any amount of time on an computer one cane encounter
MANY areas of UNDUE influence by Microsoft.
This now even extends to websites such as STARBUCKS. I had an
account with them until they formed a partnership with Microsoft and
redesigned their (Starbucks') website based on Microsoft Passport!
My old account is no longer valid.
And, even more, one cannot even approach or get onto or even
contact the Starbucks site unless one accepts Microsoft Passport
cookies! Not even being allowed on the site without Microsoft's
surveillance! I consider this WAY TOO MUCH POWER AND INFLUENCE! And
this is only one example!
I've sent several emails to Starbucks * * * finally
got to them through Planetfeedback* * * and still no
getting near the site.
Microsoft is extending it's web of power and influence AND
CONTROL into so many areas of public and private communication.
MSNBC. Newsweek. Just to name a few. This may, now, look rather
harmless, but* * * they what about the future. One company
should not have so much control over so many facets of our daily
lives. And the government, in this matter, doesn't look to clean in
this case, either. I remember seeing news footage of Gates in
Washington set to meet with government officials WHILE MICROSOFT'S
CASE WAS BEING HANDLED BY THE GOVERNMENT! I the, immediately,
thought about CONFLICT OF INTEREST! Talk about impropriety!!!
Microsoft seems to have no qualms whatsoever about tossing
around their incredible weight and thumbing their nose in the air at
us regular Americans* * * and for that matter, the laws of
this great country!
There's no remorse. No head bowed seeking the government's
forgiveness. Does this tell you anything!
It's in your court now! Don't shame the rest of us HONEST
Americans by holding Microsoft and it's bullying practices up to a
different standard of law than the rest of us!
Thanx for listening!
Gene E. Merritt
Brimfield, Ma.
MTC-00028896
From: Vicky Stables
To: Microsoft ATR
Date: 1/28/02 1:58pm
Subject: Microsoft Settlement
I think the settlement proposal is a bad idea. Please find a
better solution that provides better protection to consumers and the
software industry.
Vicky
Vicky Stables, CPA
Anacortes, Washington, USA
MTC-00028897
From: Lydia G. Rich
To: Microsoft ATR
Date: 1/28/02 6:50pm
Subject: USAGRich--;Lydia--;1068--;0108 (1)
35 Hyatt Drive
Warren, PA 16365-;3527
January 10, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to express my support in the recent settlement
between Microsoft and the federal government. It is with sincere
hope that this is the end of any litigation on the federal level.
Considering the terms of the agreement, Microsoft did not get off
easy at all. In fact, due to this agreement, Microsoft has to make
several important changes to the way that they handle their
business.
For example, Microsoft has agreed to disclose and document for
use by its competitors various interfaces that are internal to
Windows'' operating system products. This alone is a first in
an antitrust settlement.
Microsoft has also agreed to make available to its competitors,
any protocols implemented in Windows'' operating system
products that are used to interoperate natively with any Microsoft
server operating system.
With the many terms of the agreement, I see no reason for the
government to pursue further litigation on any level against
Microsoft. Not only would it be a waste of time, but a waste of
money as well. I fully trust that you would agree. Thank you.
Sincerely,
Lydia Rich
cc: Senator Rick Santorum
MTC-00028898
From: Viki Williams
To: Microsoft Settlement
Date: 1/28/02 6:46pm
Subject: Microsoft Settlement
Viki Williams
11522 Small Dr.
Mesquite, TX 75180
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies. Thank you for this opportunity to share
my views.
Sincerely,
Viki L. Williams
MTC-00028899
From: Andrew
To: Microsoft ATR
Date: 1/28/02 2:10pm
Subject: Microsoft Settlement
To the Department of Justice:
I am writing to express to you my horror (and I use that word
deliberately) at the proposed settlement to the current Microsoft
antitrust case. I believe the proposed remedies are in no way
commensurate with the crimes of which Microsoft has been found
guilty.
Almost all of the subsections under the Prohibited Conduct
section contain gaping loopholes. For instance, one subsection
provides for the removal of references (on the Desktop and in menus)
to Microsoft applications, but in no way provides for the removal of
the application itself. Such an application could still be activated
by other means, and, by its presence on the system, could interfere
with the proper operation of non-Microsoft applications. Microsoft
has already proven itself to be very adept at exploiting such
loopholes and a truly fair and effective Final Judgement must seek
to close them.
At --;best--;, the remedies in the PFJ will help to slow
the growth of Microsoft's monopoly, but will do nothing to diminish
it. At worst, such a Final Judgement would actually help to protect
Microsoft from further legal action if they continue their
anticompetitive practices. And it would be foolish to believe that
they would not do so.
In our society, criminals theoretically are supposed to serve
jail time and/or compensate their victims for their suffering. This
settlement requires neither of Microsoft.
[[Page 28469]]
Microsoft has over the years repeatedly raped OEMs, ISVs, consumers,
and others, all the while thumbing its nose at America's laws and
system of justice. Now it is time for Microsoft and its corporate
officers to pay the price. I am counting on the Department of
Justice to see to it that the American people are properly protected
and compensated.
Andrew T. Smith
Computer Science major
1127 Humboldt St., Apt. C
Santa Rosa, CA 95404
Phone: 707-;546-;6120
MTC-00028900
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:51pm
Subject: Microsoft Settlement
I believe that the AOL suit against Microsoft is not warranted
and is doing Microsoft an injustice by prolonging this litigation. I
could very well use Netscape as my browser, but prefer Internet
Explorer which is an excellent product. AOL and the other companies
that are seeking this suit know that Microsoft has cash and are just
trying to get some of it into their own pockets. It would be better
if they stopped this nonsense. They should get down to the business
of running their own companies better and using innovations of their
own to produce better software and not trying to blame Microsoft for
their own mistakes and problems
Judy Stein
MTC-00028901
From:
Mary--;Paul--;[email protected]@
inetgw
To: Microsoft ATR
Date: 1/28/02 6:52pm
Your Honor,
I know there is a deadline for comments and I am not the most
eloquent arguer on short notice, but here are some of the reasons I
feel Microsoft must be severely punished.
Microsoft is not a company we can trust with our technological
future. They have a history of ``thumbing their nose'' at
the legal system through an expert legal team of ``loophole
finders.''
Netscape was only one in a long line of Microsoft casualties.
Remember when Lotus 1-;2-;3 and Word Perfect were king?
What Microsoft is good, perhaps even ``innovative''
at: bundling their products for competitive advantage, giving them
away, either for free or a ridiculously low price, then once the
competition is gone, and/or their stranglehold on the market is
secure, they charge customers hideous prices for marginal upgrades.
(Mostly over-rated ``bug fixes''.) Several years back,
Microsoft shrewdly invited everyone with pirated copies of their
various office product to become ``legal'' though a free
registration. The amnesty plan worked, and the now legal owners,
feeling they had ``one up on Microsoft'' happily paid for
the never-ending upgrades.
In general however, Microsoft is most definitely NOT a
technologically innovative company. With few exceptions, (the
``talking paper clip'' for one) their announced
``innovations'' are directly copied from others. For
specific examples, see http://www.vcnet.com/bms/departments/
innovation.shtml . Bill Gates, often cited as some
``genius'' rather than the megalomaniac that he is, did
not even see the relevance of the internet until he saw Netscape's
market penetration.
I personally recall purchasing a Netscape browser upgrade
several years ago. (My first copy was in my starter kit when I
joined Earthlink--;and I assume Earthlink paid a license for the
privilege of distributing the browser, as it was not free at the
time.) Once Microsoft ``woke up and smelled the internet''
they began giving Internet Explorer away to eat away at Netscape's
market share. The effect was immediate, and Netscape had no choice
but to follow suit. I would also add that at the time Microsoft
began giving away their browser, Netscape had the technologically
superior product, which had already incorporated the ability to
handle javascripts. At the time Microsoft made their infamous deal
with AOL, Internet Explorer still did not handle javascripts, which
is one of the reasons people used to hate browsing through AOL. I
also recall how I complained to AOL about their tactics--;they
would ``nag'' me at log-on and log-off to download the IE
browser--;obviously part of the contract.
But that wasn't enough for Microsoft. Their version of
innovation was to force Netscape and every other browser into
obsolescence by ``welding'' Internet Explorer into the
Windows operating system so that it cannot be deleted. While I'm
sure that there are many in the pro-Microsoft camp that will give
very impressive reasons for why this is necessary and
innovative--;I don't believe a single one. I consider myself to
be a fairly savvy computer user, versed in both PC and Mac
platforms, but I have yet to find a single benefit to the consumer
that was created by tying these two products together. To be
specific, I cannot see any difference in functionality between the
bundled Internet Explorer on the Windows computer I use at work
versus running Internet Explorer on the Mac I use at work for
graphic development. Both programs work as they are supposed to,
opening HTML pages and connecting me to the internet. There is only
one reason that Microsoft bundled these products* * * to
wipe out Netscape and dominate the internet.
And what will Microsoft gain? Well, look at where they are
focusing their energy today. Now they are forcing anyone who buys
their recent upgrade packages to apply for their internet
``Passport'' account. $400 Rebates/incentives are driving
consumers to sign up for MSN as Microsoft takes aim at AOL's market
domination. Microsoft has one aim, to control every exchange of
personal, consumer, and financial information. Since I have watched
a never-ending stream of examples of unethical and anticompetitive
behavior from this company, I can say this without reservation: This
is not the company I want peeking into my wallet and tracking my
visits on the internet. This company is Big Brother incarnate.
Respectfully yours,
Mary L. Paul Stewart
MTC-00028902
From: David Medin
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 6:52pm
Subject: Microsoft Settlement
I, as a member of the computing and electronics industries for
more than 20 years, am completely opposed to the proposed Microsoft
settlement, which will do nothing, in my opinion, to open the
marketplace to competition nor innovation.
My definition to a satisfactory settlement will be the lowering
of market prices for Microsoft operating systems and associated
applications to ``reasonable'' levels for businesses and
consumers. $450 for a word processing package, per computer, which a
consumer has to buy to maintain interoperability with professional
standards? $350 for an Operating System?
This pricing level is ridiculous, and Microsoft's margins
reflect this! They can only command this price because of monopoly.
Microsoft's margins are not a reflection of their
innovation--;Microsoft software quality and security is known to
be among the worst ever in the marketplace and they've only
``innovated'' when forced--;but of their sheer market
saturation and the need for people to have compatible products in
order to exchange information successfully.
The dynamic of the software marketplace is much different from,
let's say, automobiles, as the key for marketability is
interoperability. If you cannot exchange information in standard
formats, such as between word processors of different authors, the
application is useless. Microsoft has obtained a monopoly on many
aspects of operating systems and applications through brute force
and interoperability with Windows features, which they control.
The settlement does not address two key areas neccessary for
success--;splitting of the Microsoft OS and Applications
divisions, and complete opening of internal OS APIs such that
compatible and interoperable applications AND operating systems can
be easily built. The dynamics of launching a competitor to Microsoft
applications like Office would be formidable without drastic
measures to equalize the marketplace, so unless those measures are
taken, we will continue to be held hostage to Microsoft's monopoly.
All the other measures of the settlement, such as educational
software donation, are completely self-serving to Microsoft, which
wants to overcome Apple's penetration in education anyway. Someone
in Redmond will be congratulating themselves if this settlement is
adopted. The rest of us lose* * *
Sincerely,
Dave Medin
1305 Brockman Ave.
Marion, Iowa 52302
MTC-00028903
From: Mark Pruner
To: Microsoft ATR
Date: 1/28/02 6:52pm
Subject: Web Counsel comments
Ms. Hesse''
Attached as a WordPerfect file is our comments on the proposed
DOJ/Microsoft settlement. Please confirm receipt at your earliest
convenience.
Mark Pruner
[[Page 28470]]
MTC-00028903--;0001
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
VS.
MICROSOFT CORPORATION,
Defendant.
STATE OF NEW YORK ex rel.
Attorney General ELIOT SPITZER, et al.,
Plaintiffs,
VS.
MICROSOFT CORPORATION,
Defendant.
Civil Action No. 98-;1232
Civil Action No. 98-;1233
WEB COUNSEL, LLC'S
COMMENTS ON DOJ'S REVISED PROPOSED FINAL JUDGMENT
Web Counsel, LLC is an interactive marketing company that will
be harmed if the Proposed Final Judgement agreed to by the
Department of Justice and Microsoft Corporation is approved. We
believe that the proposed judgement is not in the public interest,
and while not perfect, the dissenting states proposal is much closer
to the remedy that the U.S. Supreme Court has required to
``unfetter a market from anticompetitive conduct,'' to
terminate the illegal monopoly, deny to the defendant the fruits of
its statutory violation, and ensure that there remain no practices
likely to result in monopolization in the future.''
We fully support the remedies proposed by California,
Connecticut and the other dissenting. Their comments are
incorporated herein by reference and the material set forth below is
meant to complement and extend the remedies proposed by the
dissenting states. WE THEREFORE, submit these comments as allowed by
the Tunney Act.
Microsoft will push the limits of any judgement and will not be
cooperative with any voluntary enforcement mechanism.
Microsoft has shown a history of not living up to the spirit of
their prior settlements and agreements. As examples:
1. Microsoft's first settlement with the Justice Department
included a two word phrase that Microsoft used as a loophole to
totally gut the settlement's effect in the marketplace. The proposed
DOJ/Microsoft settlement is replete with phrases such as
``provided that'', ``except that'', ``so
long as'' etc. Microsoft will certainly use these phrases to
thwart the few significant restrictions in the proposed settlement.
2. The Tunney Act provides that Microsoft is to report all
contacts with government officials. Microsoft as usual has taken a
very narrow reading of this requirement and not reported many
contacts, particularly with legislative branch official.
3. Bill Gates'' was very uncooperative in his deposition.
What should have taken a day stretched to 3 days. He did his best to
avoid answering questions, by arguing such things as the definition
of the word ``is''.
4. Microsoft fabricated or was grossly negligent in presenting
their evidence. At several times in the trial, they had to retract
testimony after DOJ's counsel was able to show that the facts did
not comport with the Microsoft witness'' testimony.
5. Microsoft's first browser was not created by Microsoft, but
rather licensed from Spyglass, a small innovative software company.
The license required Microsoft to make licensing payments to
Spyglass, but Microsoft held up these payments, which were vital to
Spyglass to continue developing its browser. Only when Spyglass made
it clear that it would no longer actively develop its browser did
Microsoft make the payment it was contractually required to make.
II. Web innovation has stalled since Microsoft got a monopoly in
web browsers
Prior to Microsoft entering the market for web browsers Netscape
and many other companies, such as Spyglass, were developing innovate
new features and services in their browsers. The first casualty of
the Microsoft monopolist entering the browser battle was not
Netscape, but the many smaller innovators, that had been pushing
Netscape to make its product better.
Microsoft created a concept called ``embrace and
extend'', which should be more properly called ``copy and
crush''. Microsoft at its option will copy another company's
software, buy the company or license the software. It then adds a
few features and uses its monopoly profits and tie-ins with its
other monopoly products to crush the competitor. The result of this
process is that the monopolist dives the small innovators out of the
market. As a result innovation is stifled.
The Microsoft browser illustrates the monopolist's lack of
innovation. Anyone who uses Microsoft's Internet Explorer software
will find dozens of things that need improvement or that would
normally motivate a user to switch to a competitor, but there are no
viable alternatives. To illustrate some of the many areas in which
Microsoft has failed to innovate set forth below are only some of
the problems with the Microsoft browser. IE is unreliable and
insecure. IE crashes more often than any other software on our
computer. The lost work and wasted time costs the U.S. billions of
dollars. IE is unreliable, because Microsoft as a monopolist does
not have abide by industry standards. It creates its own standards
and changes them, regardless of the costs imposed on third parties.
The browser is also very insecure and is constantly having to be
patched. Were Microsoft not a monopolist of the OS, the browser and
the office suite, many organizations would have rejected it for
these reasons. This lack of security has now risen to the level of a
national security issue. Hackers, terrorists and foreign governments
can exploit this insecure product to the detriment of the U.S.
government, its economy and its citizens.
Micropayments--;Micropayments are crucial for websites that
sell information, both text and images. People will pay from 10
cents to $2.00 to read an article or look at an image or chart, but
there is no widespread payment system to make these small payments.
The Microsoft payment systems is clunky and invades a user's
privacy, as a result, few people use it and even fewer buy articles.
Because, Microsoft has kept third parties from accessing the
necessary APIs and other parts of the system, the Microsoft monopoly
has a has put thousands of web content providers out of business.
These content providers can not sell their valuable material,
because Microsoft wants to control any micro-payment system. As a
result web content providers could only rely on advertising revenue,
even though they could sell millions of articles and graphic images
with a proper micropayment system. The necessary APIs have to be
made public and barriers to the use of non-Microsoft payment systems
with Microsoft software have to be removed at both the browser level
and the O/S level.
Page editing is difficult--;Billions of additional dollars
are wasted every month, because web pages are so difficult to
create. The difficulty of creating pages for the IE browser
increases sales of Microsoft's page editing program, Frontpage.
Typical of Microsoft's efforts to exclude competitors, Frontpage is
designed to write proprietary codes that can't be read by other
browsers or that causes these browsers to crash.
Bookmarks work poorly--;The IE browser bookmark feature
(called ``Favorites'' by Microsoft) is cumbersome,
requiring a multi-step process. Bookmarks can only be to a file, not
a spot in a file, so finding information in very long files can be
very time consuming. Others have better bookmark systems, but MS has
no incentive to incorporate them or improve its bookmarks. While a
minor point, this functionality, like other cumbersome features in
IF.. is used billions of times each day world-wide, so even a small
improvement would huge amounts of time when added together.
Integration of the browser with other functions & with
XML--;Microsoft has discouraged efforts to easily move
information, between web pages and other applications, except where
Microsoft products are involved. Extensible Mark-Up Language (XML)
has been around for several years, but since Microsoft has a
monopoly in browsers they need not worry about a competitor
developing this technology, due to the barriers to the entry found
by the trial court. At the present time, browsers can display text
and graphics, but humans have to organize the information displayed.
XML is like the West Key System organizing information into
categories for easy retrieval and use. MS is trying to monopolize
this standard also and with their three monopolies is likely to
succeed.
Browsers on non-PCs--;Microsoft has tried to force
variations of IF. browser onto personal digital assistants (e.g.
Palms) and cell phones, even though they are not suited for these
devices. As a monopolist Microsoft has no incentive to develop a
different type of browser for non-personal computers. If a company
does develop such a non-PC system, Microsoft can move quickly to
stop them, as they did with Web TV. Because of its huge monopoly
profits, Microsoft was able to pay an extremely high price for this
system that displayed website on TV. Once it controlled this
potential competitor, Microsoft efforts to further develop this
system fell short of the level expected when a non-monopolist
invests that amount of money.
Printing sophisticated pages--;Printed web pages and web
pages on computer screens do not look the same. This causes
tremendous
[[Page 28471]]
difficulties for Web Counsel and other web developers. Web
developers are restricted to basic layouts, even when there would be
significant advantages to a more sophisticated layout. The primary
solution in this area is a non-Microsoft solution, Adobe Acrobat
.pdf files. Microsoft does not see this system as a threat, because
.pdf files are very difficult to create and use. Microsoft efforts
to make printing web pages is minimal.
Customizing feature--;Microsoft makes adjusting and
customizing the Internet Explorer browser very difficult. If a
company creates a browser based service that needs a customized
browser, they must hire expensive programs and even then,
customization is very limited. MS restricts API information, uses
restrictive licensing and insists on maintaining IE's appearance.
From the individual's user perspective, finding the places and
understanding obscured references such as ``Use TLS 1.0''
or ``Show Friendly URLs'' means that most people will have
to use their browsers the way Microsoft wants them to use it.
Microsoft, like all monopolists, does not innovate, because they
have no economic incentive to do so. Microsoft used to add
innovative features to its browsers, albeit mostly copied from other
companies, principally Netscape. Microsoft stopped making
significant improvements once Netscape stopped innovating. Netscape
stopped innovating, because Microsoft had used its monopoly to make
sure that there was no money to be made in browsers.
Microsoft already owns the browser market, why should they try
to do something innovative, when their market share is much more
likely to go down, than up.
Ill. Microsoft's monopolies prevent fair competition and must
controlled
Microsoft has monopolies in not only the OS and the browser, but
also in the Office Suite software. (This claim was originally made
in the state's complaint, but later dropped to harmonize its
complaint with the DOJ complaint.) These inter-locking monopolies
give Microsoft even greater power than a normal monopolist.
Microsoft's confidence in the power of their monopoly can be
seen from their bail-outs of their competitors. Microsoft invested
millions of dollars in Apple, the only significant operating system
alternative, (although Apple's OS won't run on Intel processors.)
Microsoft claimed it was an investment to support Apple, whose users
bought Microsoft Office suite software for their Apple Macintoshes.
While unlikely, Microsoft's true motivation became evident when they
tried to prop-up Corel's WordPerfect office suite. Microsoft's
effort to co-opt this competitor was so blatant, that regulators
opposed Microsoft's investment and Microsoft withdrew there offer.
Microsoft's competitors know that the Microsoft's monopolies
have created a $36 billion treasure chest of monopoly profits. They
also know that Microsoft will use these funds and the unlawful
tactics outlined by the trial court to oppose anyone that should try
to compete with them in their monopoly areas. These funds and
Microsoft's hardball tactics scare away potential competitors and
innovators. If the DOJ/Microsoft proposed settlement is accepted the
perverse result will be that potential competitors will be even more
discouraged, because they will see that Microsoft got no monetary
penalty and was rewarded with a monopoly for using unlawful tactics.
Even now venture capitalists reject out of hand any business plan
that Microsoft might see as competing against their core monopolies.
Since Microsoft has 3 inter-locking monopolies, the remedies
must be more comprehensive and certain, particularly, since
Microsoft has shown that they will not live up to the spirit of the
settlement language and are likely to violate the actual letter of
the settlement. While I support all of the relief requested by the
nine dissenting states, I believe that Microsoft should also be
subject to a substantial fine so that they do not benefit from, nor
use their ill- gotten gains to unlawfully further their monopolies.
IV. Enforcement
The proposed Microsoft/DOJ enforcement procedure will do little
to prevent improper actions by Microsoft. The voluntary dispute
resolution procedure will not work. Microsoft will either not
volunteer to be punished or more likely they will drag out such
procedures and Microsoft will win because of the delay.
Microsoft traditionally comes out with a major new OS about
every three years (e.g. Windows 95, Windows 98, Windows XP [2001]).
The success of these systems are determined in the first year, so as
we have seen Microsoft has tried to constantly delay the present
litigation and it has succeeded. The original complaint was filed by
DOJ in May of 1998. In the meantime, Microsoft has come out with the
minor OS upgrades Windows ME and Windows 2000 and the major new OS,
Windows XP. None of these OS's have been restricted, by the DOJ and
during this time Microsoft has continued to make extraordinary
profits even during the recent down economy.
The new Windows XP has several features that continue to
unlawfully leverage Microsoft monopolies, e.g. the Passport system.
While it is theoretically possible to run Windows XP without the
Passport system, the average user will not be able to figure this
out and the software repeatedly demands that the user sign-up for
the Passport system and provide their private information to be put
under Microsoft's control.
If the court wants to do justice now, the final settlement must
have a quick and certain arbitration procedure. Failure to include
such a provision will result in Microsoft complying with the orders,
but only after they are irrelevant. A clear example of this is the
``concessions'' that Microsoft has made as to the web
browser in the proposed DOJ/Microsoft settlement. Microsoft made the
concessions because, its unlawful acts have won the browser battle.
Microsoft is happy to concede, here and in other areas of the
proposed settlement, points that don't restrict what it actually
wants to do or that are irrelevant in the marketplace.
Not only is speed essential, but the enforcement procedures must
provide a way to expose Microsoft's efforts to intimidate third
parties. Microsoft is notorious for threatening not only its
competitors, but its customers, something that only a monopolist can
do (e.g. threat to Compaq to cut off sales of Microsoft operating
systems, see trial courts finding of facts.) Enforcement must
include an anonymous reporting feature and substantial penalties
swiftly enforced, otherwise Microsoft will continue its intimidation
and accept its conduct penalty, if any, many years later after it is
irrelevant.
V. The DOJ/Microsoft proposal will only lead to more litigation
Microsoft and its abuse of its monopoly have injured many
parties, and regardless of how you rule, there will be substantial
litigation as evidenced by the recent action brought by AOL/Time
Warner against Microsoft. The AOL suit, however, also illustrates
what will happen if the court adopts the proposed DOJ/Microsoft
proposed settlement. Litigants, as has AOL, will move to further
restrict the monopolist's actions; litigants will bring actions in
the courts instead of through arbitration and Microsoft will delay
this litigation for years. The resulting uncertainty will hurt the
United States leadership in software at all levels.
The software industry is not prone to litigation, but companies
will be left with no options to protect themselves, if this court
does not provide an adequate enforcement mechanism and fair
settlement, that is perceived to be fair.
VI. Java should be required
The public interest and competitive fairness require that
Microsoft provide a quality Java interpreter with every copy of
their web browser. Much of the functionality, that we and other web
developers have built into their websites is based on the Java
language. If Microsoft gets away with not providing Java support in
their browser, as they have already done with Windows
XP, the results with not be in the public interest: tens of
billions of dollars that have gone into programming sites in Java
will be wasted tens of thousands of website will lose some or all of
their functionality, and Microsoft will have another monopoly, this
time in web languages. If nothing else, the DOJ/Microsoft proposed
settlement, must be amended to require Java support.
WE, THEREFORE request that you reject the revised proposed final
judgment by the U.S. Department of Justice and Microsoft
Corporation, and that you adopt the proposed judgement by
California, Connecticut and the other dissenting states, that you
impose a substantial monetary penalty on Microsoft for their
unlawful acts, and that you grant such other relief as is requested
herein and you may determine to be in the public interest.
DATED this 28th day of January, 2002
Mark Pruner
President
Web Counsel, LLC
Stamford E-Center
59 Broad Street
Stamford, CT 06901
203/969-;7900
203/969-;7904 (fax)
203/550-;0929 (cell)
[email protected]
http://www.webcounsel.com
Our latest site http://www.gibbonslaw.com
[[Page 28472]]
MTC-00028904
From: rclay773281
To: Microsoft ATR
Date: 1/28/02 6:52pm
Subject: microsoft settlement
Robert Clayton
14085 Olympic View Road
Silverdale WA 98383
1/28/02
To Attorney General John Ashcroft
US Dept. of Justice
950 Pennsylvania Ave. NW
Washington D.C. 20530
Dear Mr. Ashcroft
I am writing you today to express my opinion in regards to the
microsoft antitrust dispute.l am a microsoft supporter ,an d l would
like to see this costly litigation ended against Microsoft.lt will
serve in the best public interest to permanently resolve this
issue.This settlement was reached after extensive negotiations with
a court appointed mediator.Microsoft has agreed to all terms and
conditions of this agreement .Under this agreement ,microsoft m,ust
document its envied interfaces so other companies can use them to
develop more sophisticated soft ware. Microsoft has also agreed to
grant computer makers broad new rights to configure windows so that
other companies can promote their products while windows boots up.
Microsoft is more than willing to follow these procedures so they
can get back to work.This settlement will serve in the best public
interest.Our resources and time should be devoted to more pressing
issues
Thank you for your support.l might add that l have much more
confidence in your ability than your predecessor
Sincerely
Robert Clayton
[email protected]
MTC-00028905
From: Mike Searcy
To: Microsoft ATR
Date: 1/28/02 6:54pm
Subject: Microsoft Settlement
Microsoft has lost focus on the best interests of consumers. The
company now places its own ends above those of the consumer. With
some companies, this is often understandable and acceptable.
However, Microsoft, as ruled by the court, monopolizes an integral
component of the computing industry, an industry that has become a
primary driving force in the national economy. Consequently, until
Microsoft's monopoly is either no longer in place or is no longer
viable, the interests of the consumer public must take precedent,
and it is up to the government, as representatives of the people, to
ensure that the best interests of consumers are pursued. And, while
the current settlement agreement between the Department of Justice,
nine state Attorneys General, and the Microsoft Corporation, does
take some significant strides, it contains multiple loopholes that
would cause little to no adjustment in the tactics of Microsoft, a
company that has been proven to abuse the monopoly it holds and has
been seen to exploit such ambiguities often with brazen disregard
for the intent of the agreement in which they reside. One
significant loophole, the failure to adequately define what is and
what is not an operating system, is the focus of this letter.
Computing and Commodities
Commodities. They are the foundation of the computing industry.
However, based on context, they can often go by other names such as
objects, standards, and libraries. Simply put, commodoties create an
environment in which something can be reused multiple times and
interchanged easily. They are the cornerstone of the success of the
IBM PC, the World Wide Web, object-oriented programming, and grid
computing. They enable competition and promote innovation, often at
amazing speed. They form the basis for the goal of permitting any
device to work with any data at any time at any location and the
hope of writing a program one time and have it run anywhere and on
any device.
When an individual goes out to purchase a personal computer,
that person can choose from multiple PC vendors including Dell,
Compaq, IBM, Hewlett-Packard, and Sony, to name a representative
few. More often than not, he or she does not have to worry about
whether or not the printer they purchased or the scanner they
already own will work with the new PC in which they are investing.
That is because the PCs from all of these manufacturers are based on
a common, open architecture. The open architecture of these machines
``commodotizes'' the machine itself, allowing them to be
interchanged easily. This allows for a large degree of competition
between the vendors, lowered prices for consumers, and expedited
innovation. In fact, according to the Department of Commercel, PC
prices fell 26 percent per year between 1995 and 1999 due to this
rampant competition. When that individual is examining those PCs,
they can choose between processors from both Intel and AMD.
Generally speaking, he or she does not have to worry about whether
or not the spreadsheet program they purchased or the service
provider they are using to access the Internet supports the
processor they are examining, as long as the Windows operating
system supports it. In this case, the Windows operating system
``commodotizes'' the processor. Once again, the consumer
benefits from intense competition between the processor companies
yielding lower prices and greater innovation. Processors run faster
and cheaper now than ever before, and the bar seems to be raised by
this competition on almost a weekly basis.
When most people think of the Internet, they are actually
thinking about only one component of the Internet, the World Wide
Web. The success of the web is based on universal standards for the
delivery and access of information. These standards
``commodotize'' the sender and receiver of that
information. If the standards are followed, the end user, the
consumer, does not have to worry if the server he or she is
accessing is running Microsoft Internet Information Server (IIS),
Netscape Enterprise Server, Lotus Domino, IBM WebSphere, or Apache.
The standards ``commodotize'' the web server. This enables
significant competition in the web server space, allowing the buyer,
the presenter of the data, to choose from any number of servers.
And, thanks to this ``commodotization'', the growth of the
Internet, in terms of individuals accessing it since the inception
of the web, has increased faster than any other medium preceding it,
truly yielding immense consumer benefit.
The PC Operating System Commodity
Following the same logic, there is no reason that consumers
cannot realize the same degree of consumer benefit and innovation
from competition in the PC operating system market. The PC OS can be
``commodotized'' in the same way as the open PC hardware
architecture, the PC processors, and the web servers mentioned
above, yielding the same benefit to consumers and accelerating
innovation. The methodology for sending data to and from a PC OS can
be standardized following the same patterns as those detailed in the
examples. When a consumer wants to run an application such as a word
processor, speadsheet, or personal finance manager, he or she should
not need to be concerned about the underlying operating system any
more than he or she is concerned about the brand of the underlying
PC or processor. It is an unnecessary level of complexity. This
approach does not preclude competition in the PC OS space any more
than it does in the PC, processor, and web server markets mentioned
in the examples. In fact, it promotes it.
However, while such ``commodotization'' of the PC OS
yields the greatest consumer benefit in lowered prices, increased
competition, and accelerated innovation, it does not allow Microsoft
to retain the monopoly grasp on that market that it currently holds
and the resultant high profit margins. Consequently, rather than
working in pursuit of this goal on behalf of consumers, Microsoft
continually works in opposition of it actually working to undermine
it, leveraging its monopoly and using tactics such as
``application integration'' to thwart this goal resulting
in reduced consumer benefit, slowed innovation, and maintainence of
artificially high prices.
Achieving PC OS ``commodization'' is pursued in two
different ways: (1) the development of middleware and (2) the
restriction of what is and what is not a component of the operating
system. Middleware is software that sits between the application and
the operting system. Software developers write their applications to
the middleware rather than to a particular OS. This allows an
application to be written a single time and run on any operating
system supported by the middleware. However, as the advantage of
middleware is to allow portability of applications across operating
systems, it is imperative that the middleware be separate from the
OS. Examples of middleware are Java and the Internet browser.
Applications written in Java or to the browser, should be accessible
on multiple operating systems without needing rewrites. However, as
mentioned, such an approach, while benefiting consumers and
application developers, does not benefit Microsoft. Consequently,
Microsoft has strived to undermine the former and control the
latter. Bill Gates,
[[Page 28473]]
himself, realizes the benefits of middleware and articulates the
intent of Microsoft to undermine it when he states in an email in
January 1997, the following in regards to Java support in Windows.
``To avoid middleware taking over an operating system you have
to make sure the integrated services are different from the
middleware--;otherwise the middleware approach has no
disadvantages and it wins. I think the path we were going down of
building on [Java's Abstract Window Toolkit (AWT)] was a sure
disaster--;it was creating a situation where pure 100% Java
applications would look just as good as pure Windows applications
which we have to avoid.'' So, while pure Java applications
looking as good as pure Windows applications would be a boon to
consumers, it was undermined by Microsoft to protect its monopoly.
An internet browser that could run on any operating system would
present a universal platform for application development and a
universal ``client'' for the consumer. However, such a
universal client would undermine the Windows monopoly. Whereas
Microsoft could have adjusted the OS to utilize the universal
client, maintaining a separate browser client that could be ported
to multiple operating systems, Microsoft chose instead to modify the
browser client to accomodate the OS, thus eliminating the universal
promise of the browser and destroying the resultant consumer benefit
it would bring. These tactics could only be successful in an
environment where there is no competition for the OS. Otherwise,
consumers would flock to the OS that benefits them the most. In
today's environment, Microsoft decides what is and what is not
beneficial to the consumer. The consumer has no choice.
Inter Alia, Among Other Things
The current settlement agreement concentrates on addressing the
middleware issue. However, it avoids addressing the second
requirement of reaching the ``commoditized'' OS, a
situation that is exploited by Microsoft in an increasingly frequent
manner showing no indication of abating. To reach the goal of the
``commoditized'' 0S, a strict definition is needed of what
is and what is not part of the operating system. Without such a
definition, with its monopoly in place, Microsoft can continually
``integrate'' what is generally deemed as application
software into the operating system in the same manner they have done
with the browser. Two words in the text of the settlement agreement
permit this tactic of Microsoft to continue unabated to the
detriment of consumers. ``Inter Alia''. They are found in
the definitions section of the agreement within the definition of an
``Operating System'' (Section VI, Paragraph P.). With
these two words in place, Microsoft can ``integrate''
anything and everything it sees fit into the operating system. This
is easily seen in the latest iteration of its Windows operating
system, Windows XP, where Microsoft has ``integrated'' its
version of media ``application'' software into the OS.
While there are benefits of integration, they are shortsighted and
self-serving and do not present the greatest benefit to consumers.
For instance, a manufacturer could produce a part that works
specifically on a 2002 Ford Thunderbird. The benefit is that the
part works wonderfully on that one car, as it is custom-made for
that vehicle. However, how much better off is the consumer if the
part is made to work on 50 different vehicles as opposed to the one?
Immensely. Integrating application code into the OS is no different
and yields the same results. Consumers benefit only in the short
term and only as long as they continue to use the one OS to which
the application code has been welded. Is the integration necessary?
Not at all. Is it self-serving to the OS owner? Most definitely. Is
it in the best interests of consumers? Not a chance.
Not only is the integration unwise from a usability perspective,
it also leads to higher prices. How much cheaper can a single part
be mass-produced for 50 different vehicles as opposed to a custom
part for each one? The custom, integrated part is always more
expensive. However, in this case, the consumer is blissfully
ignorant of these unnecessarily higher prices for no other reason
than we are all driving Thunderbirds, and the excessively high price
of the part is ``integrated'' in the cost of the overall
car. To date, the measuring stick for allowing Microsoft to
integrate code into its OS is whether or not the integration
benefits consumers. This is the wrong approach. As we have seen,
there will always be an argument for how the integration benefits
the consumer. However, the question should be, ``Of all of the
options available, does the integration option present the best
option for consumers?'' Using this question as a guide, forced
integration into an OS will rarely, if ever, be the best option for
consumers.
With the above in mind, a specific definition of a PC operating
system is necessary. I am not presumptuous enough to believe that I
am capable of providing such a definition. However, I would envision
that a group of experts taken from multiple areas of the industry
could generate such a definition given the task. Undoubtedly, such a
definition would require modifications to Microsoft's existing
operating systems or could be enforced for all future versions.
However, having such a definition in place, along with the allowance
of middleware, could open the door wide for true competition in the
PC OS space while setting the foundation for immense, long-term
consumer benefit, benefits that will easily fall by the wayside
without it.
Regards,
Michael P. Searcy
Tampa, FL
MTC-00028906
From: Harry Yamamoto
To: Microsoft ATR
Date: 1/28/02 6:47pm
Subject: Microsoft Settlement
To Whom It May Concern,
The remedies for the Microsoft Settlement must be fair but not
so disruptive that competitive innovations would have no platform to
work from. If the government kills off Microsoft the cost will be
tremendous for everyone to switch to ????? The ``unfair
competition'' seems inherently a part of the nature of these
relatively new technologies. If there were not basic uniform
operating systems the information technology business would not
exist. If Microsoft was more aggressive and kept a ``closed
system'' similar to Apple Computer where would competition be?
Apple has a significant share of the PC market. Where are the
others? If Microsoft were not innovative and added features we could
still using Visacalc and be playing Pong.
Many of the software companies calling foul should have
approached this business problem with a different tact. Their
efforts to tag along behind the leaders will always be a
disadvantage. The government must not punish the leaders of an
industry just to help the weak companies that are just along for the
ride. In the beginning I was a very strong Apple supporter, but I
needed integrated products that could be used economically so I
switched to PCs and Microsoft software. The need for uniformity and
connectiveness breeds the necessity to be able to work across
different platforms. Users need products that work and are also
convenient. (To save time and expense.)
Harry Yamamoto
5573 Road U SE
Warden, WA 98857
Phone (509) 349-;2435
MTC-00028907
From: Neal Stobaugh
To: Microsoft ATR
Date: 1/28/02 6:55pm
Subject: Microsoft Settlement
4030 148th Avenue NE
Redmond, WA 98052
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my full support of the recent settlement
between Microsoft and the US Department of Justice. I am glad to see
they had reached a settlement and that Microsoft will be allowed to
start focusing on business, not politics.
I do believe that the terms of the settlement are fair and will
ultimately have a positive effect on the consumer and small
businessperson. Microsoft's concessions, such as agreeing not to
retaliate against computer makers and software developers who
develop or promote products that compete with Microsoft, or granting
computer makers broad new rights to configure Windows so that non-
Microsoft products can be promoted more easily, should appease all
the competitors.
I urge your office to do what is right for the American public.
Implement the settlement. Thank you.
Sincerely,
Neal Stobaugh
MTC-00028908
From: Lynnie D. Velarde
To: Microsoft ATR
Date: 1/28/02 6:55pm
Subject: Microsoft Settlement
Dear Attorney General: Attached is my letter of opinion for the
settlement between the Department of Justice and Microsoft.
[[Page 28474]]
Sincerely,
Manuel B. Velarde
Manuel B. Velarde
8902 Leemore Court
Louisville, KY 40241
January 23, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to show my support for the settlement in the
Microsoft antitrust case. Your efforts in supporting the settlement
I gratefully welcome. Microsoft has basically agreed to what was
asked of it, as well as agreed to some terms that were not even
addresses in the original complaints. Now is the time to move on
toward renewed innovation and improvement in the American computer
technology industry.
The settlement will lead to Microsoft working more closely with
its partners in the software industry than it already does.
Microsoft will document and disclose the internal code for the
interfaces of its Windows programs some other industry companies can
make their programs work more efficiently with Windows. Microsoft
will provide computer makers a list of established, uniform terms
and prices so everyone will know what the deal is, rather than
negotiate privately. A technical committee of software experts will
monitor Microsoft to ensure that the terms of the settlement are
met. These are big concessions and compromises of Microsoft's legal
rights to cooperate with its industry and resolve the court case.
I appreciate, and thank you for, your efforts to see that this
beneficial settlement is approved. Your leadership is appreciated.
Sincerely,
Dr. Manuel B. Velarde
MTC-00028909
From: John A. Beatson III
To: Microsoft ATR
Date: 1/28/02 6:55pm
Subject: Microsoft Settlement
Thank you for this opprotunity to voice my opinion.
The Microsoft settlement solution offered by the Justice
Department is a sham, window dressing to cover a decision to back
out of the whole enterprise. The settlement is so weak as to be
meaningless. Remeadiation to those who were harmed virtualy non-
existant. Enforcement mechanizms are flimsey and will be
ineffectual.
The Justice Department tried to enforce an agreement with
Microsoft with a weak settlement in the past. They failed because
the enforcement mechanizms relied on good faith by Microsoft instead
of effective rules and procedures. The result was a further
solidification of the Microsoft monopoly, companies and products
driven from the market place, and an outrage from the government
that was embarassing given that a blind man could have seen it
coming.
Don't repeat history. The only effective settlement is one where
the remedy fixes the problem and the required remedial actions can
be enforced. Enforcement can not rely on good faith by Microsoft,
not then, not now, not ever.
MTC-00028910
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:56pm
Subject: Microsoft Settlement
I urge you to accept this settlement.
MTC-00028911
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 6:55pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Tom Howe
1033 NW 9th
Moore, OK 73160-;1811
MTC-00028912
From: Frank Murphree
To: Microsoft ATR
Date: 1/28/02 6:55pm
Subject: Microsoft Settlement
828 Cooke Street
West Helena, AR 72390-;1409
January 14, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am happy to hear the Microsoft case has settled. I urge the
Judge reviewing the case to approve the settlement so all parties
may focus on more important matters.
While I do not agree with the government's taking action against
Microsoft in the first place, I am in favor of the settlement. Its
terms are reasonable, and are in the public interest. Consumers will
benefit from the settlement, as Microsoft will be free to go about
its business producing quality software. Microsoft's competitors
will clearly benefit from the agreement. They will be made privy to
Microsoft's otherwise confidential operating information. They will
also benefit from Microsoft's agreement to make it easier for
computer manufacturers to install other company's software on their
computers.
The settlement will also provide much needed certainty to the
tech industry. This can only help our American economy, especially
in a time of recession. I am hopeful this matter will come to a
speedy resolution. Thank you.
Sincerely,
Frank Murphree
MTC-00028913
From: John Brugger
To: Microsoft ATR
Date: 1/28/02 6:59pm
Subject: microsoft settlement
it is my opinion that the settlement proposed by the company is
ultimately the best solution for all concerned.
MTC-00028914
From: Lydia G. Rich
To: Microsoft ATR
Date: 1/28/02 7:01pm
Subject: Microsoft Settlement
35 Hyatt Drive
Warren, PA 16365-;3527
January 10, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to express my support in the recent settlement
between Microsoft and the federal government. It is with sincere
hope that this is the end of any litigation on the federal level.
Considering the terms of the agreement, Microsoft did not get off
easy at all. In fact, due to this agreement, Microsoft has to make
several important changes to the way that they handle their
business.
For example, Microsoft has agreed to disclose and document for
use by its competitors various interfaces that are internal to
Windows'' operating system products. This alone is a first in
an antitrust settlement. Microsoft has also agreed to make available
to its competitors, any protocols implemented in Windows''
operating system products that are used to interoperate natively
with any Microsoft server operating system.
With the many terms of the agreement, I see no reason for the
government to pursue further litigation on any level against
Microsoft. Not only would it be a waste of time, but a waste of
money as well. I fully trust that you would agree. Thank you.
Sincerely,
Lydia Rich
cc: Senator Rick Santorum
MTC-00028915
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:00pm
Subject: MICROSOFT SETTLEMENT
James W. McCoy
RR 3 Box 3412
Naples, TX 75568
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I write to you today to express my support of the recent
settlement reached between the Department of Justice and Microsoft.
It is my understanding that at the end of January the Attorney
General will decide whether or not to enact the terms of the
settlement. This is
[[Page 28475]]
a very important decision. I believe that enacting the settlement
would be the most beneficial course for our country, economy, and
technology industry.
The terms of the settlement call for the creation of a technical
review committee. This committee will have the job of overseeing
Microsoft's action. They will ensure that Microsoft complies with
the terms of the settlement agreement. This should ease those who
fear Microsoft's compliance.
I hope that the Department of Justice enacts this settlement
quickly.
Sincerely
James McCoy
MTC-00028916
From: Harlan Wilkerson
To: Microsoft ATR,
[email protected]@
inetgw
Date: 1/28/02 7:02pm
Subject: Proposed Settlement (with corrections)
I feel that adoption of the proposed settlement is not in the
public interest.
The Appeals Court ordered the District Court to craft a remedy
that would ``unfetter [the] market from anticompetitive
conduct,'' to ``terminate the illegal monopoly, deny to
the defendant the fruits of its statutory violation, and ensure that
there remain no practices likely to result in monopolization in the
future.''
Windows has gained it's market position not by consumer demand,
but by Microsoft's almost total control of production. In the past,
Microsoft has used exclusive OEM licensing and marketing incentives
to pass along the so-called ``Microsoft tax'' to every PC
consumer. Most of the top 20 OEMs simply don't offer PC systems
without the Windows operating system pre-installed. Microsoft has
urged (and rewarded) the OEMs to ``just say no'' to buyers
who request a so called ``naked PC'' (a PC with no pre-
installed software). This is ironic since the OEM's associated
support costs should actually be reduced. The OEMs that do offer
alternatives to Microsoft's Windows charge essentially the same
price for non-Windows models. This is true even for those with pre-
installied versions of absolutely free operating systems e.g. Linux,
or the BSDs. These operating systems can be freely downloaded and
installed on all of a consumers PCs without any licensing fee
whatsoever. Consumers who have opted to install these free operating
systems (on their own) are usually frustrated in any attempt to
obtain refunds from the OEMs for their unused Windows licenses. This
despite provisions for a refund from the OEM that are contained in
the Microsoft Windows EULA. It's no accident that consumers can't
determine the fair price of a PC under these circumstances. This was
highlighted during the trial by a grass roots movement that
culminated in a ``Windows Refund Day''. Consumers who
purchase Microsoft Windows through an OEM usually have no standing
in class action suits brought against Microsoft.
Nothing in the proposed settlement prohibits Microsoft from
continuing to offer OEMs existing forms of advertising or marketing
incentives (on an equitable basis) to include Windows on every
machine, or to decline to sell ``naked PCs''. We currently
are in the worst economic recession in at least a decade. It's
doubtful that some of todays OEMs will even survive. Nonetheless,
many of these same ``equipment manufacturers'' won't sell
their equipment at any price without pre-installed software from
Microsoft. This is hardly the behavior of an unfettered market.
Microsoft should be required to post the costs of it's OEM products
on a public web site, and they should be precluded from offerring
any incentives to OEMs to curtail the sales of ``naked
PCs''.
To paraphrase the Appeals Court by the time this case is
resolved the facts will be ancient history, but the effects of the
illegal acts will have caused harm nonetheless. The proposed remedy
does nothing to ``deny to the defendant the fruits of its
statutory violation''. Microsoft staunchly denies any wrong
doing in it's public statements, retains billions in capital, and
isn't even held liable for the people's costs in prosecuting the
case.
In crafting a remedy that terminates the illegal monopoly or
eliminates practices likely to result in monopolization in the
future it is important that hearings be held to investigate how we
got here in the first place. The Federal Trade Commission and DOJ
took up Microsoft's trade practices involving OEM per-machine-
licensing of MSDOS. During this case a private antitrust suit was
brought against Microsoft by Caldera. That suit was settled but
provided no relief for the millions of consumers who purchased
Digital Research's Disk Operating System. Digital publicly
complained that they had sufferred from Microsoft's anticompetitive
per-machine-licensing scheme and were wrongly excluded from the
Windows 3.1 beta testing program--;even though they were
participants in beta testing earlier versions of Windows. Digitat's
Operating system didn't compete with Windows, but did compete with
MSDOS. At the time these were separate Microsoft retail products.
The respected magazine and online publication Dr Dobbs Journal
revealed that the Windows 3.1 beta contained code that was only
useful for detecting Digital Research DOS. This code gave the user
error messages or simply halted a users machine whenever Digital
Research DOS was detected. Windows version 4 and MSDOS version 7
were eventually bundled into Windows 95 which carried exclusive OEM
license agreements that didn't permit OEMs to use or dual boot other
operating systems like Digital's DOS. For example, some Hitachi PCs
had a hidden copy of the BeOS that consumers could only discover and
activate using instructions on Hitachi's web site. Digital, Hitachi
and BeOS have since exited the PC OEM and PC Operating system
business. For it's part the DOJ has complained publicly that
Microsoft violated the first consent agreement. The practice of
monopolies denying companies that compete in any software category
timely access to APIs, and the practice of bundling separate retail
products for anticompetitive reasons, and/or using exclusive
licensing agreements to harm competitors is a common and recurring
theme. The judge was correct in denying Microsoft's request to limit
the scope of the remedies without an evidentiary hearing, and the
DOJ was premature in dropping their case in-main on product
bundling. Microsoft is engaged in world-wide trade and the DOJ and
European antitrust regulators seem uncoordinated and out of step.
The European regulators have taken up complaints that Microsoft has
withheld access to Windows server software API's that are necessary
for interoperability with other network operating systems, and the
bundling of Windows Media Player in Windows XP. Microsoft is not so
quietly announcing it's plans for a single Internet logon
authentication service it's calling ``.NET''. The stated
objective of this initiative is to leverage the Windows monoply in
order to create a new (Internet) monopoly. While these practices may
or may not be lawful, it's doubtful that all of the practices likely
to result in monopolization in the future have been eliminated
without a single hearing on the issues here in our courts. Most non-
Microsoft operating systems provide a boot manager that allows
consumers to use several operating systems. In fact, Microsoft
includes a boot manager that allows consumers to use multiple
(older) versions of Windows e.g. Windows 2000 and Windows 98. The
act of installing a Microsoft operating system doesn't invalidate a
consumers licenses for a competitors products. Yet installing (or
reinstalling) Microsoft Windows will always result in a consumers
other operating systems becoming inaccessible. This is
anticompetitive behavior. Microsoft should be required to
automatically add other operating systems to it's boot manager in
the same manner that it adds it's own products.
The DOJ and Microsoft appear to have forgotten that this case is
about Personal Computers if a consumer shops for a PC, and makes a
purchase based on the software selection, it makes no sense to
provide Microsoft the arbitrary right within fourteen days (or some
other later date) to delete icons or programs and substitute their
own because they have judged the competitors product lacking in some
quality or state they deem essential.
Microsoft has stated that their power to innovate or bundle
applications into Windows XP is essential to the economic recovery
of the PC industry. The PC OEMs have testified that there is no
viable alternative to Windows. In the past year alone private
business LANs and Internet companies have suffered billions of
dollars in damages caused by trojan or virus programs that
specifically targeted Windows PCs. The Executive and Legislative
branches of the Federal Government have recognized the Internet as a
vital piece of our national and international infrastructure. They
have established agencies tasked with it's protection. Indeed one
reason for pursuing the proposed settlement after September 11 was
``the national interest'' It's hard to understand why much
of Microsoft's ill gotten monopoly shouldn't be considered an
essential public facility. Certainly consumers have a right to
migrate their own itellectual property out of proprietary Microsoft
file formats. Microsoft should be required to publish the file
format information needed
[[Page 28476]]
for other applications to interoperate with files created by MS
Office. This is certainly the case with regard to Apple Computer
users who have already been threatened with the cancellation of the
Apple version of MS Office. In conclusion, the court combined the
individual State and DOJ cases. A settlement that doesn't include
half the plaintiffs is at best not a settlement.
Sincerely,
Harlan L. Wilkerson
Hutchinson, KS. 67501
MTC-00028917
From: Peggy Broyles
To: Microsoft ATR
Date: 1/28/02 7:00pm
Subject: MICROSOFT SETTLEMENT
Dear Mr. ASHCROFT;
It is good to see the Justice Department has ended its long and
very costly antitrust lawsuit against Microsoft. Microsoft has
produced wonderful software for the world. They should be allowed to
continue.
No more action should be taken at the federal level against
Miicrosoft.
Thank you ,
Arthur & Peggy Broyles
MTC-00028918
From: Howard Griffen
To: Microsoft Settlement
Date: 1/28/02 6:55pm
Subject: Microsoft Settlement
Howard Griffen
1436 Baytowne Circle E
Destin, FL 32550
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Howard Griffen
MTC-00028919
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:03pm
Subject: Microsoft Settlement
Mary Breivik
25010-;38th Avenue South
Kent, WA 98032
January 28, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am in favor of Microsoft and the Department of Justice
settling in the case. The settlement agreement the two sides reached
in November adequately addresses the concerns raised by the case's
plaintiffs. There is really no need to spend any more money on
litigating this case.
I really appreciate the way Microsoft has handled itself
throughout the case. It has answered the allegations of unfair
business tactics by making fundamental changes to key aspects of its
operations. It will license Windows to the 20 largest computer-
manufacturing companies at the same price and on the same terms.
Additionally, Microsoft agreed to grant computer manufacturers the
right to change the configuration of Windows. This will allow the
manufacturers to replace features of Windows with software programs
designed by Microsoft's competitors, which will give consumers a
greater choice of products.
The settlement agreement is the appropriate remedy to the
complaints lodged against Microsoft, and, in fact, it goes beyond
the scope of the original suit. Microsoft has demonstrated good
faith in agreeing to the settlement terms. Nothing more will be
gained by dragging this case back to the courts.
Thank you for your attention.
Sincerely,
Mary Breivik
MTC-00028920
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:03pm
Subject: Microsoft Settlement
Dear Sirs:
As an IT (Information Technology) professional for 35 years, I
offer the following opinion.
Microsoft has never been an innovator, but always an imitator
who targets successful technologies developed by others and then
competes with them on the heavily skewed playing field of
Microsoft's monopoly control of the PC operating system.
Because of the explosive rate of change in IT hardware so far,
there has always been room for innovation by outsiders despite
attempts by any entity to control or monopolize any technology. This
has created an unprecedented climate of innovation and competition
in most IT areas, empowering users with the tools to maximize their
output.
However, in the specific field of PC operating systems, this has
not happened. Most users have been hobbled with operating systems
from Microsoft which are far behind other systems available in ease
of use, ease of maintenance, portability, stability, transparency,
security, efficiency, etc. This has been possible because of the
abuse of the monopoly position that Microsoft has in the PC
operating system arena.
If very strong corrective measures are not implemented in the
very near future, Microsoft will have achieved a monopoly position
over all software used by most PC, Internet, and Communications
Device users with the result that competition and thus innovation
will be extremely limited, and costs and capabilities will be
determined solely by Microsoft instead of the free market.
The current settlement proposal by the USDOJ is not adequate,
and should be enhanced to include the original demands made by the
prosecutors of this suit.
MTC-00028921
From: hap
To: Microsoft ATR
Date: 1/28/02 7:03pm
Subject: Microsoft settlement
109 Hosmer Street
Hudson, MA 01749-;3246
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I am wish to express my support for the settlement reached in
the government's case against Microsoft. It's time to end this this.
I want the government to stop hounding Microsoft so they can
continue to innovate, create more jobs, provide more innovative
products, and otherwise help our economy recover just like President
Bush wants us to.
Before Microsoft created the Windows product only the
technically adept were able to use a computer not to mention the
internet. Lets be fair but let's not overly punish a company for
being aggressive and competitive. I urge that the government accept
the settlement as it has been drafted. Let's get on with business we
certainly have many other important challenges to tackle. Let's work
together to improve our economy and keep the United States free of
terrorism.
Please help us
Sincerely,
Richard Lefebvre
email copy: Representative Marty Meehan
MTC-00028922
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:04pm
Subject: Microsoft Settlement
Dear Department of Justice:
Please accept the settlement of the Microsoft case. This country
has been through enough distractions. Let's see if Microsoft can use
their engery to create software to help in this war on terrorism. I
bet they will be on the cutting edge of this fight on terrorism and
military deployment logistics, etc.
They do not need any more time and money spent in court to
defend their company.
Thank you and God Bless America.
Carl Munson,
CEO Bay Coffee Service,
Corpus Christi, Texas
[[Page 28477]]
MTC-00028923
From: Carl Schnurr
To: Microsoft ATR
Date: 1/28/02 7:04pm
Subject: Microsoft Settlement
Enclosed please find my comments on the ongoing MS litigation.
Carl
Carl Schnurr
Group Program Manager, Microsoft
Salt Lake Games
8071 S 865 E
Sandy, UT 84094-;0697
January 24,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I find it hard to believe that the state of Utah has the time or
the money to pursue litigation against Microsoft. Our projected
deficit for this year is nearly two hundred million dollars, and no
good can come of further time in the federal courts. My state, along
with eight more of the eighteen plaintiff states in the Microsoft
antitrust case, are currently seeking to overturn a perfectly
reasonable settlement in the hopes of making more of a profit for
themselves. I am writing to express my dismay, not only that the
suit has gone on this long, but also that there is the possibility
that it may drag out even longer. Microsoft, the Justice Department,
and the plaintiff states are not the only parties that have felt the
negative effects of this suit--;the economy has declined even
further, the consumer has suffered, and progress within certain
aspects of the technology industry has lagged. I do not believe that
the pursuit of further litigation is in anyone's best interest.
The settlement that Microsoft and the Justice Department have
managed to reach is fair and reasonable. Microsoft has agreed, for
example, to reformat future versions of Windows so that non-
Microsoft software will be supported within the Windows operating
system. Moreover, Microsoft plans to document and disclose various
source code, interfaces, and protocols integral and native to the
Windows operating system to facilitate customizability within
Windows and to allow non-Microsoft servers to interoperate natively
with Microsoft servers. Microsoft's competitors will be able not
only to use Windows as a platform to market their own software, they
will also have the opportunity to reconfigure Windows so as to
promote their own programs. I believe the settlement is just. I see
no need to pursue additional litigation on the federal level. This
has gone on far too long already. I urge you to support the
settlement and finalize it as soon as possible.
Sincerely,
Carl Schnurr
MTC-00028924
From: Donald Delahaut
To: Microsoft ATR
Date: 1/28/02 7:04pm
Subject: Microsoft Settlement
The attachment was faxed to Mr. Ashcroft on 1/27/02 about
9:30pm.
Donald Delahaut
260 Fernledge Drive
New Kensington, PA 15068-;4614
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing today to encourage the Department of Justice to
accept the Microsoft antitrust settler member of the technology
industry, I warn to see Microsoft and the industry to move on The
suit on for over three years and has caused great damage [o the.
entire industry. Some say that Microsoft is being treated leniently
In fact the agreement is quite tough Microsoft document and
disclose, for use by its competitors, various interfaces flint are
internal to Windows'' system products. Microsoft is virtually
handing over their company secrets to their competitors, getting off
easy in order to move forward Microsoft b giving in to a lot The
terms of the settlement are fair and t. accepted.
CC Senator Rick Santorum, Representative Melissa A. Hart
MTC-00028925
From: John Heine
To: Microsoft ATR
Date: 1/28/02 7:04pm
Subject: Microsoft Settlement
John J. Heine
751 Emerald Drive
Lancaster, PA 17603
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am e-mailing to you today to express my support of the recent
settlement between Microsoft and the Department of Justice. After
three long years, the settlement is long overdue. As a corporation,
Microsoft made concessions above and beyond what was necessary.
Although litigation was unnecessary in the first place, it is best
to let the issue rest with this settlement.
Again, the settlement sets terms that are beyond the scope of
the original litigation. The disclosure of internal interfaces is an
example of the generous nature of this settlement on behalf of
Microsoft. Under this provision, Microsoft is documenting all of the
internal interfaces on the Windows'' operating system products.
These documents are being forwarded to competitors of Microsoft for
their review. This is unprecedented in any type of antitrust
legislation. Further, it is proof of Microsoft's desire to settle
the issue. This haste is imperative.
Letting the settlement stand will enable Microsoft, the
technology industry, and our economy to recover. In this time of
economic unrest, this should be the focus of our government's
efforts. I trust that no more action against Microsoft should be
taken at the federal level.
Sincerely,
John J Heine
cc: Senator Rick Santorum
MTC-00028926
From: Robert Habas
To: Microsoft ATR
Date: 1/28/02 7:04pm
Subject: Antitrust Settlement with Microsoft
The government antitrust settlement with Microsoft lacks
effective enforcement and it fails to prohibit a number of
anticompetitive licensing practices. It's taking away the chance for
real competition in the operating system market.
MTC-00028927
From: saeed bhatti
To: Microsoft ATR
Date: 1/28/02 7:05pm
Subject: Microsoft settlement
Judge Kollar-Kotally,
My name is Saeed Bhatti and am resident of New Jersey. I came to
know through a very close friend about some of the aspects of the
Proposed Settlement made by the Justice Department with Microsoft,
and I am very unhappy. Firstly, how could the Justice Department
grant Microsoft a government-mandated monopoly of the software
industry and even worse--;other technology markets? Definitely
such decision would seriously jeopardize all serious
competitors--;both now and in the future. We're living in a free
and open market society, and one of the advantages of having such a
system is that people have the right to choose from among several
brands of one single item, and in this case, software. I would want
to see a healthy competition of several software companies, in order
to make prices competitive as well. Secondly, how could the Justice
Department condone Microsoft for violating the antitrust law and
even for its illegal conduct e.g. bribing other competitors in order
to stop their operation. What is the Justice Department's motive
behind this action?
Your Honor, I would want Microsoft be brought to justice
upholding to democratic values. Sadly to say that monoplies are the
trade mark of monarchs and communist governments.
Very Truly,
Saeed Bhatti
MTC-00028928
From: ruthweeb
To: Microsoft ATR
Date: 1/28/02 7:05pm
Subject: Microsoft Settlement
January 27, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington DC 20530-;0001
Dear Mr. Ashcroft:
I am writing in full support of the recent settlement between
the US Department of Justice and Microsoft in the antitrust case. I
feel this case has gone far too long and I can hardly believe what
we as taxpayers have paid to have this continued. I believe the
terms of the settlement is very fair and certainly does not let
Micro- soft off easy. They stipulate that Microsoft will have to
disclose interfaces and protocols that are internal to Windows
operating system products. They also will be granting computer
makers broad new rights to configure Windows so that non- Microsoft
products can be promoted more easily.
[[Page 28478]]
The nine states that want to continue litigation should be
reprimanded and the settlement should be implemented as soon as
possible. Please do what is best for the American public by ending
this dispute. Thank you.
Sincerely,
Ruth I. Weeber
3557 Sunridge Drive South
Salem, Oregon 97302
[email protected]
MTC-00028929
From: Renate Wilford
To: Microsoft Settlement
Date: 1/28/02 7:01pm
Subject: Microsoft Settlement
Renate Wilford
3548 Florian Terrace
Palm Harbor, FL 34685-;2663
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Renate Wilford
MTC-00028930
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:05pm
Subject: Microsoft Settlement
I feel the provisions of the agreement are fair. The case should
be settled and let Microsoft go about their business--;which is
one of the most successful businesses in the United States. Get off
their back.
Aline Gregory
6451 E. Sugarloaf St.
Mesa, AZ 85215
MTC-00028931
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:06pm
Subject: Microsoft antitrust deal
To: Renata Hese
I'm writitng this letter in response to the microsoft anti trust
case that is still pending. I have to say as a consumer there's no
question that Microsoft still has a monopoly on the personal
computer and the verdict's established by the DOJ did little to stop
microsoft from controlling the OS system market. I really think the
DOJ should of done more to protect the consumer from falling into
the hands of microsoft's control. My solution to this problem is
that law's should be set on how pc computers are sold and what
applications can be preloaded so that consumers can have more
choice. If you go into a store to buy a pc obviously you going to
have to buy MS windows O/S whether you like it or not. Because
Microsoft control's the operating system they control the software
market. Laws should be set that computers have to be sold with out
the Windows system installed so that consumers can purchase the
windows software they wan't not what comes on the computer. In the
software market if you don't get your product's pre-installed on
computers you can't compete in a fair open market. This to me is the
solution to the problem and everybody want's to compete in a fair
market. I hope this brings some closure to this case and everybody
can win from it.
Thank You for your time.
Roy Ringgenberg
MTC-00028932
From: Charles Dorian
To: Microsoft ATR
Date: 1/28/02 7:06pm
Subject: Microsoft Settlement
Charles Dorian
3521 255th Lane SE #19
Issaquah, WA 98029
January 28, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I support the Department of Justice's recent efforts to settle
the Microsoft antitrust lawsuit. Continued litigation of this case
is not in anyone's best interest. I urge you to take steps to ensure
an expedient resolution of this lawsuit.
The terms of the settlement agreement are fair and reasonable.
Microsoft has agreed to a wide range of restrictions on the way it
conducts business. They have agreed not to retaliate against those
who promote software that competes with Windows. They have also
agreed to implement a uniform price list for the licensing of
Windows and to be monitored by a technical review committee that
will ensure Microsoft's compliance with the settlement agreement.
The settlement agreement accomplishes the goal of increasing
competition. Pursuing this case through more trial will not produce
a better result. Accordingly, it is strongly recommended that the
Department of Justice approve the settlement agreement.
I am a computer owner for more than twenty years who has used
many companies programs in my business and personal activities. I am
knowledgeable of the issues involved in this case.
Thank you for considering my comments on this matter.
Sincerely,
Charles Dorian
MTC-00028933
From: JACK MILLS
To: Microsoft ATR
Date: 1/28/02 7:08pm
Subject: Microsoft Settlement
PLEASE ACCEPT THE ATTACHMENT IN SUPPORT OF THE MICROSOFT
SETTLEMENT.
REGARDS,
JACK MILLS
MTC-00028934
From: C. Dean Larsen
To: Microsoft ATR
Date: 1/28/02 7:06pm
Subject: Microsoft Settlement
I don't think the federal government and some of the other
states which are included should settle with Microsoft under the
current proposed terms. Microsoft has been a market predator! It has
and continues to use its vastly superior position to unfairly
dominate and illegally disadvantage small software companies.
Microsoft will continue to do so after the current proposed
settlement just as the tobacco industry has done. Fortunately, there
are still many states unwilling to settle under the current proposed
terms.
Sincerely yours,
Dean Larsen
MTC-00028935
From: Floyd, Terry (DHS)
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 7:07pm
Subject: Microsoft Settlement
I am a Microsoft Certified Systems Engineer whose livelihood
depends on the continuing success of the company. As such, you'd
think I'd be one of the people cheering most loudly for Microsoft to
prevail in this long and difficult antitrust case. My own self-
interest aside, however, I truly believe that Microsoft has done a
great deal of harm to their competitors and the information
technology industry as a whole through their insidious behavior.
Beyond that, the more I learn about Microsoft's products, the less
impressed I am with the quality of their technology. Just because
they are the most successful software company in the world does not
mean they make the best products. In many cases, their competitors
have superior products, but they have so little power in the
marketplace that they are struggling to survive in the current
economic climate.
It has been proven beyond doubt that Microsoft violated the law
with many of their business practices. Many other questionable
practices that I have seen them implement over the past five to ten
years were not even addressed during the antitrust trial. Microsoft
is even now trying to prevent a competing product named Lindows from
ever coming to market. Lindows is a new distribution of the open
source Linux operating system that will have embedded WINE
capabilty, allowing it to run Windows applications in a Linux
environment. This is a truly innovative product with the potential
to be quite
[[Page 28479]]
successful. But Microsoft has filed a lawsuit against the small
company that is developing Lindows, claiming that the very name of
the product infringes upon their trademarked Windows operating
system. Personally, I can see no way this suit can succeed, and I
hope the judge who hears the case throws it out as being without
merit, but Microsoft has the power and the resources to crush any
and all of their competitors. Lindows is a small start-up company
with a great idea, but few resources. Microsoft could use its legal
warchest consisting of almost limitless money and attorneys to keep
the product from ever being available to customers. So much for our
freedom of choice.
Moreover, I believe Microsoft has violated other provisions of
the Tunney act to lobby the government on its behalf. Last week, I
received in the mail a brochure from a group named ``Americans
for Technology Leadership'' which urged me to send an email to
[email protected] to support Microsoft
against attacks by their competitors. I normally throw these kinds
of junk mail brochures in the garbage, but later that same day, I
received a telephone call from someone at Americans for Technology
Leadership who also urged me to send an email to voice my support
for Microsoft and its struggle to ``innovate.'' Now, being
a curious fellow, I decided to visit the website of Americans for
Technology Leadership at http://www.techleadership.org. I guess I
shouldn't have been surprised that the site was cluttered with
Microsoft advertisements. This group, a supposedly
``independent'' organization of companies and individuals
dedicated to limiting government regulation of technology, is
actually funded primarily by Microsoft. I have a feeling that ATL
had access to the names, addresses and phone numbers of all
Microsoft Certified Professionals and was calling us to rally our
support behind the company.
I don't really know whether or not this activity violates any
laws, but I resent being used as a pawn in this legal circus. I urge
you to take strong action against Microsoft to prevent them from
using their monopoly power to prevent other companies from
developing and marketing products and services that compete with
their offerings. I believe in free minds and free markets and in the
long run, I do believe the best products will prevail. If these
products happen to come from Microsoft, then they deserve to
succeed. But if such products come from Novell, or Red Hat, Caldera,
or Sun, or Oracle or even Lindows, then these products at least
deserve an equal chance to succeed.
I for one, will be one of the first in line to purchase Lindows
if Microsoft will ever allow it to reach the marketplace.
Terry Floyd, MCSE, MCDBA, CNA
Associate Information Systems Analyst
California Department of Health Services
Division of Communicable Disease Control
Information Technology Unit
Phone: (510) 540-;2866
Pager: (510) 382-;4814
MTC-00028936
From: dunmu ji
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 7:12pm
Subject: Microsoft Settlement
Microsoft is a company who is doing business and has people's
trust. Making Microsoft uglier and pay to competitor will not save
the economy that has been not good for two years. Should dotcoms or
any ``bubble'' company sue Microsoft for their lose since
anybody was/is using computer software? Many bad news from big
companies have already been damaged people's confident about the
economy. Get the Microsoft case to be settled as soon as possible.
We need go on.
Xiaoping Ji
MTC-00028937
From: Chris Maynard
To: Microsoft ATR
Date: 1/28/02 7:09pm
Subject: Microsoft Settlement
Good Evening,
I am writing to comment on the Microsoft trial. While I had
planned to send my own comments, I found them already written at the
website below. http://www.kegel.com/remedy/remedy2.html In short, I
do not believe that the proposed settlement will be successful in
stopping Microsoft from enjoying and profiting from their monopoly.
Thank you,
Chris Maynard
Systems Admin Flippin,
Densmore, Morse, & Jessee
[email protected]
MTC-00028938
From: Robert Habas
To: Microsoft ATR
Date: 1/28/02 7:08pm
Subject: Antitrust Settlement with Microsoft
The government antitrust settlement with Microsoft lacks
effective enforcement and it fails to prohibit a number of
anticompetitive licensing practices. It's taking away the chance for
real competition in the operating system market.
Robert Habas
Computer Connections
St. Helens, Oregon
(503) 397-;6726 [email protected]
http://www.columbiapc.com
MTC-00028939
From: Rodney Snow
To: Microsoft Settlement
Date: 1/28/02 7:04pm
Subject: Microsoft Settlement
Rodney Snow
81 Lemon Grove
Irvine, Ca 92618-;4510
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Rodney Snow
MTC-00028940
From: ``SSISA'' Daniel Garber
To: Microsoft ATR
Date: 1/28/02 7:09pm
Subject: Microsoft Settlement
In my judgment, free choice of the best software product has
been hindered.
I have not had the benefit of free choice of all of the
alternatives in the market.
I want to be able to choose a product other than Microsoft, if I
should decide to do so.
Daniel Garber
Surgical Services Information Systems Administrator (SSISA)
Harborview Medical Center Operating Room
325 9th Avenue, Box #359890
Seattle, WA 98104 USA
206-;731-;4520 voice
206-;731-;6577 fax
206-;986-;7505 pager
MTC-00028941
From: Donald Loptien
To: Microsoft Settlement
Date: 1/28/02 7:03pm
Subject: Microsoft Settlement
Donald Loptien
7450 Deerfield Rd
Longmont, CO 80503-;8788
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
[[Page 28480]]
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Donald Loptien
MTC-00028942
From: Spencer, Pamela S
To: `microsoft.atr(a)usdoj.gov'
Date: 1/28/02 7:11pm
Subject: Microsoft Settlement
January 28, 2001
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
As a fellow Republican in Rep. Tom Delay's district I wish to
express my support of the settlement reached last November between
the Department of Justice and the Microsoft Corporation. It has now
been 3 years since the Justice Department began the litigation
process against Microsoft. During this time countless dollars have
gone to court mediators who endlessly debated the merits of this
case. In times where budgetary resources are becoming increasingly
scarce this action is increasingly appalling. Three years has been
too long. I cannot imagine there is anything more to discuss.
Once more, the settlement that was reached contains many
concessions on behalf of Microsoft. in an attempt to settle the
dispute Microsoft has been willing to agree to these terms despite
their lack of guilt in the case. Microsoft has agreed to design
Windows XP with a particular mechanism that will allow users to add
competing software into the system. This will revolutionize the way
our operating systems are configured.
I believe that if Microsoft is willing to make these changes,
the settlement should be enacted. I strongly support the settlement
and look forward to the end of this case.
Sincerely,
Pamela Spencer
3006 Oakland Dr.
Sugar Land , TX 77479-;2451
cc: Representative Tom DeLay
MTC-00028943
From: Greg Brockway
To: Microsoft ATR
Date: 1/28/02 7:12pm
Subject: Microsoft Settlement
Leave Microsoft alone. We are a lot better off with them than
without them. Maybe they should move to Canada and give them the
taxes.
Greg A. Brockway
MTC-00028944
From: Harry Dullys
To: Microsoft ATR
Date: 1/28/02 7:13pm
Subject: MICROSOFT Settlement
Harry Dullys
722 Valley Street
Orange, NJ 07050
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Microsoft has been involved for more than three years in the
resolution of its antitrust case. I believe that the time has come
to put this matter behind us. I also believe that the current terms
serve the best interests of the public. As the settlement agreement
stands, the company will be more competitive in the marketplace, and
as a result, consumers worldwide will benefit.
It is my understanding that Microsoft has consented to design
future versions of Windows that make it easier for software
developers to install non-Microsoft programs in the operating
system--;among many other concessions. Surely this indicates the
corporation's commitment to comply with the law and the general
needs of consumers and those in the IT field.
I hope that the Department of Justice will see fit to ensure
that the agreement remains in its current form, lest three
additional years of negotiations become necessary. Thank you for
your attention.
Sincerely,
Harry Dullys
MTC-00028945
From: Bob (038) Adie Santore
To: Microsoft ATR
Date: 1/28/02 7:13pm
Subject: Microsoft Settlement
TO : Renata B. Hesse,
Antitrust Division,
US Department of Justice
FROM : Robert Santore, Concerned Citizen
I believe America needs closure on this matter once and for all.
How long has it been, how much money will it take...and how long
will it continue to be?
The Federal Government must state it's case, derive it's
penalties, seek resolution, and end it's relentless efforts to drag
this matter on any further--;perhaps into the next
administration. They need to set a time limit. The longer the
Justice Department takes to administer it's justice, the public will
be thoroughly disgusted, and America once again will receive her
enormous share of worldwide ridicule.
This action is a waiste of precious taxpayer resources, and most
of us believe the action by the previous administration was
politically motivated, fueled by Microsoft's competiton. No one has
yet to prove that the American citizen or the software industry has
been hurt by the alligations of anti-competive behavior. Is it worth
the cost? And, while the Government continues it's aggressive
pursuits, we have real serious problems to contend with...such as
the Enron case, where thousands of employees and investors were
sucker-punched, collapse of a major corporation, lost employment and
retirements. That's the real crime. And that's precisely where the
Justice Department should be spending it's efforts. The continuous
and incessent attacks against Microsoft
MTC-00028946
From: Jr. Christopher Horton
To: Microsoft ATR
Date: 1/28/02 7:15pm
Subject: Microsoft Settlement
I am a Win98 user who is ``fed up'' with Microsoft's
bullying behavior. Linux and other operating systems wouldn't be so
popular if Microsoft actully ``listened'' to their
customers for once. I am all in favor of restoring consumer choice
to the computer market. Customers should be allowed to choose what
operating system they want on their PCs, not the ``big
box'' computer stores, and certainly ``not''
Microsoft!
Jr. Christopher Horton
[email protected]
MTC-00028947
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 7:17pm
Subject: Microsoft Settlement
I strongly urge the Department of Justice to accept the proposed
settlement as outlined by the appeals court. This litigation should
never have been brought in the first place. I use Microsoft products
daily and in no way do I feel they have taken unfair advantage in
their business practices. I also use Netscape as my internet browser
so I know there is a choice. Please accept the agreement so the
country and Microsoft can move on.
Dean Waldenberger
MTC-00028948
From: Hathai Sangsupan
To: Microsoft ATR
Date: 1/28/02 7:16pm
Subject: Microsoft Settlement
I just wanted you to know that I feel strongly that the proposed
Microsoft Settlement is a TERRIBLE IDEA!
MTC-00028949
From: Joe R. Wood, Jr
To: Microsoft Settlement
Date: 1/28/02 7:08pm
Subject: Microsoft Settlement
Joe R. Wood, Jr
607 Ridgeview Cir
Rocklin, CA 95677
January 28, 2002
Microsoft Settlement
U.S. Department of Justice-Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars,
was a nuisance to consumers, and a serious deterrent to investors in
the high-tech industry. It is high time for this trial, and the
wasteful spending accompanying it, to be over. Consumers will indeed
see competition in the marketplace, rather than the courtroom. And
the investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better
[[Page 28481]]
products for consumers, and not wasting valuable resources on
litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joe R. Wood, Jr.
MTC-00028950
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 7:18pm
Subject: Microsoft Settlement
The proposed settlement, while appearing to address the
anticompetitive behaviour identified in the 1998 complaint, is
deficient in several ways.
First and foremost, the complaint itself was, it may be
inferred, limited in scope, for the purposes of greater probability
of gaining a conviction or settlement, and for the purposes of
shortening the proceedings.
As such, there is much, reasonably well documented and widely
known in the industry, past behavior of an anticompetitive nature on
Microsofts part, which was not included in the complaint. This
behavior continues, and should be addressed in any settlement or
imposed finding by the court.
Specific activity, which is ongoing, was not identified, and
which must be stopped, includes the purchasing of software companies
dominant in their specific niche markets and providing multi-
platform software; purchasing the companies or
``poaching'' critical assets (eg employees) of companies
making development software (eg the Borland, past developers of
``C'' compiler which competed with Microsoft's product,
whose entire development staff was hired by MS, effectively crushing
Borland); and the contractual tying of distribution rights for
Explorer, to the use of Microsoft Software on portal internet sites
(among ISPs who operate servers and also supply browser software to
customers, effectively falsely boosting server market share as well
as extortionary pricing).
Another impact, not addressed, is the potential employment
market for software developers. By establishing, through its
predatory practices, an unnatural market with uncompetitive
salaries, Microsoft effectively established a salary cap in the
software industry, which has directly affected every single software
developer, as well as limiting the potential market for developers,
by establishing a closed market in many software solution areas, as
well as ``closed shop'' sectors in further areas and
placing high barriers to entry to competitors who might have opened
these sectors with enabling software (OS's, languages, middle-ware,
and open standards in the Open Source Software areas).
In addition to its bad corporate practices, Microsoft has:
established its own bad development practices (via its Certification
programs); broken the pre-existing ``mentor'' practice for
software development (by hiring, exclusively, college graduates or
college students) thus circumventing ``best practices''
indoctrination in the industry; demolished pre-existing
``competitive but cooperative'' market practice among
competing products (eg ability to import/export among differing word
processing packages); and established ``anti-marketing'',
the practice now coined ``Fear Uncertainty and Doubt''
(FUD), synonomous with Microsoft but used in other business sectors.
Additionally, the failure to adequately address many aspects of what
an operating system is itself designed to handle, such as
networking, security, file names, memory protection, etc, have been
dismal failures or ignored completely--;things which in a truly
competitive market would have spelled the end of a company failing
at such a basic level. All of these behaviors are anti-competitive.
All are harmful to consumers. All have had the effect of reducing
competition, raising prices, and limiting or eliminating development
of new features. All of these need to be addressed, effectively, in
any settlement or consent decree, or other court action against
Microsoft.
If the court were to see fit to also impose minimum standards on
any software deemed an effective monopoly, be it the operating
system, browser, complier, network stack, or similar, the protection
of consumer interests and businesses alike would be well serverd.
I hope these comments are useful in the settlement process.
Sincerely,
Brian Dickson
Arlington, VA
703-;564-;7246
MTC-00028951
From: DanLucky(a)MediaOne
To: Microsoft ATR
Date: 1/28/02 7:16pm
Subject: Microsoft
Dan Lucky
2455 S Ponte Vedra Boulevard
Ponte Vedra Beach, FL 32082
904-;827-;0098
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing on the occasion of the Justice Department's public
comment period on the Microsoft settlement. As an objective member
of the technology industry with 35 years of experience, working with
a competitive platform vendor (IBM) to the Windows operating system,
it seems that this case developed as a naive attempt of politicians
to placate the complaints of businesses (Sun, Oracle, Apple, etc.)
in their districts that have failed to gain their desired market
share in the software industry. The ensuing attempt at a break-up
was a punch in the face to free enterprise by a government
interfering where it doesn't belong, so I believe accepting this
compromise would be a major step forward for getting this economy
back on track and moving on from this horrible legal charade
instigated by envious ``losers''. I have seen this
``looser'' attitude over and over in this industry.
Microsoft has set a standard that most competitors don't like to
compete against. Though their rivals have mostly been victims of bad
marketing strategies and/or mediocre products, Microsoft is planning
to take several steps to level the playing field further. I believe
they will offer the top 20 computer manufacturers with equal pricing
for licenses of the Windows operating system without adding any
restrictions on the distribution or promotion of competitive
products, while allowing broad capabilities to arrange its platform
with a custom combination of Microsoft and non-Microsoft software.
They will also provide disclosure of their internal interfaces and
server protocols to assist software developers in the design
process. As you can see with the above examples, Microsoft is making
serious efforts to appease the rest of the marketplace. This is a
company that has helped move our economy forward by helping hundreds
of millions of consumers join the information age, and that should
be respected with a measured judgment. Any further action would be
unwarranted and more costly and difficult to implement, so please
proceed with this very fair solution. Thank you.
Sincerely,
Dan Lucky
CC:Microsoft's Freedom To Innovate Network
MTC-00028952
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:21pm
Subject: Microsoft Settlement
Dear Judge,
I am a student at the University of Southern California, and use
computers as one of the primary tools for education and learning. I
do not feel that allowing microsoft to abuse the anti trust laws is
allowing me to gain all of the possible learning tools for my major.
If they have a monopoly over software, I am limited to make my own
decisions in applications. PFJ is not enough. Thank you for taking
the time to read this.
God Bless,
Campbell Coulter
1247 W 30th St. #110
Los Angeles, CA. 90007
CC:[email protected]@inetgw,dklei
nkn@yahoo.
MTC-00028953
From: Rosemary Motisi
To: Microsoft ATR
Date: 1/28/02 7:20pm
Subject: Microsoft Settlement
To Whom It May Concern:
I came across today's deadline to comment on the Microsoft
settlement quite by accident. I have not been following the case
closely and consider myself no expert in these affairs. However,
when I did work in the software industry some years ago, Microsoft
was well-known for taking the spirit of competition too far. Amusing
pranks--;such as programmers on loan to competing software
developers--;purposely embedding errors into software to cause
distruption in the competing product's
[[Page 28482]]
release. If true, and these stories were widespread, Microsoft has
lacked a measure of integrity for a long time. The fact that the
company is offering chances at a ``prize'' for writing
letters in support of Microsoft and not seeing that in any fashion
as a ``bribe'' is typical.
I hope in our efforts to ``promote business'' we do
not overlook integrity and honesty and fair dealing.
What's good for Microsoft is not necessarily what's best for
America.
Thank you--;
Rosemary Motisi
MTC-00028954
From: The Okumuras
To: Microsoft ATR
Date: 1/28/02 7:23pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am a concerned citizen writing to you about the Microsoft
settlement. I ask that you ensure that the punishment is
commensurate with the criminal offenses of which Microsoft has been
convicted. Consider the amount of money they made in dealing
unfairly and brutally with other industry members in the pursuit of
profit. Does the current settlement penalize them to the degree of
the profit they reaped? I do not think so.
The current penalty does not seem to have any way of changing
the way this company operates. Any corporation that has used unfair
sales practices to gain an advantage cannot be trusted to police
itself. They have lost the right to be self-regulating by the gross
offenses of which a court has found them guilty. Any penalty that
does not change the way they do business is nothing more than a 21st
century version of jury nullification. Doesn't our pledge of
allegiance end with ``liberty and justice for ALL?''
Justice should be executed upon all lawbreakers regardless of how
much money they have or even the impact it might have on the
economy--;as bizarre as that may sound. My fear is that when
such crimes go relatively unpunished, it sends the message that
there is no justice. Our economy will recover but our values and
morals--;the bedrock of society--;will not recover if the
courts refuse to uphold the law. In fact, without commensurate
penalty, you are creating the very environment that allows companies
like Microsoft to continue breaking the law.
As a judge, you have an obligation to uphold the law. I urge you
to do so. Do not nullify the judgment of guilt by meaningless
penalties that neither right past wrongs nor ensure future wrongs
will not be committed.
Sincerely,
Kirk Okumura
130 Ashbrooke Ln
Aston, PA 19014-;1003
610.358.3337
MTC-00028955
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:24pm
Subject: Is it fair?
Judge Kollar-Kotally
My name is Asmat Khan and I live in New Jersey. I heard about
the some aspect of the Proposed settlement made by Justice
Department in Microsoft case and I am not satisfied with this
proposed settlement. It is not fair to give one company the rights
of software monopoly. We are living in a free country and I think
same rules applies to the software companies. I believe in the free
market where I can choose the product I want offered by different
and a competitive price. And it is fair with the software industry.
Your honor, I would want Microsoft be brought to justice
upholding to democratic values. Sadly to say that monopolies are the
trade mark of monarchs and communist governments.
Asmat Khan.
CC:[email protected]@inetgw
MTC-00028956
From: [email protected]@inetgw
To: Microsoft.atr(a)usdoj.gov
Date: 1/28/02 7:24pm
Subject: Microsoft Settlement
To whom it may concern.
As a Certified IT professional with 19 years experience in Unix
Systems administration, I would offer my comments on the Proposed
Final Judgment in the case of the US vs. Microsoft.
First I would like to applaud the DOJ on it's finding Microsoft
as a monopoly who has used illegal and unethical practices in order
to maintain and increase it's monopoly power. If Microsoft is allow
to continue it's current criminal behavior, it will extend it's
monopoly into yet other markets. Broadcast communications, Internet
broad band services and Personal game consoles are already on the
Microsoft monopoly radar. I have read the proposal. I will say it is
a good start with a couple of glaring exceptions.
As a Unix systems administrator, I have frequently used an
``Open Source'' application called SAMBA to provide file
system sharing services between Unix and Windows machine. This
software is written in large by volunteers around the world.
Submissions are excepted by a central committee on merit of the
submitted code alone. The code is checked for any obvious malicious
code. But the backgrounds of the individuals submitting the code is
never investigated to see if they have a ``history of software
counterfeiting or piracy or willful violations of intellectual
property rights.''
A volunteer group of coders does not have the resources to
provide such a guaranty. But Microsoft, with a legendary legal
department of at least 600 lawyers does. Microsoft would use this as
a reason to keep this vital documentation from the only real
competition remaining in the Windows File and print services space.
And, since the SAMBA group is have to figure out much of the
undocumented SMB API's (Much of it is documented, but many key
aspects are undocumented), Microsoft could declare that the SAMBA
team as a whole are, ``counterfeiting, ...intellectual
property''
Another group to which these exceptions apply is the
``WINE'' group. These volunteers are trying to port the
Windows win32 API to the Linux and other Unix platforms to enable
application written for Windows to run on Linux and other Unix
computers. Also, there is nothing in the proposal to hinder
Microsoft from extending their monopoly into other areas, for
instance Personal Gaming Consoles (X-Box), Set top video digital
recorders (Ultimate TV) and Broad band access (see http://
news.com.com/2100-;1033-;277203.html?legacy=cnet)
To this end, I would like to add the following commentary to my
own. http://www.kegel.com/remedy/remedy2.html In conclusion, while
the DOJ proposal is what I would deem a good first rough draft,
there are some issues with it as it stands. It keeps key
technologies from the only group of programmers who can currently
and readily benefit from them, then return these benefits back to
the consumer in the shortest amount of time. And it does go far
enough to curtail Microsoft's incursion into other markets. With a
$35 billion ``War Chest'' whatever technology they can not
Co-opt by anti competitive practices, they will simply buy. As last
example I would like to offer the following piece. This has just
happened within the last several weeks. This is after the DOJ had
made the current proposal. http://www.theregister.co.uk/content/54/
23708.html
Very Sincerely,
Kevin Hudson
706 Oakley Dr. Lake
Dallas, TX 75065
Ph. (940) 498-;0284
E-Mail: mailto:[email protected]
PS. To the Bush administration: For whom I did vote. If you are
really serious about eliminating terrorism where ever it occurs,
here is you chance to prove to the world that this isn't just just
words to justify revenge against under armed third world countries.
Exact judgement against a well known corporate terroirst bred right
here on American soil. Bring these terroirst AKA Microsoft to
justice. Real justice not just a petty slap on the rest.
MTC-00028957
From: Kathryn Irene Capps
To: Microsoft ATR
Date: 1/28/02 7:26pm
Subject: Conerns about Microsoft monopoly
I am a software engineer working in Silicon Valley. Over the
last 10 years I have worked for 4 start up companies. I'm writing to
express my concern about Microsoft and the monopoly it holds in the
OS market. In particular, I'm very concerned about the chill
Microsoft's monopoly has placed on PC application development. I
believe that this market has been stagnant for some time, because
investors will not put money into a venture that might compete with
Microsoft. Microsoft has squashed competitors to Word, Excel,
Powerpoint, etc. Microsoft's products have been sometimes better,
sometimes worse, and sometimes equivalent. The point is that they
did not win the market and kill all competition in these categories
because they were better, they won the market because they bundled
the applications with the OS that has a monopoly over the market. I
see this as a clear abuse of that monopoly. Why try to create an
improved spreadsheet if you can't charge a reasonable price? Why
create a new application at all if you know that Microsoft can and
will enter the market and undercut your price, forcing users to
purchase their product when they purchase
[[Page 28483]]
the OS? I've seen folks pitch ideas to venture capitalists and be
cut down because they might compete with Microsoft. Please consider
this issue carefully! Please think through the long term costs of
letting Microsoft be the *only* company developing PC applications.
Katie Capps
Software Engineer
January 28, 2002
MTC-00028958
From: Jean Lauver
To: Microsoft Settlement
Date: 1/28/02 7:22pm
Subject: Microsoft Settlement
Jean Lauver
1061 Stonehenge Drive
Hanahan, SC 29406-;2416
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Jean Lauver
MTC-00028959
From: Perman, Tim
To: ``Microsoft.atr(a)usdoj.gov''
Date: 1/28/02 7:25pm
Subject: Free markets--;pretty simple concept
Resource allocation set by producers and buyers
The letter writer who argued for government action as the only
method of preserving capitalism by regulating Microsoft sounds like
Joel Klein and Judge Thomas Penfield Jackson--;misinformed. The
Austrian school of economics points out that the allocation of
resources in a market economy is determined by the actions of
millions of producers and buyers. For any judge or attorney to
question this is ludicrous.
Understanding the above, you will also be able to understand
that the only monopolies that can possibly exist are government-
granted monopolies. The U.S. Postal Service may be the most anti-
consumer company in America. Rising costs, slower
delivery--;that is a monopoly. In this state you need only visit
a liquor store (with perhaps inconvenient hours and most likely out-
of-the-way locations) to understand how a monopoly can treat
consumers. Klein says that he ``will debate any Libertarian,
anywhere, anytime'' on the subject of monopolies. As a member
of the Libertarian Party, I am proud to say that I share Klein's
disdain for monopolies. As the person who is forced to pay both
Klein and Jackson, I am outraged that they do not understand simple
free-market economics. As a Microsoft shareholder, I hope that the
company defends capitalistic freedom with the determination that the
Founding Fathers of this country did.
Thomas Hobbes wrote, ``There are few so foolish that they
had not rather govern themselves than be governed by others.''
True capitalism can exist only without fools in power. If Klein
wants to debate this, bring the fool on.
Tim Perman
Redmond
MTC-00028960
From: Jason Bishop
To: Microsoft ATR
Date: 1/28/02 12:35pm
Subject: Microsoft Settlement
I would like to relate a story that a friend told me a year or
so ago. I believe that the setting for this story was ``97 +/-
1 year. At the time, he was working for Intel in a fledgling group
for intel's first foray into consumer 3D graphics. At the time,
there was really only one 3D graphics standard, SGI's OpenGL.
This story became especially fascinating, because at this same
time, SGI independently was interested in extending the reach of
OpenGL to the consumer PC. They contributed the software source code
for the rendering engine and all library routines that make up
OpenGL to Microsoft in the hopes that there might be a place for
OpenGL in the desktop operating system.
At this same time, it appears that Microsoft was starting to
notice that 3D graphics was becoming an ``interesting
market''. I'm not going to second-guess Microsoft thinking, but
I will relate the results. OpenGL source code was modified (40
lines) and renamed to Direct3D and then DirectX. Microsoft now had
an API for the 3D gaming market, which of course, was incompatible
with any other API, including OpenGL. This would not normally be a
wise business decision, but this is Microsoft. Since they had a
monopoly on the desktop, having a 3D gaming API which was
incompatible with any other would turn out to be beneficial. Read on
for gory details...
By this time, Intel's 3D chipset for the consumer market was
almost ready. All that separated them from a shippable product was
Microsoft certification. So Intel takes the new hardware to
microsoft, where they learned that it failed certification. Upon
inquiry, it was learned that Microsoft had changed the rules for
hardware certification, namely that DirectX must be supported and
not OpenGL. What makes this especially diabolical is one of the
changes made to turn OpenGL into DirectX was a change to the
algorithm which determines if a pixel is turned on. This routine is
implemented in hardware. The result is that it is impossible to pass
the hardware certification with hardware designed for OpenGL. Intel
would have to redo their hardware, including producing the chips all
over again. Intel would also have to support the new microsoft
DirectX API if they wanted to be granted hardware compatability
status. So why does Intel care if they receive hardware
compatibility status? Easy, because microsoft requires all PC
manufactures to only include microsoft certified hardware in PC's
they sell. In this way, Microsoft can control hardware companies. Of
course, the reverse is true.
Normal rules don't seem to apply to microsoft, and the
settlement should reflect this in my opinion.
Jason Bishop
Union City, CA
MTC-00028961
From: Sawley
To: Microsoft ATR
Date: 1/28/02 7:30pm
Subject: Microsoft Settlement
The AOL lawsuit against Microsoft is a pathetic attempt to try
to gain public sympathy in court against a competitor that they
can't compete against in the public market
Lewis W. Sawley
(my previous email may have been addressed improperly)
MTC-00028962
From: Ray Whitmer
To: Microsoft ATR
Date: 1/28/02 7:31pm
Subject: Microsoft Settlement.
I am adding my full address and other info, which I forgot when
I first sent this message:
Ray Whitmer
[email protected]
575 E. Center Street
Orem, Utah 840975603
801-;225-;3488
Forwarded message
Date: Mon, 28 Jan 2002 16:49:39 -0700 (MST)
From: Ray Whitmer
To: [email protected]
Subject: Microsoft Settlement. To whom it may concern, regarding the
proposed settlement of the microsoft case.
I am not a lawyer, and have no sound legal advise to offer, and
the time has past for that. I have been an employee of a number of
companies who have found it impossible to compete with Microsoft
because competing with them had little to do with quality of product
and everything to do with control. You do not have to look far at
all for many overt acts that I think any reasonable person would
call criminal. This is because of the high- pressure eminating from
the top of the company, to win at any costs. In my 20 years
developing products across many operating
[[Page 28484]]
systems and corporate structures, I have worked for WordPerfect
corporation, Novell, and Corel, among others, and it has become
increasingly obvious that quality has nothing to do with winning in
the marketplace. It is all about who controls the information
patterns of the masses, whether it be Movies, Software, News, or
Advertising. This is not a new phenomenon. Once the Catholic Church
controlled these things quite effectively with systems that greatly
resembled the ever-expanding copyrights and patents on things today.
Today, Martin Luther, sneaking out of the Vatican with his biblical
transcripts would be hunted down as the latest Napster-ite, who
thinks that works which interweave themselves so deeply into the
roots of a population should not be controlled by a power-hungry
entity such as a Church or a Mega-corporation. This does not mean
that those who produce them do not deserve profit, but see what the
billions paid for Windows every year buys us: In significant cases,
less than what the remaining competition now gives away for free,
because Microsoft has such a lock on the market. The profits are
squandered every year on power. There are dozens of competing
products that could have easily taken that position had they
controlled the power they had in their times as unscrupulously as
Microsoft does. Corporate survival and hunger for power and profits
are the reason we have antitrust laws. In this case, the public
shame is greater, because it is the Copyright laws--;an
artificially- granted government monopoly--;that establishes the
Microsoft Monopoly. If it were possible to still compete in this
market against that Corporation, you would clearly be seeing much
lower prices--;the Microsoft take increases, but somehow the
economies of scale in software production never lowers the price of
the software, and there is never even consideration that you paid
for dozens of versions you can no longer use because Microsoft has
made them incompatible.
Microsoft is not an indispensible part of the market. If they
vanished, within 5 years, there would be no trace left, and there
would be competition for a little while until another corporation
showed that it was the most vicious of those remaining and
consolidated power.
I and thousands of people like me have started writing new
software that is not susceptible to this overbearing corporate
eternal ownership--;which I have to believe is extremely
different from what the framers of the Constitution thought they
were doing in granting limited copyright and patents. We have the
technology to design around the original intent of these laws, and
it is time that you look at seriously reigning in the moster that
has evolved. Law of the mega-corporation, by the mega-corporation,
and for the mega-corporation is not in anyone's best interest long-
term, even if the mega-corporate advertising of today has the same
persuasive power as the mega-Churches of old over the masses,
tribunals, and courts of law. The case against Microsoft was poorly
made, and hardly justified, not that there wasn't a huge case to be
made. But your remedies are worse than ineffective. They will do
more harm than good. You have overturned the breakup, which might
have had some effect, but likewise didn't get at the root of the
problems, which I have tried to describe here. It is not Microsoft
that is wrong but which succeeded by such
viciousness would be just as bad, and I would be just as sorry to
see Sun, Oracle, or even my own company AOL Time Warner be in such
an abusive position.
I think that when a company abuses the public trust of its
granted monopolies as badly as Microsoft has, the appropriate and
natural action is to revoke their monopoly, which in this case is
their copyright. With that arrow in your quiver, it would not be
difficult to convince companies in the future to act more in the
public interest. Short of that, please abandon your current pursuits
and admit honestly that the corporation has won and the country has
lost. It is really rubbing salt in our wounds to offer something
that hurts more than it helps and claim you have acted in our
behalf. Human rights are more important than copyrights or corporate
rights. Many technology companies go under every year. It would be
better, though if there was a better connection between profits and
service. If you do not, the next revolution is on the horizon. You
cannot lock up everyone for violations of intellectual
``property'' any more than the Church could, however much
the corporations want to control everything. And corporations do not
need an absolute eternal copyright as much as they might claim. And
America will become the ``old world'' while other
countries such as Russia have their patriots thrown in prison in
America for crimes of conscience by the dozens of new FBI/DOJ
departments created for this new opression --; certainly not for
any overt act depriving a corporation of it's profit in the recent
Sklyarov case. Do you really want to be the ``Department of
Justice'' which presided over such a debacle? Where is justice
for we, the people?
Ray Whitmer
[email protected]
MTC-00028963
From: Ray Leach
To: Microsoft Settlement
Date: 1/28/02 7:25pm
Subject: Microsoft Settlement
Ray Leach
1913 Bay Oaks Court
Fort Worth, TX 76112-;4503
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ray D. Leach, Colonel USAF (Ret)
MTC-00028964
From: ANDREW SHINER
To: Microsoft ATR
Date: 1/28/02 7:32pm
Subject: MICROSOFT
PLEASE BE ADVISED THAT I AM A MICROSOFT USER AND HAVE BEEN SINCE
1982. I THINK MICROSOFT HAS REDUCED THE COST OF INFORMATION OVER
THAT PERIOD. PLEASE LET MICROSOFT DO WHAT IS DOES WELL . LETS KEEP
GOVERNMENT OUT OF BUSINESS. THE LAST TIME THE GOVERNMENT HELPED ME
WAS THE AT&T SPLIT UP. LETS LEARN FROM THE PAST. THANK YOU
ANDREW SHINER P. O. BOX 187 FREELAND, PA 18224
MTC-00028965
From: Donna Fox
To: Microsoft Settlement
Date: 1/28/02 7:27pm
Subject: Microsoft Settlement
Donna Fox
8123 Cesperdes Ave.
Jacksonville, FL 32217-;4068
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more
[[Page 28485]]
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Donna J. Fox
MTC-00028966
From: Bettye Bailey
To: Microsoft ATR
Date: 1/28/02 7:33pm
Subject: microsoft settlement
It is time to leave Microsoft alone. There are many things more
important than bedeviling a company so important to our economy.
Please allow them to get back to work. I have a M.A. in Economics
from Stanford and do know I speak from experience.
Get to the things that really need doing.
Bettye Bailey
MTC-00028967
From: Stanley` Curtis
To: Microsoft Settlement
Date: 1/28/02 7:26pm
Subject: Microsoft Settlement
Stanley` Curtis
207 Falcon Crest
Warner Robins, Ga 31088
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Stanley T. Curtis
MTC-00028968
From: Marylynne Kirkland
To: Microsoft Settlement
Date: 1/28/02 7:27pm
Subject: Microsoft Settlement
Marylynne Kirkland
P.O. Box 755
Panguitch, UT 84759-;0755
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Marylynne Wagner Kirkland
MTC-00028969
From: ccoulter
To: Microsoft ATR
Date: 1/28/02 7:32pm
Subject: Microsoft Settlement
Dear Judge,
If we want to preserve the right to have a free choice on
products, goods, and a freedom to makre our own choices, the the
Proposed Final Judgement is not enough. I hope that you will see
that Microsoft has been controlling us and has controlled the
technology world. Please consider a harsher punishment to stop thier
control over a free market.
Sincerely,
Coulter Campbell
Coulter Campbell
910 Knob Hill Ave
Redondo Beach, CA. 90277
MTC-00028970
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:32pm
Subject: Microsoft Settlement
2859 Hearthstone Way
Rockford, Illinois 61114
January 12, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I think the lawsuits against Microsoft have gone on way too
long. I am glad to see that Microsoft is not being broken up, but I
thoroughly believe that this suit has been a personal vendetta from
the first place and has been extremely unfair to Bill Gates.
The terms of the settlement do not let Microsoft off easy.
Microsoft has to disclose internal interfaces, design future version
of Windows so that competitors can promote their own products, and
improve their relations with computer makers and software developers
regardless of their competitors'' practices, efficiencies, or
strategies. These restrictions go against free market economy
principles to choose your partners, vendors, and consumers.
At any rate, I think it is in the best interest of the American
public to end this lawsuit and finalize the settlement as soon as
possible. Our tech sector needs to the brilliant innovation of
Microsoft and their workers to jumpstart the industry and help out
our ailing economy.
Sincerely,
Velora Upstone
MTC-00028971
From: John Wilson
To: Microsoft ATR
Date: 1/28/02 7:33pm
Subject: Microsoft Settlement
I do not agree with the settlement terms as they exist at this
point. I appreciate with Microsoft's contention that they should be
free to innovate, but they should be forced to compete with the rest
of the industry on a level playing field through the quality of
their products, rather than by flexing their monopolistic muscles.
Windows XP is a clear indication that they have no intentions of
playing by the rules, even after all they have been through. Windows
XP is just as unstable as Win2K (both are far more stable than the
Win95/98 series), and they have once again bundled their
``cornerstone'' software in such a way that it becomes
impossible to separate. You cannot shut down Messenger when MS
Office is running, for example. The error message states that
``There are other applications currently using features
provided by Windows Messenger.These applications may include
Outlook, Outlook Express, MSN Explorer and Internet Explorer''.
This is precisely the same thing they did when making IE part of the
OS. Clearly they haven't learned their lesson, which means the
current settlement terms do not go nearly far enough.
Please make them play fair. That is your job. You are not
helping the industry by making it easy on Microsoft, you are hurting
it.
MTC-00028972
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 7:35pm
Subject: Microsoft Settlement
An important understanding of *modern* economic models would
help in crafting a suitable remedy.
The best lay-persons explanation of what kind of competitive
behavior should be encouraged, can be seen in the current movie
``A Beautiful Mind''.
In a bar, John Nash explains to his fellow students the impact
of Adam Smith style economics, versus his new model, where it
concerns competing for limited resources.
[[Page 28486]]
Watch the movie, and apply the concept to any proposed remedy. If
there is not more than one happy party, the result is bad for
everyone. If both sides (and all parties with a direct interest,
including AOL Time Warner, Sun, Oracle, etc, as well as Microsoft)
do not praise the result, it is practically by definition, bad for
consumers, bad for business, and bad for America and the entire
western world.
The current proposed settlement, by this reasoning, is *very*
*very* bad.
Sincerely,
Brian Dickson
Arlington, VA
MTC-00028973
From: Debra J. McDonald
To: Microsoft ATR
Date: 1/28/02 7:34pm
Subject: Microsoft Settlement
Although I firmly believe that the microsoft anti-trust suit was
a misuse of our hard earned tax dollars, I believe the proposed
settlement (under the circumstances) is reasonable and we should
move in a more positive direction. Finish the deal and gag all other
parties who have personal separate agends.
MTC-00028974
From: joe chensky
To: Microsoft ATR
Date: 1/28/02 7:35pm
Subject: microsoft settlement
Sirs; bring this to closure. the states are not interested in
finality, they are concerned about power and notoriety. it is time
to go on with business and free enterprise. Sincerly Joseph L
Chensky. a concerned citizen
MTC-00028976
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:33pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
maxine pollard
132 No. Roby Dr.
Anderson, IN 46012
MTC-00028977
From: Melissa
To: Microsoft ATR
Date: 1/28/02 7:36pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to give my thoughts on the settlement between the
US Department of Justice and Microsoft Corporation. I want you to
know that I support the settlement that was reached back in
November. It is in the best interests of the government to accept
the settlement, and move onto more pressing matters. I believe we
have wasted far too much taxpayer money and government time as it
is, to pursue an issue that never was in the consumers best
interest.
The terms of this settlement are reasonable, and were reached
after a great deal of effort with the help of a court appointed
mediator. Microsoft is not getting off easy like it's opponents
might lead you to believe. The company has agreed to make a number
of specific changes to its business practices that will prevent
future antitrust violations. For example, Microsoft has agreed to
document and disclose various interfaces that are internal to
Windows'' operating system products for use by its competitors.
Also, a technical committee comprised of three software
engineering experts will monitor Microsoft's compliance with the
settlement, and assist with dispute resolution.
Sincerely,
Melissa Melvin
11001 Dogleg Trace
Tega Cay, SC 29708
cc: Senator Strom Thurmond
CC:[email protected]@inetgw
MTC-00028978
From: Tim Schulteis
To: Microsoft ATR
Date: 1/28/02 7:37pm
Subject: Microsoft Settlement
Judge Kollar-Kotally,
The U.S. is giving away the store in the proposed U.S. vs.
Microsoft final judgment, and the settlement should be rejected. The
proposed settlement has serious flaws. The courts have convicted
Microsoft of many anti-trust violations resulting in many billions
of dollars of profits, yet the proposed solution would allow the
company to keep almost all of that money and would provide no
protection against future abuse of Microsoft's power.
Forcing Microsoft to give away software (and even hardware) to
schools is barely a punishment, either, as it allows Microsoft to
further expand its dominance into perhaps the one market it doesn't
yet fully control-the education market. And setting up a structure
whereby Microsoft would essentially police itself is entirely the
wrong approach to protecting us.
I ask you to reject the proposed final judgment on these
grounds.
Sincerely,
Tim Schulteis
3229 Azalea Circle
Lynn Haven, FL 32444
850-;747-;0336
MTC-00028979
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:39pm
Subject: Microsoft Settlement
406 Winston Avenue
Baltimore, MD 21212
January 25, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
It is sad that Microsoft has had to spend three years in court
in the antitrust case. This is a great American company that
contributed so much to our recent economic growth, and could help us
get out of this current recession.
That is why I was very happy to learn that a settlement was
reached in this case. Microsoft has paid its dues and agreed to a
good settlement. The settlement will give non-Microsoft firms access
to Microsoft code. With this information, non-Microsoft firms will
be able to build better software.
Unfortunately, some with animosity toward Microsoft opposes this
settlement, and they should be ignored. It is time Microsoft is
released from federal court.
Sincerely,
Merle Sturm
CC:[email protected]@inetgw
MTC-00028980
From: Walter & Janice Schneider
To: Microsoft Settlement
Date: 1/28/02 7:34pm
Subject: Microsoft Settlement
Walter & Janice Schneider
1603 Riverdale Ave
Sheboygan, WI 53081
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
[[Page 28487]]
Thank you for this opportunity to share my views.
Sincerely,
Janice and Walter Schneider
MTC-00028981
From: David Mott
To: Microsoft ATR
Date: 1/28/02 7:40pm
Subject: Microsoft Settlement
The proposed DOJ settlement with Microsoft IS A BAD IDEA! In
order to have a chance of restoring competition in the Operating
System market for PCs, the restrictions must be much stronger.
Restrictions proposed by the 9 ``rogue'' states are
more reasonable.
MTC-00028982
From: Ardy Forouhar
To: Microsoft ATR
Date: 1/28/02 7:42pm
Subject: Microsoft Settlement
Dear Judge Kollar-Kotally,
I am a concerned citizen and software industry employee. I
wanted to take this opportunity to let you know that as a silicon
valley professional, I don't think the judgement goes far enough in
addressing Microsoft's past wrong doings.
I realize that I'm a small voice among large companies and
powerful representatives. I am a staffing professional hired full-
time by companies to help assist in staffing their organizations on
a short and long term basis. As someone working closely with start-
ups, I've come to learn that bullying tactics from the industry
leader in software technology is not healthy for the diversity of
skill set among industry professionals on a domestic and global
basis.
Also, the proposed settlement would allow the company to retain
almost all of the profits earned from dominant tactics.
There are no guarantees that Microsoft won't continue to break
anti-trust laws by bullying competitors as it always has.
Microsoft is left to police itself under the proposed final
judgment (conflict of interest by definition).
The proposed settlement would amount to a government endorsement
of Microsoft's monopoly. They could carry on as before.
Please do your very best to ensure that future jobs of
entrepeneurs within the area are not further affected through
industry monopolization and that the high tech industry can be
revived and not crushed when the economy makes an eventual turn
around.
Regards,
Ardy Forouhar
143 Monte Villa Ct.
Campbell, Ca 95008
Tel: 408-;626-;9517
MTC-00028983
From: Peter Liesenfelt
To: Microsoft ATR
Date: 1/28/02 7:42pm
Subject: Microsoft Settlment
The proposed settlement between the DOJ and Microsoft is grossly
insufficient in either penalizing Microsoft for the antitrust issues
they have been found guilty of or to provide sufficient protection
against further actions by Microsoft. As I understand it (not being
an expert in anti-trust litigation) precedents have been established
that have identified the standards for monopoly remedies to be of
the nature of denying the defendant gains from their illegal acts,
protecting against abuses in the future or eliminate the monopoly.
The proposed settlement by the DOJ does none of these three things.
As a citizen of the United States I have seen the following
occur to my ``practical freedom of choice': My options for a
personal computer operating systems has been reduced to one,
Microsoft Windows. My options for application software (word
processing and spreadsheets) have been reduced to Microsoft Word and
Microsoft Excel. My option for Internet browsing is practically
eliminated to one, Microsoft Explorer. I DO NOT want to have my
choices of Internet hosts to be reduced to one, an Internet
connection to one, an Internet media provider to one or an Internet
news service to one. This is the path that Microsoft is going
toward, to monopolize computing. See Microsoft for what it is, based
on their previous actions as to where they are going.
Recently, when Microsoft was planning the release of the Windows
XP operating system decided to leave out a function to Explorer that
was called ``smart tags''. This function would have
allowed Microsoft to essentially ``override'' the content
of internet pages and supplement the content with content that
Microsoft desired, essentially censoring internet content. Do we
want a company that has demonstrated that it abuses its monopoly
position in personal computer operating systems to have this amount
of power? Do we trust that they will not abuse this type of power? I
think not, I hope not, I hope the United States aggressive sees to
it that it will not occur. Recently I had a problem with my Windows
2000 Professional system and had to use a backup (much older) pc to
try to access Microsoft's Internet site to help determine the
problem. But I found out that since it was a machine that had
Netscape as a browser that Microsoft prevented me from viewing the
information. This is only one example of where Microsoft dictates
terms to its customers something that you would expect it would want
to serve. Any justifications to such actions is only to further
their goals to maintain or increase their monopoly, not to serve
their users, not to serve the public's best interest. As an
extremely knowledgeable computer user I find Microsoft's tactics to
not be in the user's interest, only in their corporate interest. I
am not against corporate America, in fact I am a strong proponent of
it, but monopolies that abuse their power must be held accountable.
I could, if need be, help architect a remedy to this case. Do I
think Microsoft has to be broken up? No. I believe that Microsoft
will never agree to a remedy that addresses the precedents that have
been established for antitrust remedies. I strongly urge Judge
Kollar-Kotelly to not accept the proposed settlement. I fear that
the DOJ under the Bush administration will not seek remedies that
are sufficient in depth or breath to prevent future abuses by
Microsoft and that Judge Kollar-Kotelly will need to independently
determine a course of remedies that will.
Peter Liesenfelt
119 Gladys Avenue
Mountain View, CA 94043
MTC-00028984
From: Michael Jaehrling
To: Microsoft ATR
Date: 1/28/02 7:42pm
Subject: Microsoft Settlement
To whom it may concern:
Yesterday I sent you a brief message stating my opinion
regarding the Microsoft case. Today I would like to give you more
reasons to leave Microsoft in peace: I use Microsoft products, and
appreciate them enormously. I resent the government's stance on the
basis that it presumes I am not fit to make decisions about which
software I buy, and why. If Microsoft is punished, that means they
have been found a threat--;how can a succssful company's
products be a threat to anyone other than it's competitors. And if
the latter is the problem, then the USA cannot claim to be a free
market or a free country.
Please bear in mind that consumers did not complain about
microsoft, nor any community groups. Its competitors (unsuccssful
ones), rather than competing fairly, resorted to seeking government
favor to help them. You cannot allow failed companies to set terms
that will throttle a competitor just because the former was unable
to match up.
Governments should not protect some business at the expense of
others. As someone once said--;``when politicians determine
what gets bought and sold, the first thing to get bought and sold is
politicians''. Success, self-made and honest entrepreneurship
such as that displayed by Bill Gates, should not be punished, but
embraced and ecouraged. Imagine how successful America would be if
we had more men like him.... If all of the above is not enough, then
look to your constitution. A company, like an individual, has the
right to its property. This right is inviolable. Please, for all our
sakes, uphold Microsoft's right to compete freely and as it sees
fit--;do not penalize the good for being good.
Sincerely,
Michael Jaehrling
General Manager
Hyatt Regency Cheju
3039-;1 Saekdal-dong
Seogwipo-si
Cheju-do
Korea
Tel: 82 64 733-;1234
Fax: 82 64 738-;0900
www.hyatt.com
MTC-00028985
From: James R Bain
To: Microsoft ATR
Date: 1/28/02 7:42pm
Subject: Microsoft Settlement
I think it is time to end this costly and damaging litigation
against Microsoft. Dragging out this legal battle, in which only the
lawyers will benefit serves no useful purpose. The proposed
settlement is equitable and should end this legal battle as soon as
possible.
James R Bain
MTC-00028986
From: Bruce Miller
[[Page 28488]]
To: microsoft.atr(a)usdoj.gov
Date: 1/28/02 7:43pm
Subject: JUDGE KOLLAR-KOTELLY: AVOID THE CURRENT MICROSOFT
SETTLEMENT PROPOSAL
Bruce Miller
Box 31134
Seattle, WA 98103
28 January 2002
U.S. District Judge Colleen Kollar- Kotelly
Renata Hesse, trial attorney,
Antitrust Division,
U.S. Department of Justice
Dear Honorable Judge Kollar-Kotelly:
I have comments about the proposed settlement terms with
Microsoft. I think the proposed settlement is very flawed and must
be re-written to ensure the public and other companies are not
harmed further by the Microsoft's monopoly. The proposed settlement
only serves the interests of Microsoft.
Microsoft's unfair business practices must be addressed to
protect all Americans and all computer users.
1. Microsoft must be prohibited from giving unfair preference
and position for its own products when bundled with its operating
system products, especially in deals with PC companies.
2. Microsoft must be prohibited from being able to bundle
whatever they want to include as part of their operating system,
because current separately sold software products could be bundled
with Windows in the future and thus, undercut and eliminate many
other technology companies.
3. Because Microsoft is a monopoly, Microsoft must publicly
disclose their Windows source code in order to level the playfield
for all American consumers and businesses.
Please adopt these 3 proposed terms into the currently proposed
settlement terms with Microsoft. My proposed terms are fair,
unburdensome to Microsoft and the U.S. Federal and State governments
and American public, and will be very effective to correct and
reverse the wrongs Microsoft has committed.
Sincerely,
Bruce Miller
MTC-00028987
From: sam perelli
To: Microsoft Settlement
Date: 1/28/02 7:35pm
Subject: Microsoft Settlement
sam perelli
po 103
cedar grove, nj 07009
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
sam perelli
MTC-00028988
From: Cynthia Haven
To: Microsoft ATR
Date: 1/28/02 7:43pm
Subject: Microsoft settlement
28 January 2002
Subject: Microsoft Settlement
To whom it may concern,
I cannot let the opportunity to pass for comment on the
settlement with the Microsoft company pass without taking my
opportunity to make some public comment. There are many out there
who think this suit against Microsoft (aka Microshaft) is simply the
vendetta of some bitter competitors. But the immoral, illegal, and
greedy acts of Microsoft over the years have come at the cost to
consumers of choice, innovation, and affordable software. They
decided long ago that if they can't beat their competitors with
better quality they would cheat them or beat them into submission.
There should not be an expiration date to this settlement,
unless it is more than 30 years. Microsoft management has proven
that they don't care about the rules and would be anxiously waiting
in the wings for the next attack. They need to be punished for the
wrong they have done to the American consumer. If they claim they
have not stifled competition, why does Microsoft Office cost $500
dollars. That is NOT a competitive price. I can buy the same
functions in ``Apple Works'' for $80. And why is it still
so hard to get rid of Internet Explorer as your default browser? At
work, I have to get technical assistance to change it. And why, as I
just found out, that the default search engine for IE is MSN (as in
Microsoft Network). Try seeing how intuitive it is is to pick
another search engine, like Google, which is much better.
Fortunately, at home, I have chosen to use non-Microsoft products,
even if it costs me money. This is, however, something Microsoft
presumes most people won't do, and they are usually right.
Microsoft is not a group of school boys to be slapped on the
hand with a promise not to misbehave again. They are corrupt,
greedy, selfish jerks with nobody's interest but their own here. The
public is not passive about this situation. We want fair play and
true competition based on market rules and true innovation. Not
marketing gimmicks and coercion. I applaud the Justice Department in
their efforts to resolve this situation, but Microsoft should have
no mechanisms to revive their evil ways. The settlement should be
strict and long lasting, not 5 years, or we will be in this same
situation again.
Sincerely,
Cynthia P. Haven
Houston, TX
[email protected]
MTC-00028989
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:43pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
Dear Mr. Ashcroft:
I am writing to express my opinion about the recent settlement
between Microsoft and the US Department of Justice. I think the
lawsuit has dragged on long enough and should have by this time
covered all the bases necessary. Our government needs to be facing
other more pertinent issues than trying to break up a company that
creates jobs and wealth.
The terms of the settlement are more than fair and should
appease all competition since they stipulate that competitors will
be given interfaces and protocols that are internal to Windows
operating system products. They also will be given broad new rights
to confiqure Windows so that non-Microsoft products can be promoted
more easily.
I urge your office to do what is best for the American public,
IT sector, and national economy and implement the settlement. I
would also request that no further state or federal action is taken
unless there is a major violation on Microsoft's behalf.
Thank you for your time.
Sincerely,
Bob Strong
MTC-00028990
From: Kim Coker
To: Microsoft Settlement
Date: 1/28/02 7:35pm
Subject: Microsoft Settlement
Kim Coker
2251 Leon Road
Jacksonville, FL 32246
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
I have to agree with and concur with the following: The
Microsoft trial squandered taxpayers' dollars, was a nuisance to
consumers, and a serious deterrent to investors in the high-tech
industry. It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into
[[Page 28489]]
the business of innovating and creating better products for
consumers, and not wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Kim Coker
MTC-00028991
From: Terry Frost
To: Microsoft ATR
Date: 1/28/02 7:48pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft:
I am writing you to express my concern over the extended delay
in the settlement of the Microsoft antitrust case. I see no
justifiable reason to prolong this case. The major parties have
reached an agreement on both the nature of the matters at issue and
the future remedial steps Microsoft will take to remedy past
perceptions of wrongs and alter its present monopolistic-like
advantages. I see no reason to prolong this litigation. The computer
field has new innovations occurring frequently and rapidly.
Microsoft has agreed not only to forego any future anti-
competitive practices but also to actively work to reduce its
dominance in its field. For example, Microsoft will now configure
its Windows systems in a manner that will allow its competitors to
readily use and even exploit its platforms. Microsoft will alter its
licensing practices with computer manufacturers so as to encourage
the use of non-Microsoft software. Microsoft will submit now to an
ongoing review of its practices by a new federal oversight
committee. The company has agreed to embrace competition for the
benefit of the entire industry.
Please work toward an acceptance of this plan and a cessation of
this litigation.
Sincerely,
Terrance J Frost
MTC-00028992
From: Susan Gilvary
To: Microsoft ATR
Date: 1/28/02 7:43pm
Subject: Microsoft Settlement
The proposed settlement with Microsoft does the citizens of the
United States a grave disservice by failing to protect our rights as
consumers. Microsoft has accumulated and abused monopoly power,
stifling competition and reducing our choices. The Justice
Department should withdraw this proposed settlement. The citizens
and businesses of this country deserve an open market, not a market
dominated by an unresponsive, self protecting monopoly.
Susan Gilvary
MTC-00028993
From: L. E. JOHNSON, JR.
To: Microsoft Settlement
Date: 1/28/02 7:38pm
Subject: Microsoft Settlement
L. E. JOHNSON, JR.
401 Green T Lake Blvd W
Hernando, MS 38632
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
L. E. JOHNSON, JR.
MTC-00028994
From: Joel Hodgell
To: Microsoft ATR
Date: 1/28/02 7:46pm
Subject: COMMENTS ABOUT THE CURRENT MICROSOFT SETTLEMENT PROPOSAL;
MY PROPOSED CHANGES TO IT
Joel Hodgell
12712 Lake City Way NE 3
Seattle, WA 98125
28 January 2002
U.S. District Judge Colleen Kollar- Kotelly
Renata Hesse, trial attorney,
Antitrust Division,
U.S. Department of Justice
Dear Honorable Judge Kollar-Kotelly:
I am writing to you to comment on the proposed settlement terms
with Microsoft.
As is, I think the proposed settlement is very fatally flawed
and must be written to ensure the public and other companies are not
further harmed by the monopolistic practices of Microsoft. The
current proposed settlement terms only serve the interests of
Microsoft and related special interest groups that gave substantial
campaign contributions to the Bush campaign and the GOP party.
Even though I live in Seattle, I believe the unfair monopolistic
business practices of Microsoft must be punished and adequately
addressed in order to protect all Americans and the U.S. and world
economy.
1. Microsoft must be prohibited from giving unfair preference
and position for its own products when bundled with its operating
system products, especially in deals with PC companies.
2. Microsoft must be prohibited from being able to bundle
whatever they want to include as part of their operating system,
because current separately sold software products could be bundled
with Windows in the future and thus, undercut and eliminate many
other technology companies.
3. Since Microsoft is a monopoly, Microsoft must publicly
disclose their Windows source code in order to level the playing
field for all American consumers and businesses.
Please adopt these 3 proposed terms into the currently proposed
settlement terms with Microsoft. My proposed terms are fair, un-
burdensome to Microsoft and the U.S. Federal and State governments
and American public, and will be very effective to correct and
reverse the wrongs Microsoft has committed.
Sincerely,
Joel Hodgell
MTC-00028995
From: Paul Speranza
To: Microsoft ATR
Date: 1/28/02 7:45pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing in response to the public comment period for the
Microsoft antitrust trial. I would like to urge you to please end
this lawsuit as soon as possible
The settlement will definitely promote competition in the
technology industry, if not hindering Microsoft's own competitive
abilities. Microsoft will divulge their interfaces and protocols,
and will share it with competitors., and consumers will be given
more choices when using the Windows operating system.
This witch-hunt needs to be ended, and our computer industry
needs to be restored. Please uphold this settlement.
Attached please find an email that I originally sent to my state
attorney general, Mr. Richard Blumenthal, who never even saw to it
that I at least received an acknowledgment.
Sincerely,
Paul Speranza
Vice President
All Systems Go, Inc.
CC:[email protected]@
inetgw
Mr. Blumenthal,
I would like to comment on some of the proposed remedies that
you and the other eight states have suggested in the Microsoft anti-
trust case. Please bear in mind that I am referring to an
Infoworld.com article for the points that I am addressing.
1) Allowing other companies to port Office to other platforms.
This is no small feat. That is probably why Microsoft has a separate
[[Page 28490]]
Macintosh team that develops Office for the Mac. They have to do
this because code running on Windows will not run on the Macintosh
or any other platform. Did you know that the Mac version is always
months behind the newest Windows version? Since the Mac is a
completely different operating system that means that the developers
get no help from the core Windows developers (The Chinese Wall?).
Here Microsoft has succeeded only because they have the best product
of its type on the Mac. There is no way to stop anyone from cloning
Office. Good luck to anyone that tries. The product is so massive
you would need a small army of developers to do it. There is a clone
of Outlook for the Linux operating system from Ximian (http://
www.ximian.com). Microsoft has not stopped them from doing so. By
the way, this company is cloning Microsoft's new .Net Framework for
Linux, and as far as I know Microsoft is somehow lending support.
Why would you want to allow someone to clone software from other
companies? Where is there innovation in that? Sun Microsystems
offers Star Office for free, developed by open source developers. It
is compatible with the Office file formats which Microsoft
publishes. Why aren?t companies dumping Office for Star Office in
droves when Microsoft charges several hundred dollars? It's because
over the years programs like Word have evolved to be much more than
a word processor. The programs in Office work together to build
entire applications based on all of the pieces. You can open up a
Word document and in it could be an Excel spreadsheet that you can
update without ever knowing you were using Excel. This has evolved
over the years and is by no means trivial to do.
As far as the logic that it is too expensive for companies to
change to a free product because of training costs, I?m not buying
that. Is that supposed to be Microsoft's fault? In a recent
interview, Scott McNealy from Sun Microsystems said that large
corporations aren?t using Star Office mainly because it is free and
the customers didn?t think Sun would be committed to supporting a
free product. So now Sun is contemplating charging for it.
2) Allow for a stripped down version of Windows at a cheaper
price. What for? Microsoft spends a lot of R&D time and money
developing the extras that they give you for free. So if you got a
version without the freebies does this mean Microsoft has to pay for
not putting in programs that they are giving away? Here is the
problem with including only products from other companies?
Microsoft's updates to IE, Media Player, etc. are always free for
the downloading. RealPlayer, for example, offers a functional yet
hobbled version of their software and then gets you to pay for
upgrades and newer versions. So does Opera with their web browser.
So where is the consumer winning here? With MS I get the feature
complete versions of a browser and Media Player for free, with the
competitors what initially is free may not be over time if I want
versions with more features.
I think what Microsoft did with the PC manufacturers was a great
idea: Include all of their products but put whatever competitor's
products you want in also.
3) Make IE an open source product. Why? That browser is still
the best browser out there. Mozilla is open source and is free. Why
aren't people downloading that in droves?
Here is a little software history for you.
Wordstar was the leading word processor. They got fat and happy
with their product and did not update it. Along comes Word Perfect
with many new features. Bye, bye Wordstar.
Microsoft releases Windows 3.1. Word Perfect does not create a
windows version. Microsoft releases Word for Windows and it is a
hit. Word Perfect releases a Windows version 2 years later full of
bugs. Bye, bye Word Perfect. Corel owns Word Perfect now. They tried
to create a Java version of it so it would run on any computer. You
know what they found? Although Java is great for backroom systems,
the front end interface that a user sees is way to slow to be
usable. Sun Microsystems? Star Office, which works on any computer,
still needs to have direct ties to the platform it is running on to
be usable. Shame on Microsoft for writing great software that runs
on Windows.
Microsoft releases Windows 3.1. Lotus, after being begged by
Microsoft to do a Windows version to prove the value of Windows,
does not. Microsoft releases Excel for Windows, which was already on
the Macintosh for years, and it is a hit. Lotus releases a Windows
version 2 years later full of bugs. Bye, bye Lotus 123. Ashton Tare
had a program called dbase III Plus. They got fat and happy with
their product and did not update it. Along comes Foxpro from Fox
software and Clipper from Nantucket software. Bye, bye dbase.
Microsoft did buy Fox many years later. Computer Associates bought
Clipper. Borland bought dbase, released a lousy version 4, tried to
release version 5.
See the pattern yet? Stay with me now.
Netscape releases Navigator, a web browser and sells millions at
50 bucks a pop, gets fat and happy with their product and did not
update it. Microsoft releases a better browser called IE 4.
Netscape, still fat and happy with their product, does not update
it. AOL builds their client software around IE. Microsoft releases
IE 5 with excellent functionality and great hooks for developers
trying to build browser applications. Netscape, still fat and happy
with their product, does not update it but decides to give it away.
Netscape gets bought by AOL. Microsoft releases IE 5.5 with even
better features and developer hooks. AOL releases another version of
their client using IE, not their own. Netscape/AOL releases version
6. Full of bugs and slow as hell. A year later Netscape/AOL releases
6.1, slightly better. AOL client 7.0 released, still using IE I
think. Netscape/AOL releases 6.2, finally acceptable.
Oh, and before I forget. Because Netscape 4.x was such a lousy
browser, companies waste millions in development costs trying to
keep websites and web applications compatible with it and the newer
browsers. As for the innovative features and improvements that
Microsoft put into their browser, most have been adapted by the W3C
standards body. All of the newest browsers support those features.
As a matter of fact, the new Netscape boasts that they are 100%
standards compliant, but they have implemented a few non standard
Microsoft features that they feel are very useful.
Why should they release an open source version of it? Did you
know that under Windows developers can build IE right into their
applications? That means a developer can use Microsoft's product to
enhance their own. Not one of the other browsers does that! You see,
where Netscape targeted the consumer, Microsoft targeted the
consumer as well as the developer that has to create the
applications the consumer uses.
So what has Microsoft done wrong here? Oh, yeah, they gave us a
free browser with Windows.
So in closing I would like to say that I think the nine states
are really going radical here, and I now think it is a witch hunt. I
almost want to compare it to what happened with the tobacco
companies. Microsoft is sitting there with 30 billion dollars in the
bank and people want some of it. To me the feds have gotten about
all that is worth getting. I could go on and on but I won?t. I hope
that you will at least consider my comments. In case you didn?t
notice, I am a software developer. My experience is mostly with
Microsoft products, but I have done development using Sun and
Netscape products also. I would appreciate a confirmation that you
have received this email. If you would like to contact me please
feel free to do so.
Paul Speranza
Vice President
All Systems Go, Inc
(203)469-;2315
MTC-00028996
From: Randy Pipal
To: Microsoft ATR
Date: 1/28/02 7:45pm
Subject: Microsoft
Randall M. Pipal
2350 E. Apricot Dr.
Meridian, ID 83642
January 27, 2002
Attorney General John Ashcroft
US Department of Justice, 950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As a businessman, I don't understand why the government needed
to interfere with the business practices of Microsoft. After all,
Microsoft is a solid company that puts out a good product, is vital
to the economy, and is vital to the tech industry. If Microsoft is
not allowed to stand strong, I am afraid for what effect it could
have on the economy.
Microsoft has been more than willing to come to an agreement in
order to facilitate this suit. It seems their efforts are futile
since no one seems to want to end this case. Not only did Microsoft
agree to the establishment of a technical committee that will
monitor Microsoft's compliance with the settlement and assist with
any disputes, they also agreed that if a third party's exercise of
any options in the settlement would infringe on any of Microsoft's
intellectual property rights, Microsoft would provide them with a
license
[[Page 28491]]
to the necessary intellectual property on non-discriminatory terms.
That seems more than fair to me.
Let's move on. The economy needs it. Thanks.
cc: Senator Larry Craig
Sincerely,
Randall Pipal
CC:[email protected]@inetgw
MTC-00028997
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:47pm
Subject: microsoft settlement
This case should be settled immediately before any further
damage is done to the economy.
MTC-00028998
From: Jeff Beitzel
To: Microsoft ATR
Date: 1/28/02 7:47pm
Subject: Microsoft Settlement
As a programmer and system administrator, the Microsoft
judgement will impact me greatly. I have been working with both
Microsoft and non-Microsoft products for over 5 years, and in that
time I have seen a trend in the software being used. As a system
administrator, the integration that Microsoft offers makes my
administrative tasks easier. Setup, as well as maintenance, is
easier in Microsoft products than in some of competitors, like
Oracle, Sun, Netscape, and Linux. The time savings I gain make me
more productive. As a programmer, Microsoft products show a
tremendous amount of innovation not seen elsewhere. Microsoft has
often been accused of breaking standards, but it should be noted
that they typically embrace and extend. They take off where
standards fall short, they allow the products I write to be better.
To me, that innovation they provide is of utmost importance. Also,
when doing web-development, Netscape is a horrendous product to work
with. Microsoft didn't kill Netscape, Netscape committed suicide by
refusing to improve its product and listen to its customers. On a
more personal side, I am often recruited to help out non-computer
literate friends and family, they need the ease of use, and pricing
of Micorosft. Without Microsoft PCs would not be commonplace, but
relegated to the hobbists and professionals. Microsoft has made this
a connected world because they have given us what we want.
This whole anti-trust situation that has me greatly troubled, as
a consumer, person, and somone who creates. It is that the
government has abandoned its duty to protect successful people and
their property, and chosen to persecute them. The fact is Microsoft,
by its own blood, sweat, and tears created its products, and by
right has sole ability to decide what to do with its property. The
government has proceeded on a witch hunt led by Microsoft's failed
competitors under the guise of ``protecting the
consumer'', the only people trying to be protected are lacking
competitors who would rather pull success down than actually work
for success. I resent the implication made by those arguing against
Microsoft that I am a helpless victim incapable of making decisions
for myself. I use Microsoft products because they are the best
available to me. If Netscape, Oracle, or Linux met my needs I'd use
them; but they don't. Microsoft is a company that should be
commended for its success and supported by the government, not
beaten down by it.
It is because of the above I say, ``Leave Microsoft
Alone.'' and do not place regulations or restrictions upon
them. They are a company that has made my life better, not worse.
The likes of Oracle, Sun, Netscape, Linux, and the other whiners
would do well to take a lesson from Microsoft's playbook: Innovate,
the consumer appreciates that. America needs that.
Sincerly,
Jeff Beitzel (Concerned American and Consumer)
CC:[email protected]@
inetgw
MTC-00028999
From: Anthony Mangan
To: Microsoft Settlement
Date: 1/28/02 7:43pm
Subject: Microsoft Settlement
Anthony Mangan
155 Quail Hollow Drive
San Jose, Ca 95128-;4544
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Anthony Mangan
MTC-00029000
From: Charles Buzbee
To: Microsoft Settlement
Date: 1/28/02 7:43pm
Subject: Microsoft Settlement
Charles Buzbee
2188 SW 55th. St.
Redmond, OR 97756
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Charles L. Buzbee
MTC-00029001
From: Nancy Ward
To: Microsoft ATR
Date: 1/28/02 7:50pm
Subject: Microsoft Settlement
Dear Ms. Hesse:
I write, as a private citizen, to oppose the Justice
Department's proposed Microsoft Settlement, currently under review..
I believe that Microsoft has a history of stifling innovation in
computer technology, thus harming individual consumers and the
national economy. An atmospher in which witnesses of Microsoft's
violations are afraid to inform law enforcement officials of their
knowledge, which has existed in this country, is harmful to the
computer tecchnological industry, as well as law enforcement and
belief in the efficacy of the justice system in our country.
Since the settlement does virtually nothing to protect computer
manufacturers and others from Microsoft's retaliation, those who
defy Microsoft's behavior and views of the technological world are
left to become martyrs to what the legislation prohibiting
monopolies was designed to prevent.
Remedies proposed by the nine state attorney generals who are
still plaintiffs would genuinely constrain Microsoft from its unfair
business practices and liberate the technological industry from
Microsoft's shadow of fear. Left unchecked that shadow will grow and
expand into other areas--;why wouldn't it, if there's nothing to
stop it, nothing to challenge the unfair and illegal behavior? The
existence of such a monopolistic entity is a threat to the well-
[[Page 28492]]
being of all who challenge it in the future, and all who would
strive for a different and better industry.
Send a message, that justice in the USA is not dead, a commodity
sold to the highest bidder, or a kickback to the highest political
contributor. Help us be free of this monstrous, harmful entity. Let
innovation flourish in this once dynamic field. By freeing the
development and exchange of ideas in the technological field, you
will help us all to flourish.
Thank you for the opportunity to present my comments.
Nancy Ward
9802 SE Dundee Drive
Portland, OR 97266
email: [email protected]
From: J Surlow
To: Microsoft ATR
Date: 1/28/02 7:50pm
Subject: Microsoft Settlement
Jan 28, 2002
To Whom It May Concern,
The Microsoft settlement does nothing to end the monopoly that
they are. If nothing is done about that now, will anything ever be
done? Can anything stop the predatory practices of this monopoly?
James D. Surlow
Broomfield, CO 80020
MTC-00029003
From: Joseph W Pfahnl
To: Microsoft Settlement
Date: 1/28/02 7:44pm
Subject: Microsoft Settlement
Joseph W Pfahnl
2197 Glenkirk Dr
San Jose, CA 95124
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joseph W Pfahnl
MTC-00029004
From: Brian Trotter
To: Microsoft Settlement
Date: 1/28/02 7:46pm
Subject: Microsoft Settlement
Brian Trotter
304 Chambers Rd.
Arab, AL 35016
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Brian Trotter
MTC-00029005
From: Don Alvarez
To: Microsoft Settlement
Date: 1/28/02 7:46pm
Subject: Microsoft Settlement
Don Alvarez
7640 N. Quail Ridge Dr.
Tucson, AZ 85743
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
A Very Concerned American!!
Don Alvarez
MTC-00029006
From: Allen L Plitt
To: Microsoft ATR
Date: 1/28/02 7:53pm
Subject: microsoft settlement
Dear Sirs:
Please end all litigation quickly. The longer this goes on, the
more rediculous it gets. We are now asking a company's competitors
what punishment they desire levied because they cannot produce a
better product. What good is that?
MTC-00029007
FROM: Richard Duncan
TO: MS ATR
DATE: 1/28/02 7:53pm
SUBJECT: Microsoft Settlement
Richard J. Duncan
9302 red-Wood Road, A-304
Redmond, WA 98052
425-;830-;2202
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am in favor of the Microsoft antitrust settlement agreement.
the terms of the settlement agreement are reasonable, and will
appropriately address the concerns raised about anticompetitive
business practices. Continued litigation will not produce a better
result. Addressing the allegation that they have acted in a
predatory manner, Microsoft has agreed not to enter into contracts
that will obligate third parties to exclusively distribute Windows.
They have also agreed not to take retaliatory action against those
who promote software that competes with Windows. The net result of
the settlement agreement will be a more level playing field for
Microsoft's competitirs. additionally, a technical committee will be
established to monitor Microsoft's compliance wit the settlement
agreement. any party who believes Microsoft has violated the terms
of the settlement agreement may lodge a complaint with the technical
committee. These types of safety mechanisms will ensure no further
violations of antitrust laws occur.
Given the vast array of concessions that have been made by
Microsoft, no further litigation is warranted. I am hopeful the
Department of Justice will remain committed to settling this case.
Thank you for your time and attention.
[[Page 28493]]
Sincerely,
Richard Duncan
MTC-00029008
From: David Horrocks
To: Microsoft ATR
Date: 1/28/02 7:54pm
Subject: Microsoft Settlement
To: Judge Kollar-Kotally
Re:Microsoft remedy
As an IT professional I am writing to express my concern about
the proposed Microsoft settlement. I work extensively with Microsoft
at the local level in Philadelphia, and have given considerable
thought to their market position. We depend on their products, and
to some extent their good graces, for consulting revenue.
I offer these thoughts:
As an MBA student, I have analyzed Microsoft's channel strategy
(document attached). It is clear that market dominance (i.e.
monopoly) has led to changes in Microsoft's approach to the channel.
The changes are generally not good for those of us on the receiving
end. I don?t suggest that this is illegal, but offer it as evidence
of the effects of monopoly.
I believe an OS is a natural monopoly ? and product with a
decreasing marginal cost of production would be expected to be, and
software's marginal cost of production is pennies per copy. So
Microsoft's current monopoly position is not necessarily the result
of illegal activity. In fact, I would argue that their product
positioning, marketing decisions, and coding talent have been the
primary source of their success. Those are all admirable traits.
Because the OS is a monopoly I would disagree strongly with
Microsoft's critics would argue for a breakup. That would not serve
the market or the consumers, and would only postpone the natural
monopolistic state. One of the split up firms would win eventually.
But, other natural monopolies are more heavily regulated, such
as power delivery. Microsoft should be thoughtfully regulated.
The proposed settlement is very minimal regulation, and not
enough to protect the legitimate competitors Microsoft can, by
virtue of its OS position, crush at will.
I would hope that regulatory oversight would focus on protecting
competitors from bundling that leverages the OS position. Force them
to sell products rather than bundle them. Clearly bundling is just a
means to defending market power.
Examples of products that could be integrated but ought to be
regulated include: terminal services (Citrix), media services (Real
Player), offline storage, virus protection, systems management, and
others.
Thank you for your consideration of these issues,
David Horrocks
1010 Windsor Ave
Dresher, PA 19025
Mobile: (215)-;353-;1531
MTC-00029009
From: David Bowman
To: Microsoft ATR
Date: 1/28/02 7:55pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft:
I am writing during the public comment period in support of the
settlement reached in the Microsoft antitrust case.
The options for you are, as I understand them, to accept the
settlement agreement reached or to return to Court for further
litigation. In light of the state of our economy, continued
litigation makes little sense. We cannot afford to keep Microsoft on
the sidelines.
Microsoft has agreed to make changes in the way it conducts
business, which will be conducive to increased competition within
the software industry and to economic growth. Microsoft's agreeing
to allow computer makers the right to reconfigure Windows operating
systems so as to promote non-Microsoft software should prove to be
of immediate benefit to the economy.
Please go forward with the settlement as soon as possible. It is
in the public's best interest.
Sincerely,
David Bowman
MTC-00029010
From: russell a cox
To: Microsoft ATR
Date: 1/28/02 7:55pm
Subject: Microsoft settlement
Please accept the settlement offer that has been presented. It
is time to move forward, not backwords.
Thankyou
MJCox
MTC-00029012
From: Ron Wike
To: Microsoft ATR
Date: 1/28/02 7:56pm
Subject: Just a few comments about the Microsoft situation
1. If you remove the deterrent from a crime, you might as well
declare open-season on that same crime.
2. It is a sad day for the United States of America when, on the
day after a Christmas when almost every PC given as a present, is
running software that has essentially been declared
``broken'' by the Federal Bureau of Investigation of the
United States of America.
3. Let us not forget who ultimately picks up the tab every time
one of our major corporations, including the Pentagon of the United
States of America and Microsoft itself, is at the mercy of anyone
who is willing to take the time to read a book.
4. Isn't it time to do something about this problem when the
worldwide monetary damages caused by the vulnerabilities of
Microsoft's software exceeds the total population of the world by
several billion?
5. Do we really want the future leaders of our country, who are
currently coming up through the grades of our educational system, to
be using software that has been declared a threat to the
infrastructure of our own country by the National Infrastructure
Protection Center of the United States of America?
6. Microsoft marketed their latest ``innovated''
product known as Windows XP as the most secure operating system
ever. It should be quite evident to you by this time that this is
not the case. In fact, this situation is much the same as the
proverbial used car salesman who insists that the speedometer has
not been turned back. However, the final liability of Microsoft's
behavior is yet to be known.
URL's to substantiate the above points provided upon request.
Since this is a matter of justice, and the ``J'' in DOJ
stands for justice, I find it necessary to remind you that Abraham
Lincoln declared that ``All men are created equal'' and
that we have a pledge of allegiance to our flag which, although
altered a few times over the past several decades, still ends with
the phrase ``With liberty and justice for ALL''!
Therefore, I encourage you to do your job and enforce the laws of
the United States of America with equality and due justice. (Long
overdue justice in my opinion). And, unlikely as it might be, it
would sure be nice to require the company responsible for all the
damage to pay for it (retroactive). If Mr. Gates/Microsoft think
they are stimulating a faltering economy, then perhaps their vision
is only short-term. In any case, isn't it a great way to erode
consumer confidence? What difference is there between capitalism and
communism when you are down to only one product and that product is
not only seriously flawed, but also a threat to your own national
security?
Regards,
Ronald E. Wike
MTC-00029013
From: Forest, Carl
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 7:56pm
Subject: Microsoft Settlement
Dear Sirs and Madams:
I used WordPerfect from 1987 through 2001 because it was by far
the best word processing software available. Beginning sometime in
the early to mid-90's, each time I bought a new computer, it came
with Microsoft Word. Each time I bought a new computer, I asked if
the vendor would send me the computer without Word and give me a
small decrease in price. The sales people always said they could not
do this. So, I got a computer with Word, and bought WordPerfect to
put on it. Even though I tried Microsoft Word each time I bought a
new computer, since the computer always had Word installed, I never
used it because it was obviously inferior to WordPerfect. However,
most other people, particularly corporations who watched their
budgets, use the ``free'' Word program. Eventually,
because it was ``free'', Word became the dominant word
processing software. Then Microsoft began charging for it.
Last year my company was purchased by a company that insisted
that everyone use the same word processing software. As a result, I
now accomplish about 20% less on the average when using word
processing because Word is not capable of easily doing what
WordPerfect can do seamlessly. Examples: 1. When you copy something
from one Word document in say, Arial font, into another Word
document with Arial Font, Word will change the font on you. You then
have to highlight and change the font back to what it should be. 2.
Paragraph numbering and bullets are so erratic in Word, that no one
uses these functions--;with word, we regress
[[Page 28494]]
back to the 80's for automatic paragraph numbering. For example,
when you insert a section in front of a newly numbered paragraph
with nothing next to it, Word will attach it to the previous
paragraph. When you save a document and reopen it, Word will often
renumber the paragraphs in some bizarre way. 3. Word has many
automatic functions that change things in the text, without your
asking, and these are nearly impossible to turn off. 4. Word has
inferior lists of symbols.
The above are just a few of the problems with Word. Yet it is
the dominant Word processor, not because it is better, but because
of clear anti-trust activity.
I believe that if the Government would do something so
WordPerfect or some other word processor could really compete fairly
against Microsoft, the productivity of this country would increase
about 10%.
Carl A. Forest
Partner and Regional Manager, Boulder Office
Patton Boggs LLP
867 Coal Creek Circle, Suite 200
Louisville, CO 80027
Tel: (303) 379-;1114
Fax: (303) 379-;1155
MTC-00029014
From: Bill & Sue Morgan
To: Microsoft Settlement
Date: 1/28/02 7:47pm
Subject: Microsoft Settlement
Bill & Sue Morgan
4391 Nelson Siding Road
Cle Elum, WA 98922
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Sue & Bill Morgan
MTC-00029015
From: William Lang
To: Microsoft Settlement
Date: 1/28/02 7:51pm
Subject: Microsoft Settlement
William Lang
976 Ferngate Drive
Franklin Square, NY 11010-;1804
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
William E.Lang
MTC-00029016
From: Larry See
To: Microsoft Settlement
Date: 1/28/02 7:50pm
Subject: Microsoft Settlement
Larry See
3770 Presidential Corridor West
Caldwell, Tx 77836
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Larry See
MTC-00029017
From: Morton Abramson
To: Microsoft ATR
Date: 1/28/02 8:01pm
Subject: MICROSOFT SETTLEMENT
My wife and I feel that it was a disgraceful waste of taxpayer
money to initiate an antitrust suit against Microsoft three years
ago.
However, since a settlement exists that will finally end this
case, we ask that you continue to support this settlement after the
Tunney comment period.
Some competitors and a few in the government are trying to have
this settlement withdrawn and Microsoft brought back to court until
a finish to this case that satisfies them is reached. Those opposed
to the settlement contend the settlement is not harsh enough against
Microsoft. However, this settlement will cause Microsoft to disclose
more formerly secret design code information than any computer
company has ever disclosed to others.
Why, other than for selfish reasons, do opponents of the
settlement think that this is inadequate? Why do they want to harm
Microsoft? Punishment of success is not the American way! We urge
you to ignore the anti-settlement argument.
Three years and millions of dollars later, this case should end
now at the federal level.
America has suffered enough embarrassment over this politically-
motivated case.
Sincerely,
Morton & Marlene Abramson
426 Green T Lake Blvd. West
Hernando, MS 38632
Phone 662-;429-;9488
MTC-00029018
From: Mark Mindenhall
To: Microsoft ATR
Date: 1/28/02 7:58pm
Subject: Microsoft Settlement
I urge the court to reject the proposed settlement reached
between Microsoft and the DOJ, and instead proceed with the
settlement proposed by the nine states which did not join the DOJ
settlement.
I believe the nine states'' proposal constitutes a most
reasonable remedy which will dramatically reduce Microsoft's
monopoly power and dramatically enhance competition. Personally, I
am more concerned about Microsoft's desktop monopoly (Win95, Win98,
WinME, Win2000 Prof, WinXP Prof, WinXP Home, etc.) and office
productivity monopoly (Microsoft
[[Page 28495]]
Office) than the strength of their server operating systems. These
two monopolies are tightly coupled, and each helps to preserve the
other. Office is so strong that its file formats (.doc, .xls, .ppt
primarily) have become de facto standards for exchange of complex
information between individuals and businesses. Any company wanting
to compete with Office needs to fully support reading, editing, and
writing documents using these file formats. However, Microsoft
provides little documentation of these file formats, which results
in competitors having to ``reverse engineer'' the files to
understand how the information is stored.
By simultaneously forcing Microsoft to reveal the details of
their file formats, while also making Office available on competing
platforms such as Linux and varieties of Unix, I think the
states'' proposal would dramatically increase competition in
the desktop OS market. Also, other applications would be able to
ensure 100% compatibility with Office documents, which would create
viable alternatives for creating and exchanging documents using the
de facto standard Microsoft file formats.
Mark Mindenhall
MTC-00029019
From: Merton Singer
To: Microsoft ATR
Date: 1/28/02 7:51pm
Subject: Microsoft Settlement
TO: Department of Justice
RE: Microsoft Settlement
In my opinion, the settlement proposed for Microsoft is
sufficient. In fact, it is already overkill. It must be kept in mind
that the changes in our legal system have not, and cannot keep pace
with the rapidly evolving changes in high technology. Microsoft
might have somehow been in technical violation of our
``traditional'' anti-trust laws. I'll admit that.
However, had Microsoft been forced throughout its history to
restrain itself in a literal sense to these laws, it undoubtedly
would have never created all the outstanding computer systems and
concepts, which most homes, businesses, medical facilities, schools,
etc., in America can now afford.
To punish Microsoft more severally than outlined in the present
settlement proposal is analogous to rewarding other companies for
their lack of vision, mediocrity, and/or lack of means or desire to
compete in an extremely intangible, and risky market. Microsoft is
too important an entity to be shackled because others cannot, for
whatever reason, keep pace.
Sincerely,
Steve Singer
105 Biltmore Drive #203
San Antonio, TX 78213
MTC-00029020
From: Gilbert Andreen
To: Microsoft Settlement
Date: 1/28/02 7:55pm
Subject: Microsoft Settlement
Gilbert Andreen
235 Rockhill Drive
San Antonio, TX 78209
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
G. M. Andreen
MTC-00029021
From: Greg Piper
To: Microsoft ATR
Date: 1/28/02 8:00pm
Subject: Microsoft Settlement
To the Honorable Judge Kollar-Kotelly:
The Discovery Institute would like to affirm to the court its
support for the proposed Microsoft antitrust settlement. Our mission
is to ``make a positive vision of the future practical,''
and we believe that while any settlement is far from perfect, this
particular settlement is very practical and will contribute
positively to economic stabilization and growth in America as well
as to technological innovation in the public interest--;causes
we have advocated from the Institute1s debut 12 years ago.
Microsoft is the leading player in the software industry, and
its actions as well as actions against the company will have a
substantial ripple effect throughout the technology sector and
economy at large. Its success has led the way in a growing and
stable market for software products that has carried through the
collapse of most dot-com enterprises and contributed to record
government surpluses until now. Microsoft1s competitors have the
right to challenge its market supremacy with their own products and
innovations, but in recent years the nature of their competition has
largely revolved around government intervention initiated and
prodded on by the competitors. AOL Time Warner lately has invested
at least as much time and energy in lobbying Washington as in
developing attractive and useful products. It purchased Microsoft1s
rival Netscape, which makes a browser that is more expensive than
and inarguably inferior to Microsoft1s. It didn1t bother to promote
the acquisition to its massive AOL audience, preferring to blame its
ineptitude on a rival. This reflects a strategy used by the fallen
Enron Corp., which extolled the virtues of a deregulated energy
market while lobbying government for legal restrictions on its
market rivals. Enron1s demise has yet to show serious economic
damage. But the assault against Microsoft, in our judgment, has
contributed to the current technology sector depression and to
recession in the economy as a whole. It is time to call it off.
Economic success rests not only on prudential government
regulation, but on a company1s motivation to continually improve its
products and make innovations that will attract more consumers.
Software users, whether individuals or business, have gradually been
leaving the tech market for the past few years because a lack of
innovation has decreased any incentive to upgrade their equipment.
Massive discounts on computers and accessories can stem the
technology exodus for only so long.
The proposed settlement has been careful to limit the damage to
Microsoft while redressing its legal breaches in software design and
marketing, and any further litigation is likely to devolve into
jockeying for advantage between rival corporations, absent of any
public interest. For the sake of both the tech sector and the
economy that responds so sensitively to its sways, this practical
and evenhanded settlement should be enacted expeditiously.
Bruce Chapman, President
Greg Piper, Director of Communications
MTC-00029022
From: Robert L. Brown
To: Microsoft ATR,Ford James F.
Date: 1/28/02 8:01pm
Subject: Microsoft Settlement
The settlement is, in itself, a reward for Microsoft's anti
competitive activities. I hope the court holds Microsoft to a trial
to hear the evidence of Damages. The company is unbelievable, as the
evidence showed during the trial. If the company can not be broken
up it should be punished so severely, based upon it's assets, that
no other company will consider doing the same as Microsoft in its
aggressive anti competitive actions.
This is just my opinion based upon the many pages of material I
read about the trial and my own thoughts as to why some programs
like WordPerfect were caused problems by the Operating System while
``Word'' was not.
Robert L. Brown
[email protected]
P. O. Box 358
Arnold, MO 63010
636-;296-;8260
FAX 636-;296-;0925
MTC-00029023
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 7:58pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
[[Page 28496]]
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Roger Yurczyk
23033 164th SE
Kent, WA 98042
MTC-00029024
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:02pm
Subject: Microsoft Settlement
Marilyn Baldwin
19 Seaview Avenue
Cranston, RI 02905
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530
Dear Mr. Ashcroft:
The case against Microsoft has been controversial. As a
concerned citizen, I have followed the case against Microsoft with
much interest. While I use Microsoft products, I do believe that at
its pinnacle Microsoft may have engaged in anticompetitive
practices. The settlement agreement reached last November is
equitable indeed, and if enacted, will have many benefits for the
technology sector. Thus, I urge the Justice Department to enact the
settlement at the end of January.
To expand, the terms of the settlement will benefit consumers,
developers, and manufacturers in the technology industries. With the
interim release of Windows XP, users of the operating system will be
able to reconfigure their desktop according to their own needs.
Thus, users will be able to delete Microsoft software from Windows
and add competing software at their own discretion. In addition,
developers will benefit from the information disclosure of the
protocols and interfaces internal to Windows. This information
enables developers to produce software that is more compatible with
the Windows operating system. Further, PC manufacturers will be
given broad new rights to market competing software without fear of
Microsoft retaliation.
Much, then, will change with the implementation of the
settlement. Given the decline in the technology markets in recent
years, I believe that this settlement will encourage confidence in
the markets once more. Again, I urge the Justice Department to enact
the settlement. Thank you for your time regarding this issue.
Sincerely,
Marilyn Baldwin
MTC-00029025
From: Rody P. Cox
To: Microsoft Settlement
Date: 1/28/02 7:56pm
Subject: Microsoft Settlement
Rody P. Cox
#5 Connaught Ct.
Dallas, Tx 75225
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dr. and Mrs. Rody P. Cox
MTC-00029026
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:07pm
Subject: microsft settlement
I do not believe there is anything wrong with Micrsofts approach
to the market, infact I think Microsoft's is extremely customer
oriented & offers valuble products to all of us that use
computers & the internet.
MTC-00029027
From:
[email protected]@inet
gw
To: Microsoft ATR
Date: 1/28/02 8:03pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Dr. David Fisher
12921 Dale St #82
Garden Grove, CA 92841-;5034
MTC-00029028
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:06pm
Subject: Microsoft Settlement
Why does a Microsoft Certified Professional oppose the proposed
Microsoft-DOJ settlement?
[1] Because Microsoft is an unabashed monopolist that squelches
competition--;and innovation--;in a field that I chose to
enter back in the ``DOS Days''; when I (still) aspired to
be affiliated with a company that ``demystified'' personal
computers, and helped to bring them into small companies and
people's homes at an affordable price. Sadly, those days are long
gone...
[2] I could write a LONG list of the companies and products that
died in the Microsoft stranglehold, but I believe DOJ already has
that information in hand from the legal proceedings.
[3] I urge DOJ to force Microsoft to make all of it's API and
related code information for Windows 98 / Me / 2000 / XP open to
developers; or, those code and ``hidden'' API's in the
Office 2000 / XP suite that prevent seamless integration with other
suites (Corel, Lotus, Star, etc.).
(As an aside, I am so outraged by Microsoft's behavior that I
have become a very vocal advocate for open source operating systems
and office automation applications, and I run these on every machine
that I can. But even the Linux zealots can't overcome the Microsoft
``machine''!)
Jeffrey W. Stewart, MCP (#2110349)
[email protected]
Montgomery, AL
[BBsPC/PII266]
MTC-00029029
From: Shiven Malhotra
To: Microsoft ATR
Date: 1/28/02 8:08pm
Subject: Microsoft's Monopoly
To Whom It May Concern:
I have been a Microsoft user since I was ten years old. For th
longest time I believed that computers were meant to be used only by
those who can understand, or know how to use them. But as I grew
older I realised that technology has no place in our world unless it
can be applied to our everyday lives and to do that technology has
to be accessable to those who don't want to understand how the
technology achieves the outcome.
I switched to the Macintosh Operating System once I reached
college. I realised that Microsoft has never been an innovator in
[[Page 28497]]
computer technology but it has always known how to market its
products well. But marketing an inferior product is not illelage
PREVENTING COMPETITION IS!!
Innovation comes form those how feel that the status quo is not
meeting the needs of the common man. Innovators give us a brand new
way at looking at ideas and concepts. When a company comes uo with
an idea that threatenes the status quo, the status quo tries to
prevent the spread of the idea. Microsoft achieves this by crushing
the competition, or just making the competitive product incompatible
with the Microsoft Operating System.
In Saudi Arabia a years ago WordPerfect was going to release an
arabic version of its word processor that was far superior to
Microsoft Word. Microsoft decided to preempt WordPerfect by
releasing its version of Word in Arabic first. The only problem was
that though the box of the software was in arabic, inside THE
VERSION WAS IN ENGLISH. Microsoft provided a slip for a free version
of the arabic software once it had completed it. BUT it took nearly
3 years for the Arabic version to come out!!! People bought the
software believing that the software inside was in their native
language but were deceived!!
In Bill Gates book, ``The Road Ahead'', in the
original version he believed that the Internet was insignificant!!
Yet when Netscape posed a real challange to Microsoft, Mr. Gates
went on the offensive by making the Netscape browser less compatible
with the Microsoft Operating System, while its browser was brought
to the market.
Mr. Gates says that WindowsXP is the ``most secure
Operating System'' that Microsoft has ever built, yet hackers
have proven him wrong at every turn. Hackers even hacked into
Microsoft's ow website. The FBI issued a statement that the
Microsoft Operating System was not to be used, because of security
concerns.
Competition breeds quality in products deliverd and services
rendered. I am originally from India. I have been witness to the
changes in the quality of products and services in my country. The
lack of competition had made our companies compalicent. The level of
services the monopoly companies provided was the only level of
service the consumer experienced. There is no surprise that the
consumer believed that the level of service was good. After all SOME
SERVICE IS BETTER THAN NO SERVICE!!!
Today competition is starting to flourish in India. This has
woken up these sleeping giants. They now have to compete with the
innovators and new entrants into the market, or become part of
history. The consumer, once given a choice will go to the supplier
he or she feels best meets their needs. But they will not have this
option if they cannot see past the one supplier market!!
Microsoft's main aim is to sheild the consumers from ever seeing
any other possibilities in the market, and from preventing these
possibilities from ever materialising.
This brings to mind a picture of a dragon protecting a bridge.
One one side are the innovators and the competition and the other
side are the consumers. To get to the consumers the innovators and
competitors have to survive the dragon's displeasure. Even if they
manage to get past the dragon, the state in which they get past no
longer makes them viable competitors who can make a material
difference in the the market.
Microsoft is an innovator is an OXYMORON!!
Throughout history people in power have been scared by new
ideas. They have tried to discredit the idea or discredit the person
with the idea. Gallalio discovered that the Earth goes around the
Sun. He was burned at the stake for sticking to the truth.
PLEASE DON'T LET MICROSOFT PREVENT REAL CHANGE FROM COMING THE
INDUSTRY!! THEY HAVE FINANCIAL POWER, DON'T BACK THEM UP WITH LEGAL
FREEDOM!!
``Nothing in this world is so powerful as an idea whose
time has come''--;Victor Hugo
It's time we let Microsoft know that their Monopolistic
Strategies will not be tolerated by the United States!!
Thank You,
Shiven Malhotra
MTC-00029030
From: Paul Holwadel
To: Microsoft Settlement
Date: 1/28/02 8:01pm
Subject: Microsoft Settlement
Paul Holwadel
1391 S.O. Blvd.
Pompano Bch. , Fl 33062
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dr. Paul Holwadel
MTC-00029031
From: Louie Swalby
To: Microsoft ATR
Date: 1/28/02 8:08pm
Subject: Comment on MS Antitrust case
The Honorable US District Judge Colleen Kollar-Kotelly,
I wish to express my concern over Microsoft's initial proposal
to satisfy its antitrust penalty by providing second hand computer
hardware in schools and then its own operating system and associated
software applications.
This is pathetic of them to believe that the judicial system as
well as the public would believe that this is fair. Rather, it only
furthers their monopoly both in the schools and the future job
market, where these ``Microsoft schooled'' students will
know of no other choices.
Let Microsoft provide hardware (either PCs, or MACs), and let
them provide the hardware for providing networking to the schools.
Let the schools choose the operating system (MAC, Linux, or
Microsoft). I encourage you to seriously consider the offer by Red
Hat's president to provide the free Linux OS to all schools.
The United States is synonymous with the idea of choices, a
democracy provides for choices.
Microsoft has one choice: theirs. I urge you to reject the
proposal put forward by Microsoft in this antitrust settlement.
Respectfully,
MTC-00029032
From: W R Jackson, Jr.
To: Microsoft Settlement
Date: 1/28/02 8:03pm
Subject: Microsoft Settlement
W R Jackson, Jr.
55 Burbank Lane
Yarmouth, ME 04096
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more
[[Page 28498]]
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
W R Jackson Jr
MTC-00029033
From: James Wyatt
To: Microsoft Settlement
Date: 1/28/02 8:03pm
Subject: Microsoft Settlement
James Wyatt
7563 Wesselman Road
Cleves, Oh 45002-;8604
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
James A Wyatt
MTC-00029034
From: Michael Robertson
To: Microsoft ATR
Date: 1/28/02 8:08pm
Subject: Microsoft Settlement
Statement of Michael Robertson, CEO, Lindows.com, Inc.
1. I am the Chairman and Chief Executive Officer of Lindows.com,
Inc. (``Lindows.com'') and have been employed in that
capacity since the company's inception in 2001. I have previously
served as founder, CEO and Chairman of MP3.com, an Internet-based
digital music storage, management, delivery and promotion company
MP3.com, since March of 1998. MP3.com was sold to Viviendi/Universal
on August 29, 2001. I have personal knowledge of the facts set forth
herein and, if called as witness, I could and would competently
testify thereto.
2. Lindows.com, Inc. is a software company currently developing
a new personal computer operating system (``OS''), called
LindowsOS, that has the ability to run applications written for both
the Linux and Microsoft Windows operating systems. Before LindowsOS,
a Linux application would run only on a Linux-based operating
system, and a Microsoft Windows-based application would run only on
a Microsoft Windows operating system.
3. In cooperation with the many open source community
programmers, Lindows.com's software engineers have developed a
Linux-based operating system with over ten million lines of code,
which will incorporate the performance, stability, and secuirty of
Linux while being able to run popular Microsoft Windows-compatible
applications, as well as all Linux applications. LindowsOS is the
commercial culmination of years of computer science research by
Lindows.com and other software companies, seeking to harmonize use
of the two most common, but incompatible, computer operating
systems.
4. Computer and electronics hardware and software cannot
function as standalone products. They are integral pieces of a
complex environment that businesses and consumers use to be
productive, connected, or entertained. Each piece is required to
interoperate with the other to be useful to a computer user.
Microsoft's software dominance over the last ten years has taken
what was once a rich ecosystem of software and hardware innovation
and homogenized it as competitors have been legally and illegally
put out of business. This ``ethnic cleansing'' of computer
software has left Microsoft and its Win-32 based language, the
universal operating system to which any company hoping to penetrate
computing OS markets must conform. In other words, for a software
company to compete they must speak ``Microsoft'' If steps
are not put into place now to allow others to obtain a dictionary of
the language AND be able to speak it without suffering
repercussions, there will be no competition to Microsoft for the
foreseeable future. If companies other than Microsoft are allowed to
speak this language, there will be a resurgence of competition and
innovation in computer and electronic software and hardware.
5. This ``dictionary'' which Microsoft maintains is
not the source code to its operating system or middleware, but
rather the blueprint for communicating with those products--;the
APIs. Microsoft's knowledge and control unpublished APIs has allowed
it to exert enormous control over how well applications running on a
Windows-based platform work. For instance, Microsoft's
``Word'' word processing program now dominates the word
processor market simply because Microsoft itself had nearly
exclusive access to its own APIs for years, giving it an advantage
in designing its products to perform well with its operating system.
It has exercised this same ``API control'' strategey with
many other applications, dominating, for instance, the spreadsheet
(Excel) Internet browser (Explorer), presentations (PowerPoint), and
media player (Media Player) applications.
6. Even though Microsoft today publishes a tiny number of APIs,
it continues to maintain an advantage over competing operating
system manufacturers such as Lindows.com and software developers
because it fails to disclose information sufficient to allow
competitors to design software which fully supports the APIs of the
application software, disk formats and file formats. As a result,
competing operating system software manufacturers are forced to
engage in an expensive process of blindly attempting to decipher
Microsoft's APIs through trial and error. Most companies abandon the
process after costly investments and the few that have produced
products are very limited in their functionality.
7. Microsoft also exerts enormous anti-competitive influence
over OEM hardware manufacturers'' configurations of their own
hard drives which are controlled by Microsoft's operating system.
Since the vast majority of computers shipped over the last 10 years
have Microsoft Windows operating system preinstalled, the
accompanying hard disks are configured with either vfat or NTFS
configurations. The specifications for NTFS and vfat are not
published and known only by Microsoft. As with the APIs, because
only Microsoft has access to and dictates the specifications for
controlling the hard drives installed in these computers, competing
operating systems are effectively blocked from information critical
to designing effective and stable systems.
8. To restore competition, the ``Microsoft
dictionary'' should be made public. If the language is secret,
potential competitors will not be able to speak the common language
used by computer hardware and software, and Microsoft alone will
continue to exert enormous influence by selecting who can (and
can't) know this language. Microsoft must not be able to gain
advantage by delaying publication of the common language, so that
competitors will have fair opportunity to meet Microsoft to market
with products. Full disclosure of all current and future proposed
file formats (including VBA scripting language for full PowerPoint
compatibility), as well as future updates in advance of commercial
releases are necessary to restore balance.
9. Requiring Microsoft to share the language its interfaces use
does not dilute the value of what Microsoft creates, as Microsoft is
allowed to maintain the proprietary nature of the code for its
various programs. Requiring Microsoft to disclose the common
language its programs use to interact with other programs and with
computer hardware permits independent companies to use this common
language to create innovative applications which can fairly compete
with Microsoft in the open marketplace, avoiding excessive
government monitoring and entanglement.
10. While Microsoft argues that it is continuing to innovate,
the fact is that all operating systems vendors are innovating, but
because Microsoft controls 95% of the market already, and has been
held to have consistently abused that market power to maintain its
monopoly, Microsoft is the de facto standard regardless of the
comparative benefits of its product. Indeed, recent lapses in the
security of Microsoft's XP products have spotlighted just one of the
many
[[Page 28499]]
comparative deficiencies of Microsoft's operating system. Yet,
despite the fact that Linux-based operating systems are more secure,
more stable, and more affordable for many applications, Microsoft's
system continues to dominate. This can only be due to the absence of
fair market conditions.
11. Ultimately consumers will benefit as they see enjoy more
product choices, which will control pricing through natural market
forces. The open source community developing applications for the
Linux operating system is a prime example of the myriad of programs
and applications which interface sharing can inspire. Thousands of
programs currently exist in this environment, created by individuals
and major corporations alike, all of which are designed to enhance
the functionality of computing.
12. I strongly urge that Microsoft required to publish the
specifications for file formats, hard disk formats and programming
APIs. With advance and complete disclosure of the Microsoft
programming APIs, file formats and disk formats, and with the
requisite protection to implement them in the course of building a
business, it is possible to restore competition to the computing
environment.
I declare under penalty of perjury that the foregoing is true
and correct. Executed in San Diego, California, this 28th day of
January, 2002.
MTC-00029035
From: Steve Riddle
To: Microsoft Settlement
Date: 1/28/02 8:04pm
Subject: Microsoft Settlement
Steve Riddle
8608 Twilight Drive West
Ft. Worth, TX 76116-;7661
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Steve Riddle
MTC-00029036
From: Harry Alford
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 8:03pm
Subject: Microsoft filing Kansas from National Black Chamber of
Commerce
1350 Connecticut Ave NW Suite 825
Washington, DC 20036
202-;466-;6888 202-;466-;4918 fax
January 28, 2002
Email Address:
[email protected]
Subject: Microsoft Settlement
The National Black Chamber of Commerce (NBCC) promotes the
interests of the more than 64,000 Black-owned businesses in the
United States. We have 201 affiliated chapters located in 40 states,
including Kansas, and eight countries.
Although NBCC generally supports allowing the market to sort out
competitive issues between corporations, we believe that in this
case it is simply too late for self-regulation. Microsoft has
stifled competition at every turn in its history. It is time for a
change. Unfortunately, the proposed settlement between Microsoft and
the Department of Justice will not effect this change. It is far too
weak ? its requirements are not expansive enough and its enforcement
mechanism is not strict enough.
We agree with Attorney General Carla J. Stovall's position that
more must be done to rein in Microsoft's anti-competitive behavior.
Specifically, to promote competition and innovation, and provide
alternatives to consumers, Microsoft should be required to:
* Offer competing developers a stand-alone, unbundled version of
Windows without built-in software
* Share the code for its Internet browser, Internet Explorer,
with other software developers.
* Auction to potential competitors the right to create the
Office software suite to operate on different operating system
platforms.
* Include Sun Microsystems? version of Java software in its
latest operation system, Windows XP.
Finally, we believe that the court should implement an effective
means of imposing punishment in the event of noncompliance and that
empower a court-appointed master to oversee the settlement. As it
stands now, there is not only no effective punishment mechanism,
there is no one even there to enforce the settlement!
In closing, I would just like to reiterate our support for these
additional measures to be included in the final settlement.
Sincerely,
Harry C. Alford
Harry C. Alford
President & CEO
MTC-00029037
From: Ken Demark
To: Microsoft ATR
Date: 1/28/02 8:09pm
Subject: Microsoft
Stop harrassing Microsoft, let the current judgment stand.
Ken Demark
CEO
BOLD Technologies, Inc.
MTC-00029038
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 8:13pm
Subject: Microsoft Settlement
To Judge Kollar-Kotelly and whom it may concern,
I have been Microsoft Certified Professional since 1993. I've
used many Microsoft products in that time. I will continue to do so;
either by personal choice or corporate mandate. I'm finding that my
non-Microsoft choices are less and less each year.
I work for a Fortune 500 company, using Microsoft's Outlook
email client, the number one propagator of modern computer worms,
viral or not. I am forced to use the very product that causes myself
and my company's resources so much energy to clean up after, time
and time again. Although Outlook Express is included on my personal
system, I have no such worries about email worms at home as I choose
to use a non-Microsoft mail package outside of work.
The proposed settlement does nothing to curb Microsoft's future
actions, certainly does nothing to reprimand past actions, and the
proof of both is that even in light of Judge Jackson's findings, and
the proposed settlement, it hasn't changed any of it's illegal
monopolistic leveraging. That alone should be proof that the
proposed settlement is entirely un-enforceable, and in-effectual.
Without stronger measures Microsoft will continue down the course
they've successfully navigated in the past, namely; Embrace, Extend,
and Extinguish. Another concern I have with the PFJ is language
which addresses competing ``commercial'' vendors. The fear
of many is that this language fails to protect not-for-profit
software projects from anti-competitive behavior. As not-for-profit
computing has been equally harmed by Microsoft's anti-competitive
practices, the PFS must explicitly grant not-for-profits equal
remedy and protection.
Regards,
Robert Johnson
[email protected]
MTC-00029039
From: Dale Snelling
To: Microsoft ATR
Date: 1/28/02 8:05pm
Subject: Microsoft Settlement
FOR--;you're killing the economy.
MTC-00029040
From: William Aldridge
To: Microsoft Settlement
Date: 1/28/02 8:05pm
Subject: Microsoft Settlement
William Aldridge
6424 Brookshire St.
Fayetteville, NC 28314
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
[[Page 28500]]
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
William Aldridge
MTC-00029041
From: Robert Mellor
To: Microsoft ATR
Date: 1/28/02 8:10pm
Subject: Microsoft Settlement
Your Honor,
As a computer fanatic, student, and professional, I have watched
Microsoft's practices with interest over the years. In 1995,
Netscape was the superior browser and held the lion's share of the
browser market. I feel that it is still the superior browser, but do
to some shady tricks and arm-twisting by Microsoft, the market share
has been reversed. As the complaint states, this is because Netscape
and its support for applications that are not OS (operating system)
dependant could threaten Microsoft's monopoly hold on the operating
systems market. Operating systems like Linux Red Hat and Apple could
actually gain a respectable share of the market, if not an even one.
I actually like a lot of the products that Microsoft puts out.
But I have watched other products that I like as well become victims
of (what I believe to be) illegal contractual arm-twisting to
prevent manufacturers of hardware from offering any
``rival'' software. I hope that you will be able to do
something about this injustice, as this country became great on the
concept of competition. The industry as a whole would progress at a
substantially increased rate, and consumers would also benefit from
competitive pricing and an increased number of choices. I hope that
you can reach a decision that will strengthen this country's
historical commitment to fair and open market competition, something
that this proposed settlement does not accomplish.
Thank you for this opportunity to express my opinion,
Robert H. Mellor, II
Information System Support Coordinator
CHEP
Computer Network Systems Technology Student at ITT Technical
Institute
Graduating June, 2002
MTC-00029042
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:12pm
Subject: Microsoft settlement
As chairman of Citizens Against Higher Taxes, a Pennsylvania
public-interest group, I'd like to offer a brief comment on the
proposed Microsoft settlement. I am a long-time user of Word Perfect
and despise Microsoft Word; it really gripes me that Word has run
rings around Word Perfect in the marketplace. I'm sure millions of
other users of non-Microsoft products feel as I do. But we lost,
fair and square, in the marketplace of consumer choice. Just because
Microsoft is a successful company and produces an operating system
and software that most people want to buy, is no reason to punish
that success and hurt consumers.
I have looked over the proposed settlement terms and it
certainly seems to me that they clearly meet any reasonable standard
of curbing potential anti-competitive actions while still preserving
relatively free consumer choice.
I would hope that the settlement is upheld, so an innovative and
successful company can go about the business of providing ever-newer
and better products that appeal to many people (though not
especially to me).
James H. Broussard, Chairman
Citizens Against Higher Taxes
MTC-00029043
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 8:13pm
Subject: Microsoft Settlement
10 Red Oak Court
Voorhees, NJ 08043
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you today to express my opinion in regards to the
Microsoft antitrust dispute. I support Microsoft in this dispute,
and I feel that the litigation that has gone on for three years is
expensive and will negatively impact consumers. I support the
settlement that was reached in November as a means to end this
dispute.
This settlement will serve in the best public interest.
Microsoft has agreed to all terms of this agreement, including:
sharing information with competitors regarding certain internal
interfaces included within Windows and any protocols implemented in
Windows. Microsoft has also agreed to design future versions of
Windows to make it easier to install non-Microsoft software. This
settlement will benefit the entire technology industry.
During these difficult times, one of our highest priorities
should be to boost our lagging economy. Restricting Microsoft will
not accomplish this end. Please support this settlement so we can
focus on more important issues. Thank you for your time.
Sincerely,
Francis Clark
MTC-00029044
From: Joan Eslinger
To: Microsoft ATR
Date: 1/28/02 8:13pm
Subject: Microsoft Settlement
I am writing to express my opposition to the proposed settlement
to the ongoing antitrust case between Microsoft and the U.S.
Government. I obtained a B.S. in engineering from the University of
Illinois in 1981. I've worked in the computer industry in Illinois
and California for most of the time since then, with experience in
operating systems, networking, security, applications, and standards
compliance. I'm currently employed by Silicon Graphics (SGI) as a
software engineer. I have also followed this antitrust case with
great interest, reading the various documents made available to the
public including the findings of fact and findings of law, because I
have observed Microsoft's effect on the computing landscape for the
past several years.
I believe the proposed settlement will do nothing to deter
Microsoft from any of its business practices which have already been
proven to be predatory and to maintain and extend their monopoly. I
can't imagine what possessed the USDOJ to agree to such a thing.
The settlement does not address the most important point for the
survival of other operating systems: interoperability. One key way
Microsoft maintains and extends their monopoly is related to the
file formats produced by Microsoft's Word and Excel applications.
Almost every business in this country has found itself forced to use
these applications (and others) to interact with other businesses.
(I understand there are also government agencies contributing to the
monopoly by requiring documents be submitted in these formats, and
by disseminating information in these formats). And Microsoft makes
deliberate changes to the applications and their file formats
periodically, often disabling backward compatibility
``accidentally'', to drive widespread upgrades. The best
way to defeat this monopoly-maintenance mechanism would be to
require Microsoft to publish these file formats so that other
companies can write applications that will correctly read and write
Microsoft Office documents. This does not mean Microsoft has to
expose any of their source code. I know many people have called out
to require Microsoft to make their source code available. I don't
believe that is a useful remedy, and Microsoft has made clear they
would never agree to such a thing. Publishing file formats is
nothing like opening up source code. The TCP/IP protocols that the
Internet is built on are described in plain English (with some
specialized jargon), and many companies have used that English
description to write networking code that works with everyone else's
networking code. I believe the government could make a big
difference in the world of document exchange merely by specifying
that all correspondence be done in
[[Page 28501]]
openly-documented file formats. I believe this is one of the most
important requirements the goverment could insist on in this case.
The second most important problem is the secret and not-so-
secret deals Microsoft makes with hardware manufacturers to ensure
Microsoft products (and only Microsoft products) are available to
consumers by default. One way this comes about is that almost every
contract Microsoft signs with another company contains a non-
disclosure clause. Microsoft uses Operating System pricing as the
key in such contracts. If a company agrees to lock-out Microsoft
competitors, Microsoft will lower their cost to purchase Windows.
The uniform licensing terms of the proposed final judgement are a
good start, but do not go far enough. There is nothing to prohibit
Microsoft from making other deals that lead to a vendor receiving
cash or goods or services from Microsoft if it just happens that the
vendor does not offer any products from Microsoft's competitors. I'm
not an accountant, but I expect it would require analysis of not
just Microsoft's accounting records, but also those of the vendor's
to detect such a scheme. Frankly, I don't think anything will ensure
uniform pricing other than having the hardware vendors publish the
cost of Microsoft's software as a line item visible to the consumer,
in addition to giving the consumer the right to request a machine
with no Microsoft software for the cost of the machine without that
line item. Vendors will be less likely to lie about the cost of
Microsoft software if they know a consumer can knock that full
amount off the price when buying a machine with no OS.
There are many, many loopholes in the agreement that I'm sure
other people are writing in about, so I won't go into them in
detail. The DOJ should know, however, that Microsoft is famous in
the industry for writing contracts they can wriggle out of.
One such loophole I haven't seen discussed concerns the three-
person Technical Committee. The committee members are required to be
``experts in software design and programming.'' They are
not required to know anything about accounting, business practices,
contract law, or criminal investigation. They are permitted to hire
staff members, but they also must be software experts. Several
sections of the final judgement have nothing to do with software but
with contracts and business relationships. Why are there no lawyers
or accountants on this committee?
Here's just a short list of some of the problems I've seen in
the settlement:
Microsoft is allowed to retaliate against vendors who ship a
Personal Computer with no Microsoft software.
Microsoft is allowed to make extra payments to vendors who
comply with any unofficial rules they may have (III.A.), as long as
it takes the form of a payment for positive action (promotion)
rather than a negative action (withholding marketing funds). Intel
and Microsoft have both used the marketing funds budget over the
years to promote their monopolies. The current form of the Technical
Committee is unlikely to be able to police this effectively.
Why are vendors not allowed to advertise non-Microsoft
Middleware more prominently than Microsoft Middleware (III.C.3.)?
Vendors should be free to configure the systems they sell any way
they wish. III.F.2. is worthless. Most companies that work with
Microsoft are at a severe competitve disadvantage if they don't sign
up for co-marketing agreements. The co-marketing agreements will
effectively cancel this provision.
Microsoft should not be permitted to poison existing and future
standards. Microsoft is currently investing a lot of money in
network protocol design. The obvious inference is that they plan to
replace the open protocols of the Internet with their own
proprietary ones.
III.H. gives Microsoft permission to pre-empt non-Microsoft
middleware if there is a feature missing. Microsoft can always
arrange for Microsoft Middleware to have new features not available
in competitor's products (and some features, like ActiveX,
deliberately avoided by other products due to security problems). By
the time an ISV could add support for the new feature, the damage
would already be done. This clause will not change anything.
Microsoft can always refuse to document an API by claiming it is
security-related. By the time a Technical Committee member is able
to view the related code, Microsoft can change the API so that it
actually does implement some security function. The free operating
systems Linux and BSD, currently Microsoft's competition, will not
be able to license such code.
The definitions of ``Microsoft Middleware'' and
``Microsoft Middleware Product'' are such that Microsoft
can easily work around any restrictions on them. In three years the
problems will not center around ``Internet Explorer,
Microsoft's Java Virtual Machine, Windows Media Player, Windows
Messenger, Outlook Express and their successors'' or
``Internet browsers, email client software, networked audio/
video client software, instant messaging software''; they will
center around elements of .Net and new applications.
With the new subscription software model, the definitions of OS
revisions, upgrades, alpha and beta periods, and distribution will
change radically, to the extent that parts of the proposed final
judgement will not make any sense (and will no longer apply to
anything).
I hope you will take these comments under consideration when
evaluating the appropriateness of the proposed settlement. I do not
believe this settlement to be in the best interests of consumers or
the future of computing.
Joan Eslinger
[email protected]
MTC-00029045
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:12pm
Subject: ``Microsoft Settlement.'' Fax:
1-;202-;307-;1454 or 1-;202-;616-;9937
The Seniors strongly believes that the proposed settlement
offers a reasonable compromise that will enhance the ability of
seniors and all Americans to access the internet and use innovative
software products to make their computer experience easier and more
enjoyable. The settlement itself is tough on Microsoft, but is a
fair outcome for all parties--;particularly senior consumers.
Most important, this settlement will have a very positive impact on
the American economy and will help pull us from the recession we
have experienced over the past year.
Sincerely Forrest C. Milligan
MTC-00029046
From: Bob (038) Adie Santore
To: Microsoft ATR
Date: 1/28/02 8:13pm
Subject: Microsoft Settlement
TO : Renata B. Hesse, Antitrust Division, US Department of Justice
FROM : Robert Santore, Concerned Citizen
Please disregard my previous letter, as that was a draft and not
ready to be sent. I accidentally pressed the wrong button. So here
are my thoughts: I believe the Justice Department and America needs
closure on this (Microsoft) matter once and for all. How long has it
been, how much money will it take...and how long will it continue
on?
The Federal Government must state it's case, derive it's
penalties, seek resolution, and end it's relentless efforts to drag
this matter any further, perhaps into the next administration. The
Government needs to set a time limit. The longer the Justice
Department takes to administer it's justice, the public will be
thoroughly disgusted, and America once again will receive her
enormous share of worldwide ridicule.
This action is a waste of precious taxpayer resources, and most
of us believe the action by the previous administration was
politically motivated, fueled by Microsoft's competitors. No one has
yet to prove that the American citizen, or the software industry has
been hurt by the allegations of anti-competitive behavior. Is it
worth the cost? And, while the Government continues it's aggressive
pursuits, we have real serious problems to contend with, such as the
Enron case, where thousands of employees and investors were sucker-
punched....collapse of a major corporation, lost employment and
retirements. That's the real crime. And that's precisely where the
Justice Department should be spending it's efforts. The contentious
and incessant attacks against Microsoft must stop.
Remember that old saying, ``it's the economy......''?
I believe the actions of President Clinton and his administration,
the Democratic Congress, the raising of interest rates by the
Federal Reserve, the Justice Department versus Microsoft, the
collapse of Enron (and other big business), the lack of security in
the airlines and the attacks of 9/11 are the result of America being
diverted from really serious issues. ``It's the
Government.....!!!''
It's the Government which is creating an unhealthy economic
environment. It's the Government that knew our airlines and airports
were vulnerable. And it's the Government which will ultimately drag
the country into a deepening recession. Let's end this obsession
with Microsoft, let the Government fuel the market and get this
economy going again. Let's rock......
[[Page 28502]]
Sincerely;
Robert J. Santore
MTC-00029047
From: Richard H Carlson
To: Microsoft ATR
Date: 1/28/02 8:13pm
Subject: Microsoft Settlement
I believe that you should accept the settlement and cease the
litigation.
Sincerely,
Richard Carlson
MTC-00029049
From: LESTER (038) PAM TAYLOR
To: Microsoft ATR
Date: 1/28/02 8:14pm
Subject: Microsoft Settlement
Ir-;A YJ OR AWGUS R-;AWCH .Lester andTam Tayfor HC 89,BOX
225
Nt. Pteasant, AR 72561
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
RE: Microsoft Settlement
Dear Mr. Ashcroft:
We understand that the public comment period on the proposed
settlement agreement between the Department of Justice and Microsoft
closes today, January 28, 2002. We are writing to cast our votes in
favor of settlement. Given the record of accomplishment so far in
this case, it makes no sense to continue litigation when you have
the chance to conclude the case in a manner beneficial to the
economy. The primary complaint against Microsoft was that consumers
who chose to use Windows operating systems for their computers were
precluded from utilizing non- Microsoft software programs for such
services as Internet browsers and messaging services within Windows.
Microsoft has agreed to end this practice, and open its Windows
systems to such competition. With the major complaint answered,
there is no need to further litigate. Please end this case, and put
Microsoft back to work. The country needs to heal. Thank you for
your kind consideration in this matter.
Sincerely,
114-&A 0. Lester A. Taylor Cpa''@
a. Pamela 3. Taylor
MTC-00029050
From: Joe De Fazio
To: Microsoft Settlement
Date: 1/28/02 8:09pm
Subject: Microsoft Settlement
Joe De Fazio
6805 Douglas Blvd. #43
Granite Bay, Ca 95746
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joe De Fazio
MTC-00029051
From: Ernesto Starri
To: Microsoft Settlement
Date: 1/28/02 8:09pm
Subject: Microsoft Settlement
Ernesto Starri
P.O. Box 1934
Corona, CA 92878
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ernesto Starri
MTC-00029052
From: Brandon Wright
To: Microsoft ATR
Date: 1/28/02 8:15pm
Subject: Microsoft Settlement
5012 West Little Water
Peak Drive
Riverton, Utah 84065
January 17,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I think the anti-trust lawsuit filed against Microsoft
Corporation should finally be closed and satisfied. The suit charged
Microsoft with unfair business practices that limit competition, but
really the issues were new ground. The technology industry is
continually producing new products and procedures that challenge the
rest of the world to keep up, including legislation.
Moving forward, Microsoft has agreed to change their policies
and procedures to conform to the agreed terms of the settlement of
the lawsuit. They have actually agreed to more conditions than were
at issue in the lawsuit, and they did so to get the lawsuit behind
them and to resume business.
I think Microsoft has shown their intent to conform to the
ruling and the terms of the settlement. No further court action
should be taken against Microsoft Corporation.
Sincerely,
Brandon Wright
MTC-00029053
From: Tweetsy
To: Microsoft ATR
Date: 1/28/02 8:17pm
Subject: Microsoft Settlement
Dear Attorney General Ashcroft and his Colleagues,
How do you do? My name is Carina Flores*, and I would like to
present MY Views on the Microsoft Settlement:
1. Microsoft has SIGNIFICANTLY contributed to the Gross National
Product of this Country and to the direct and indirect Livelihood of
MILLIONS of people even beyond these patriotic shores;
2. Microsoft has GENEROUSLY contributed to MANY Charitable and
Educational Agencies dedicated to uplifting the lives of MILLIONS of
people in this country AND in this planet;
3. Microsoft has dramatically ALTERED the landscape of Democracy
by making it possible for information technology to be more
accessible to a greater number of people and helping us make MORE
informed Decisions in the process;
4. Microsoft KNOWS how to keep its Employees happy, productive
and instrumental in FUELLING the Economy of this Society, and
Microsoft, don't you ever doubt, is in it FOR THE LONG HAUL;
5. Mr Bill Gates of Microsoft IS one of the most ADMIRED people
in this Country and in the World, and he and his Colleagues HAVE set
NUMEROUS, fine examples of Ingenuity, Wealth-building AND Wealth-
Creation for the Youths of Today, and the MANY more Generations to
come;
6. This beloved country of ours is admittedly FOUNDED on
upholding the Law and discouraging unethical AND illegal behaviour,
but NOT --;- repeat --;- NOT on
[[Page 28503]]
punishing Success, which is what Microsoft's Detractors WOULD like
to happen because they are counting on you NOT to make that
Distinction.
7. This Country and the World IS, by far, BETTER OFF, because
Microsoft exists today. Thank you, and may right be done.
Sincerely
Carina F Flores
Box 19780
Stanford, California
94309
* I'm a FORMER Microsoft Contractor who left Microsoft with a
great deal of respect AND Admiration.
It is not enough to conquer, one must know how to
seduce.--;- Voltaire
MTC-00029054
From: John Dunn
To: Microsoft ATR
Date: 1/28/02 8:17pm
Subject: MICROSOFT SETTLEMENT
MS has done complied with everything that the DoJ has asked. AOL
is just looking for a free ride.
Finalize the decree and let's MS spend their dollars on
productive efforts.
John Dunn
MTC-00029055
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/28/02 8:15pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Stephen Bogdan
307 Ashmead Rd.
Cheltenham, PA 19012-;1506
MTC-00029056
From: Pease
To: Microsoft ATR
Date: 1/28/02 8:19pm
Subject: MicroSoft Settlement
Dear Sirs:
I fully support the proposed settlement of the Microsoft
antitrust action. Microsoft, for all its faults, continues to be the
one standardizing force in a market that easily fragments into many
special segments serving only cognoscenti of that segment. Microsoft
is aggressive and competitive and deserves the restraints imposed by
the settlement, e.g., I should be able to by a computer from anyone
without an operating system if I want it.
Please bring an end to the hectoring of one of two or three
great U.S. companies providing inexpensive computing to virtually
anyone with a job.
Sincerely,
George and Valerie Pease
MTC-00029057
From: William Tedrow
To: Microsoft Settlement
Date: 1/28/02 8:12pm
Subject: Microsoft Settlement
William Tedrow
hcr 32 box 399
moyie springs, idaho, ID 83845
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
WilliamA. Tedrow
MTC-00029058
From: Robert Stafford
To: Microsoft Settlement
Date: 1/28/02 8:12pm
Subject: Microsoft Settlement
Robert Stafford
5062-;B Foothills Dr.
Lake Oswego, Or 97034
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert Stafford
MTC-00029059
From: Albert Briggs
To: Microsoft ATR
Date: 1/28/02 8:18pm
Subject: Microsoft Settlement
PAlbert Briggs
7571 Links Court
Sarasota, FL 34243
January 28, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
It is unfortunate that some states wish to push for further
litigation against Microsoft. In my estimation, the states''
representatives on this case are spending more time listening to
money-hungry Microsoft opponents than looking closely at the factors
in the case. I have never supported Microsoft to the exclusion of
competition. They have in no way done anything that has negatively
affected me professionally or personally. I have worked in the
computer industry for over thirty years, and Microsoft is a true
leader. I currently am a satisfied user of AOL/Time Warner's
?Roadrunner? cable service to the exclusion of MSN. I did choose
Microsoft's ?Internet Explorer? product after a disappointing
experience with ?Netscape?. Microsoft's support and development
programs get my vote, However, one does not need to be an expert in
the computer field to see all that Microsoft has done for the
computer industry. Another factor that proves Microsoft's high
caliber has been their willingness to cooperate throughout this
lawsuit and to comply with the terms of the proposed settlement.
They have agreed to give their competitors access to Microsoft codes
and protocols in order to facilitate competitiveness. In addition,
Microsoft has agreed to have their compliance to terms of the
settlement monitored by a technical committee. Any person who has a
dispute with Microsoft may make their complaints known to this
committee.
I am truly hopeful that your office will remain determined to
resolve this matter. I thank you for all the work you have done
[[Page 28504]]
thus far and for keeping the public's interest at heart.
Sincerely,
Albert Briggs
MTC-00029060
From: David Beck
To: Microsoft ATR
Date: 1/28/02 8:19pm
Subject: pro comp and the trial
I think when all is said and done the boys of procomp and the
companies whose product they represent will go down in history as
the equal of enron and Anderson. I hope you suffer as big a loss as
the rest of us trying to just get by.
MTC-00029061
From: Sheevaun O'Connor
To: Microsoft ATR
Date: 1/28/02 8:20pm
Subject: Microsoft settlement
Dear DOJ Group
Thank you for this opportunity to share some thoughts about this
settlement. It is not often that we are asked or have opportunities
such as this.
As far as the details of the settlement I cannot be specific but
in summary I would say that this particular solution is allowing one
conglomerate to sidestep the law. Not only sidestep the law but to
impinge on fair trade for other systems. If a company has a superior
product that product should not be sabbotoged just because the
larger more well funded company wants that market share.
Let's be realistic for a moment in a fair trade arrangement,
meaning all companies have equal opprotunities, there would be a
better competitive market. Just look at what the IBM suit brought
about, PC's on every desk and much more.
I've began my teen life as a programmer at the age of 14 and
though that is not my vocation today I have always felt that there
were better systems out there. Allowing one company to monopolize
one or more markets is certainly not giving the public the tech
growth opportunities that are truly out there.
Think for a moment how the FDA handles products that are
ingested by humans. Why is it so difficult to see that we are
stunting the growth of other products by allowing MicroSoft such an
easy out.
Sincerely,
Sheevaun Moran
MTC-00029062
From: Seann Maxwell
To: Microsoft Settlement
Date: 1/28/02 8:15pm
Subject: Microsoft Settlement
Seann Maxwell
4324 Ridgemoor Drive N.
Palm Harbor, FL 34685-;3171
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Seann Maxwell
MTC-00029063
From: Robert Smith
To: Microsoft Settlement
Date: 1/28/02 8:14pm
Subject: Microsoft Settlement
Robert Smith
1715 Chip n Dale
Arlington, TX 76012
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert W Smith
MTC-00029064
From: Lois Amacher
To: Microsoft Settlement
Date: 1/28/02 8:16pm
Subject: Microsoft Settlement
Lois Amacher
4800 Marconi Avenue #128
Carmichael, CA 95608
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Lois Amacher
MTC-00029065
From: Nick Parlante
To: Microsoft ATR
Date: 1/28/02 8:22pm
Subject: need for competition
I'm writing to express my concern that Microsoft's current
position is a frightful drag on innovation and investment in
computer science, and that the proposed remedy falls far short of
fixing the situation. The obvious concern is that Microsoft can use
the market power of its monopoly operating system to achieve
dominance in other domains--;such as with the Netscape browser,
or the Real and Quicktime media formats. Obviously, we want
microsoft to compete on price and features in those new domains,
rather than leveraging its existing dominance.
Rather than repeat those arguments, I would like to come at the
point from a new direction.
What is the most exciting and valuable technology to come about
in computer science in the last 10 years? The Internet! At the time
the Internet burst on the scene, roughly 90% of the world's
computers were using Microsoft operating systems to run Microsoft
applications to produce and exchange microsoft formatted files. If
Microsoft controlled the operating systems and the applications and
the document formats, why did the Internet not develop as a
Microsoft feature? Why did the measly other 10% come up with the
best technology
[[Page 28505]]
of the last decade? There are two answers to this question:
1. Microsoft position has created, inevitably, an atmosphere of
complacency. The result has been a series of overpriced, insecure,
and just generally crummy products with high prices. It always stuns
me how breathless the marketing prose is for these things when they
are patently so lame. Or rather, how low our standards have become
for the price/performance of software. We have become accustomed to
lack of competition. Look at PowerPoint today vs. 5 years ago.
Compare that to a domain where there is competition, such as hard
drives, or databases.
The rest of computer science proceeds through ruthless
competition, and the contrast to the Microsoft products without
competition is stunning. With competition, PowerPoint would be far
cheaper now than it was 5 or 10 years ago. The atmosphere of
complacency inhibits something as useful as the Internet from being
developed inside of Microsoft--;it threatens the status quo.
2. Microsoft develops products to strengthen its
monopoly--;each product tries to tie in to the other Microsoft
products. Using such ties, both technical and marketing, the
Microsoft products lock into each other to protect the franchise
from a product that might compete in a single domain. From a
technical point of view, the practice enables some neat features,
but also a series of disastrous security holes. From a marketing
point of view, it has been entirely effective. For example,
PowerPoint could never stand on its own in the market with its
price/performance ($314 street price, Jan 2002), however bundled
with Word and Excel it does ok.
Besides all that, the habit of linking products together exactly
prevented Microsoft from developing the Internet. The Internet is
all about any-any connections. This works by having a freely
available standard, such as TCP/IP or HTTP, and having all systems
implement the standard in a non-discriminatory way. So A PC can make
a web (HTTP) connection to a Unix machine, or a Macintosh, or
whatever. In the early 90's, Microsoft created technology for PC-to-
PC networking, but it goes against the Microsoft linking strategy to
create good PC-Unix, PC-Mac etc. versions.
The Internet is the philosophical opposite of Microsoft's
``linkage'' strategy. Because Internet connections are
based on standards, they lead to --;competition--;. If you
don't like the brand X HTTP server, you can swap in the brand Y HTTP
server and it still works since the two are following the HTTP
standard. Looking back at the development of the Internet, one of
the key technical themes is: standards promote competition which
leads to continuous improvement in price/performance. The emergence
of the Internet is exactly a peek at what the world would look like
without Microsoft domination. The Microsoft domain is so leaden, so
stationary, that the tiny, non-profit driven standards projects,
such as TCP/IP or HTTP or HTML, created whole new domains while
Microsoft stood still. This reflects both the great dynamism that
competition creates as well as the sodden rule of a monopolist.
(That Microsoft would like to bring these new domains under its
control is, of course, the topic of the trial.) The point I would
like to emphasize, is how vibrant, how amazingly innovative and
valuable computer science can be when prompted with a competition.
We are so accustomed to the Microsoft hegemony, that we think of it
as high tech and innovative, whereas the Internet showed us that the
Microsoft domain is stationary compared to a real competitive
domain. Computer science has so much potential to create value when
pressed with competition. I fear that Microsoft's monopoly will
weight down that potential to look more like the pathetic history of
PowerPoint.
I would recommend that Microsoft be divided into three parts:
Operating systems, applications, and internet applications. Each
part should have to compete in its domain on its merits, without
technical, financial, or marketing ties to influence the competition
in the other two domains. Disclaimer: I own Microsoft stock. I think
if forced to compete, they would do fine on their merits.
Regards,
Nick Parlante
Lecturer in Computer Science
Stanford University
(650) 725-;4727
CC:[email protected]@inetgw
MTC-00029066
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:23pm
Subject: Microsoft Settlement
I have reviewed the provisions of the agreement between the
Justice Department and Microsoft Corp. I believe the provisions are
reasonably fair and that Microsoft is giving adequate accommodations
to their competitors. It is my opinion this case has been carried on
long enough and should be settled, in order that all parties
involved can move on with their respective programs. It is also my
opinion that a final settlement would be and is in the absolute best
interest of the entire country.
Thank you for the opportunity to comment on the settlement of
this case.
Sincerely,
Louis L. Studer
CC:[email protected]@
inetgw
MTC-00029067
From: Stephen McDaniel
To: Microsoft ATR
Date: 1/28/02 8:22pm
Subject: Microsoft Settlement
The settlement is a joke.
Microsoft is bad for business (except for MS business) and ,
most importantly, they are bad for a world gone wired. They write
bloated buggy software and force you into their upgrade scheme in
much the same fashion that they screwed computer makers with their
fascistic licensing practices. Everything they do runs counter to
the ethics of good coders.
Split em up. And let real programmers have a shot at the title.
Thank you.
Stephen G. McDaniel
[email protected]
MTC-00029068
From: Bethany Hanson
To: Microsoft ATR
Date: 1/28/02 8:24pm
Subject: Microsoft Settlement
Microsoft has had a stranglehold on our operating system market
for too long. The settlement proposed goes way too easy on them.
Please reconsider.
bjh
MTC-00029069
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:25pm
Subject: Microsoft Settlement
January 28, 2002
Ms. Renata B. Hesse
Antitrust Division
United States Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse:
As a consumer advocate and consumer, myself, of computer
products, I am compelled to file my comments concerning the proposed
settlement agreement in the Microsoft case. This case, which as
taken years of government resources and much of the public's
attention, is at its most important juncture. It is in the public
interest for the Department of Justice, Antitrust Division, to
uphold the spirit of competition by requiring changes in Microsoft's
business conduct. These requirements should be swift and specific,
ensuring free competition in the computer sector, not creating
further outlets for Microsoft's anti-competitive behavior. I believe
that sustaining a company like Microsoft in the current economic
climate is useful for empowering the American economy and foreign
economies to which the company is attached. However, there must be a
reasonable approach to the problem of its monopolistic behavior.
The proposed settlement appears to ignore the barriers to entry
issue that was at the heart of the entire investigation and
resulting lawsuit. To eliminate or minimize the barriers to market
which Microsoft is guilty of would provide more freedom of choice
for consumers and would open competition for other manufacturers to
provide ways to run existing Windows applications on different
operating systems. Creating a way to allow other manufacturers to
develop new products will have a profound and lasting effect on the
US economy, as they compete to produce better products with the
consumer in mind, and then in turn, distribute them through the
chain of distribution of their choosing. This will further affect
the economy as new businesses spring up to handle the increase and
variety of new products.
Furthermore, requiring that Microsoft share its technology with
industry participants will give the power of choice to consumers and
remove Microsoft from single-handedly dictating use of information
technologies. The handling of Microsoft can have implications in
many areas of our way of life, such as allowing for the expansion of
markets and promoting consumer choice, two things that consumers
like me look to the Department of Justice to ensure.
[[Page 28506]]
Sincerely,
Jaylene Sarracino
Attorney (DC & MD)
11160 Veirs Mill Rd. L-;15, Suite 201
Wheaton, MD 20902
MTC-00029070
From: Billie Staib
To: Microsoft ATR
Date: 1/28/02 8:26pm
Subject: microsoft
86 Waterdale Road
Williamsport, Pennsylvania 17702
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Let me start off by saying that the government had no business
bringing a case against Microsoft in the first place. That having
been said, I appreciate everything that has been done to end this
case quickly and get on with business as usual. The settlement is
fair; Microsoft will take steps to increase competition in the
marketplace by allowing its competitors to place their own programs
on the Windows operating system.
Now, more than ever, we need companies like Microsoft back at
full strength, helping the economy. Stop punishing them and let them
help get us out of this recession. I'm sure that there are more
important things for the Justice Department to be worrying about
right now as well.
Thank you for taking the time to listen to my opinion on this
and I hope it will have some effect.
Sincerely,
Billie Staib
cc: Senator Rick Santorum
CC:mailto:[email protected]@
inetgw
MTC-00029071
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:24pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Karen Duffy
194 Carnavon Pky
Nashville, TN 37205
MTC-00029072
From: Joyce Kelly
To: Microsoft Settlement
Date: 1/28/02 8:21pm
Subject: Microsoft Settlement
Joyce Kelly
216 Tom Bell Rd. 153
Murphys, CA 95247
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joyce M. Kelly
MTC-00029073
From: Scott Brennan
To: Microsoft ATR
Date: 1/28/02 8:28pm
Subject: MicroSoft Settlement
Scott Brennan
2473 Tonquin Street
East Meadow, NY 11554-;5331
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Microsoft and the Department of Justice have come to an
agreement ending the three-year-long antitrust case against
Microsoft. This came after round-the-clock negotiations ordered by a
U.S. District Judge. I feel this agreement should be honored. The
two parties agreed to this settlement, the federal judge accepted
this decision, so why should there be any further discussion? I do
not think it is in the best interests of our country to endlessly
review these decisions. Why do we have courts, after all?
Further, Microsoft has been more than fair in its settlement.
Microsoft has agreed to design future versions of Windows with a
mechanism to make it easier for computer makers to promote non-
Microsoft software; Microsoft has agreed to release important
internal information about Windows so that developers can more
easily write competing products. Enough is enough.
I ask that you approve this settlement and let our country get
back to business.
Sincerely,
Scott Brennan
MTC-00029074
From: David Goldschmidt
To: Microsoft ATR
Date: 1/28/02 8:29pm
Subject: Microsoft Settlement
Gentlemen:
I strongly object to the proposed settlement with Microsoft.
It's less than a rap on the knuckles to the company which has been
completely stifling competition in user software for over a decade.
Microsoft's anti-competitive approach to its business is most
clearly shown by it's abhorence of internet standards. The company
line is that they are ``improving the standard and making the
products better for consumers.'' This is total nonsense. They
know that open standards promote competition and make for a more
level playing field. This is anathema, of course. What they want,
and have so far been able to achieve for the most part, is to make
all common data formats Microsoft proprietary. The way to do this is
to make their internal data formats as complicated and difficult to
understand as possible. This makes it more difficult for potential
competitors to make their products compatible with Microsoft
products.
One technique in particular which they use to obfuscate very
effectively is executable content. Like all their other so-called
``innovations'', this is yet another attempt to prevent
other software developers from marketing compatible products. It has
also turned out to be a security nightmare for the internet. This
detestable policy of purposefully over-complicating data formats by
including executable code is by far the single most significant
security problem on the internet. It has enabled worms and viruses
to proliferate ad nauseum. It has cost business and industry
billions of dollars.
The latest strategy is to try to dominate the web by inducing
developers to use Microsoft web development tools which, of course,
generate web pages which only work with Internet Explorer. This
simultaneously puts the other browsers out of business and forces
the remaining developers to pay big bucks for the Microsoft
development tools.
There is zero benefit to consumers in all of this, Microsoft's
pious claims to the contrary notwithstanding. The company must be
broken up and its monopoly power eliminated once and for all.
Very truly yours,
David M. Goldschmidt
MTC-00029075
From: Larry Seel
To: Microsoft ATR
Date: 1/28/02 8:30pm
Subject: Microsoft Settlement
Larry M. Seel
1444 North High Street
[[Page 28507]]
Apartment B9
Columbus, Ohio 43201
January 5, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
As someone who works in and is extremely familiar with the
computer industry, I am writing you to express my opinion on the
Microsoft settlement issue. I believe that this settlement is long
overdue, and I am relieved to see this dispute resolved.
With the economy faltering and the IT industry in retreat on
many fields, I feel it is best to allow Microsoft to devote its
resources to designing innovative software. This settlement allows
all of us in the industry to get on with the business designing and
providing IT services. Even with the heavy sanctions this settlement
places on Microsoft, sharing of technical information, government
review committee, etc., Microsoft will still be able to be the
leading force in the technology sector.
Thank you for settling with Microsoft. I believe we should
devote our time and energy to more pressing issues at hand.
Sincerely,
Larry Seel
MTC-00029077
From: Scott Brennan
To: Microsoft ATR
Date: 1/28/02 8:30pm
Subject: MicroSoft Settlement
fyi: i just e-mailed my letter...hope it helps, & wasn't to
late.
sb
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street, NW
Suite 1200
Washington, DC 20530-;0001
To Whom It May Concern:
It is my hope that the Department of Justice will reconsider the
decision to settle the Microsoft antitrust lawsuit and follow the
lead of the nine state attorneys general who have rejected the
decision to let Microsoft off with a slap on the wrist. I am proud
that my state's Attorney General, Tom Miller, rejected this
Microsoft agreement. I believe that he and the other eight state
attorneys general recognize the many problems with this agreement.
The decision to prematurely end litigation against Microsoft is
a real error in judgment. A real opportunity exists for the
Department of Justice to take a stand and protect our free market
society and its consumers. Further litigation could effect real
change. Please continue to pursue Microsoft.
Sincerely,
Scott Brennan
#813940
MTC-00029078
From: Ted Fronefield
To: Microsoft ATR
Date: 1/28/02 8:32pm
Subject: Microsoft Settlement
I oppose the currently proposed Microsoft settlement as being
one that does not further the ordinary citizen's future interest in
having the best computer software available at the best price. If
the Microsoft settlement allows the installation of used and
refurbished computers with Microsoft operating systems into schools
it will provide Microsoft with an otherwise unavailable market
destination for disposing of old PC equipment and a monopoly for
Microsoft to provide technical support and operating system
software.
Further it will enhance Microsoft's ability to require the use
of computers using the Microsoft operating system by children at an
early age based on a forced environment rather than based on a
selection of systems having the best overall value.
Ted
MTC-00029079
From: Bruce Bernott
To: Microsoft ATR
Date: 1/28/02 8:33pm
Subject: help consumers, stop persecuting a productive US company
Dear Sirs:
I am writing in support of the Microsoft positions in the
Justice Department lawsuits.
I have been a professional programmer for 37 years. Microsoft
has done the most of any software provider to lower the costs of
useful software for consumers. There is just no honest refutation of
this fact.
I have personally seen $12,000 price tags on developer's
toolsets for Sun Microsystems Solaris operating systems, at the same
time as Microsoft charged less than $2,000 for a toolset that
included not only a comparable developer's tool, but also a complete
database system.
I urge the Justice Department to settle or drop its suits
against Microsoft as soon as possible, for the benefit of us
consumers. Antitrust laws written to stop abuse of fixed land-based
distribution of commodities like power, telephone service, and fuel
just do not make sense for software which is easily distributed.
Regards,
Bruce A. Bernott
CC:Faye Bourret
MTC-00029080
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:33pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Ashcroft:
As a small business owner, I strive everyday to accomplish what
Microsoft has in the past fifteen years. I have never agreed with
the government's pursuit of Microsoft for its successes. I am
satisfied that this settlement will bring the lawsuit to an end.
This settlement, and its several provisions satisfy Microsoft's,
the American IT industry's, the government's and most importantly,
the American public's interest in this matter. The agreement creates
a non-hostile competitive environment for other companies besides
Microsoft and fosters innovation by requiring Microsoft to make
available its intellectual property and source code on reasonable,
non-discriminatory terms.
This agreement is the product of three years and three months of
a judicial debacle and this should be the end of it. I strongly urge
your office to accept this settlement and take no further federal
action.
Thank you.
Sincerely,
Danny Fischer
608 Barrington Place
Matthews, NC 28105
MTC-00029081
From: Don G. Primeau
To: Microsoft Settlement
Date: 1/28/02 8:26pm
Subject: Microsoft Settlement
Don G. Primeau
8200 Greeley Blvd
Springfield, VA 22152-;3043
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Don G. Primeau
MTC-00029082
From: gfda ghgf
To: Microsoft ATR
Date: 1/28/02 8:35pm
Subject: Microsoft settlement
Dear DOJ,
I am a retired accountant that has consulted with over a hundred
companies in my carrier. I have set up computer systems for a
majority of these companies working with all the different platforms
of their day. To make this brief I believe that Microsoft has its
market share not by a monopoly but because they are the best. ANY
restrictions
[[Page 28508]]
on them would only be used by the competition to make our computer
world move to mediocrity. I would encourage you for the sake of this
Great Nation to end this nonsense as soon as possible.
Keith Vrede
MTC-00029083
From: Dr. Andrew E. Mossberg
To: Microsoft ATR
Date: 1/28/02 9:36pm
Subject: Microsoft Settlement
Reply requested by 9/24/01
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Ms. Hesse,
Under the Tunney Act, I wish to comment on the proposed
Microsoft settlement. I agree with the problems identified in Dan
Kegel's analysis (on the Web at http://www.kegel.com/remedy/
remedy2.html), namely:
1. The PFJ doesn't take into account Windows-compatible
competing operating systems
2. The PFJ Contains Misleading and Overly Narrow Definitions and
Provisions
3. The PFJ Fails to Prohibit Anticompetitive License Terms
currently used by Microsoft
4. The PFJ Fails to Prohibit Intentional Incompatibilities
Historically Used by Microsoft
5. The PFJ Fails to Prohibit Anticompetitive Practices Towards
OEMs system.
6. The PFJ as currently written appears to lack an effective
enforcement mechanism.
I also agree with the conclusion reached by that document,
namely that the Proposed Final Judgment, as written, allows and
encourages significant anticompetitive practices to continue, would
delay the emergence of competing Windows-compatible operating
systems, and is therefore not in the public interest. It should not
be adopted without substantial revision to address these problems.
Sincerely,
Dr. Andrew E. Mossberg,
President, Inicom, Inc.
CTO, Asoki Corporation
CIO, CruisExcursions.Com, Inc
Director, Institute of Maya Studies, Inc.
Dr. Andrew Mossberg
Inicom, Inc.--;www.inicom.com
cell: (305) 724-;5675
MTC-00029084
From: Helen Lydic
To: Microsoft Settlement
Date: 1/28/02 8:31pm
Subject: Microsoft Settlement
Helen Lydic
264 Haskell Rd.
Coudersport, PA 16915-;7945
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Helen F. Lydic
MTC-00029085
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:35pm
Subject: Microsoft Settlement
Please settle Microsoft suit.
Robert A Childs at [email protected]
CC:[email protected]@
inetgw
MTC-00029087
From: Maynard Sipe
To: Microsoft ATR
Date: 1/28/02 8:37pm
Subject: Microsoft Settlement
The Microsoft settlement proposed by the Dept. of Justice is
totally unacceptable and should be rejected by the court. It does
not go far enough in any of its provisions. It allows Microsoft too
much room for self-determination over whether it is meeting terms of
the agreement, it fails to sever the link between pre-market loading
of Microsoft's OS and it's Internet Explorer web-browser, and it
does not take any affirmative-action type steps to reestablish some
competitiveness in the marketplace which is essential.
It is clear that innovative companies with products far superior
to Microsoft's have been driven out of business or had their share
of the market reduced significantly by Microsoft's uncompetitive
practices. The obvious example is Netscape. Because Microsoft could
spend almost limitless funds developing Internet Explorer and then
induce PC manufacturers to carry Internet Explorer, they were able
to practically destroy Netscapes market share. This would not have
been possible without the use of unfair and anti-competitive
business practices.
Another example is Be. The BeOS was superior in almost every way
to Windows, but Microsoft used their market strength to effectively
prohibit PC manufacturers from even offering BeOS as an option.
Worse yet, Microsoft is continually attempting to further its
monopolistic position by asserting dominance over the internet by
using standards in its software not compatible with open standards
(HTML, SHTML, Java, etc. Web sites must support the Microsoft
applications. Since other companies do not presently have the means
to compete with Microsoft, allowing Microsoft to continue to do this
threatens to give undue control over the internet to Microsoft. This
is extremely serious for the nation's welfare and that of almost all
private businesses and industries.
The fact that Microsoft acts in violation of anti-monopoly laws
has been established. The proposed settlement etween the Dept. of
Justice and Microsoft is patently against the public interest and
should not be accepted by the court. No settlement will be effective
unless it completely severs any link whatsoever between packaging
and distribution of Windows OS and Internet Browser; requires dual-
boot OS on ALL pcs marketed with Microsoft OS; and applies
affirmative obligations on Microsoft to remedy its past actions.
(Such as requiring Microsoft to make the necessary proprietary codes
fully available to competitors such as Netscape).
The best remedy would be a break-up of Microsoft into three
separate companies. Failing that, any remedy should have proactive
measures to restore competitive balance in software markets,
particularly for web-browsers (such as requiring dual-boot on all
pcs marketing with Microsoft OS); bar Microsoft from packaging its
web-browser with its OS; and provide for continued oversight by the
Dept. of Justice or better yet, the court.
Thank you for considering my comments,
- Maynard Sipe
MTC-00029088
From: arosenbach@inter-
linc.net@inetgw
To: Microsoft ATR
Date: 1/28/02 8:36pm
Subject: Microsoft Settlement
January 24,2002
Attorney General John Ashcroft
US Dept of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530-;000l
Dear Mr. Ashcroft,
I am writing to you in support of Microsoft and the settlement
recently reached in the anti-trust case.
With microsoft agreeing to allow competition from both computer
makers and software developers, there is no further reason to pursue
legal action against them.
If the lawsuit is allowed to continue, despite the concessions
granted by Micro-soft, then it shall prove that the lawsuit had more
to do with jealousy than justice.
I support Microsoft and do not wish to see the company divided
into separate companies (Baby Softs?)
Sincerely,
Carole Rosenbach
MTC-00029089
From: Lee Berger
[[Page 28509]]
To: Microsoft ATR
Date: 1/28/02 8:39pm
Subject: Microsoft Settlement
I wish to express my support for Microsoft and my disgust and
disappointment in a government that seeks to punish a successful
business for its very success.
Microsoft undertook to make the benefits of the computer and
internet available to the average citizen. This was good for the
buyer, who 10 years before could not have afforded to own such a
system, and it was good for Microsoft, who generated a larger
customer base. Historically, this is the way the world has benefited
from new inventions and novel applications (the Model T Ford, for
example). Someone finds a way to make the new invention inexpensive
enough for the average man, who snaps it up eagerly.
The excitement when Windows 95 was launched demonstrated this
eagerness to enhances one's life. Windows has streamlined and
enriched my own life immeasurably. I freely made this choice and
will continue to control what I put on my computer. Microsoft (or
any other company) has the right to offer its wares and the rest of
us, to purchase them or not.
There has been no damage to consumers. We have received a boon!
We each freely chose to buy these products for our own reasons. In a
free society, the sight of one person's success should inspire a
redoubling of effort on the part of every other worker, not envy and
a wish to destroy the innovator. Our Constitution guarantees
protection of our property rights. Where is the protection for
Microsoft? Can any of us feel confidence in our government in the
face of such a blatant misuse of power? I do not wish to live in a
country that penalizes our best minds. It is time for us to wake up
and recognize the uniqueness of our Constitution and the superb
moral mechanism of the free market system.
Leora K. Berger
2014 Browning Avenue South
Salem, Oregon 97302
MTC-00029090
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 8:40pm
Subject: Microsoft Settlement
I only wanted to add one wee voice to the heavyweight voices
already writing you. Please work to have the Windows Operating
System separated from the applications side. I don't need Office
ported to Linux or any such silliness but having the operating
system so strongly biased toward in-house applications seems to be
the root of the many problems. It is unfathomable to me that I had
to give up using Netscape (which I was more familiar with and
preferred) because the owner of the OS wants me to use Internet
Explorer. I am only an average PC user but I can remove most
programs from my computer without mishap except Outlook Express or
Internet Explorer. Removing either of these causes the machine to
develop serious operating problems. This is wrong. Where will it
end? By having Windows will I eventually be required to discard
other programs when Microsoft decides to enter a new market?
I personally really like the idea of separating into two
companies--;OS and applications. It seems there is enough demand
to keep two companies healthy and thriving. I believe that we would
even see real advances in OS rather than the superficial changes
brought about by many ``new'' versions of Windows. If the
OS company were truly separated we wouldn't see programs like
Outlook having freedom to couple so closely; hence, some of the
horrendous security problems would be overcome. Applications like
IE, Outlook and Office should need to work with the operating system
through the same interface as non-Microsoft programs.
I know you must get tons of email so let me boil it down to
``No favoritism for in-house products''.
Thank you for your time.
Earlene Bryan
MTC-00029091
From: Jerry D. Snead
To: Microsoft ATR
Date: 1/28/02 8:39pm
Subject: Microsoft Settlement
Sirs:
Please allow the proposed settlement reached by the Justice
Department and Microsoft to be the final act of this farcical suit.
The Attorneys General of these states that wish to continue the
harassment of Microsoft for their small groups of constituents
should not be afforded any more time or monies. Stop these
proceedings NOW!
Microsoft has brought a tolerable environment to personal
computing, one that did not exist until there was a market force as
large as Microsoft to enforce de facto standards. Without these
standards, personal computing would be only a small fraction of the
pervasiveness it enjoys today. Get off Microsoft's back, and let the
consumers reap the benefits of stable, standardized computing
environments. Perhaps then the technical sectors of our economy will
return to their previous stature.
Thank you for considering this opinion.
Jerry Snead
MTC-00029092
From: Billy Parker
To: Microsoft Settlement
Date: 1/28/02 8:37pm
Subject: Microsoft Settlement
Billy Parker
39542 Chappellet Cir.
Murrieta, CA 92563-;4853
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Billy M. Parker
MTC-00029093
From: schinnell1 password
To: Microsoft ATR
Date: 1/28/02 8:43pm
Subject: USAGSchinnell--;Debbie--;1048--;0108
Debbie Schinnell
117 Northridge Drive
Centralia, WA 98531
January 11, 2002
Attorney General John Ashcroft
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing you today to voice my opinion in regards to the
Microsoft settlement that was reached in November. This issue has
worn out its welcome, and it is time to resolve this issue
permanently. The settlement is a decent and realistic alternative to
another three years of litigation, and it provides the benefits that
Microsoft's competitors feel they need to compete. That is why I
support this settlement, and I sincerely hope there will be no
further action against Microsoft at the federal level.
Among other things, the settlement gives software companies like
Sun the protocols and interfaces to redesign their products to run
more efficiently on the Windows operating system. Microsoft is
literally giving away the sorts of codes that made them known all
over the world. Moreover, hardware companies will be able to
reconfigure Windows after they receive their licensing agreements,
and Microsoft cannot prevent them from changing the
``desktop'' software or cannot take any retaliatory
action, so consumers will ultimately dictate what sort of software
they will want on their computers before the computer is sent. This
settlement does something for everybody interested.
Microsoft is a company that has done so much to impact our
society and the technology industry. Microsoft has made it easier
for the average consumer to afford and use software, which in turn
has made it easier to conduct business. This company should not be
stifled or restricted for following the American Dream. Please
support this settlement and work in the best interest of the public.
[[Page 28510]]
Sincerely,
Debbie Schinnell
MTC-00029094
From: Fr. Ray Ryland
To: Microsoft ATR
Date: 1/28/02 8:43pm
Subject: Microsoft Settlement
I urge the Department of Justice to proceed with its projected
settlement with Microsoft in the anti-trust action brought agaisnt
Microsoft. It's high time to let Microsoft get back to its business
of serving the world with its outstanding products.
Ray Ryland
900 Granard Parkway
Steubenville, OH 43952
(740) 282-;3009
MTC-00029095
From: Marcia Jones
To: Microsoft Settlement
Date: 1/28/02 8:36pm
Subject: Microsoft Settlement
Marcia Jones
125 Hildreth Rd
Hot Springs, AR 71913
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayer's dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Marcia Jones
MTC-00029096
From: L. A.
To: Microsoft ATR
Date: 1/28/02 8:42pm
Subject: Microsoft Trials
Renata Hesse, Trial Attorney
1/28/02
Suite 1200, Antitrust Division
Department of Justice
601 D Street NW
Washington, DC 20530
Dear Renata Hesse,
Fearing my letter might not reach you in time I decided it might
be wise to send an email.
I appreciate this opportunity to speak out, regarding Microsoft.
For me, the domination of Microsoft in the software industry has
been a disaster. I consider myself an above average computer user,
and yet I could not sufficiently combat the tide of instability
caused by the poorly written software developed by Microsoft. I have
lost countless hours to troubleshooting crashes caused by the
companys products. Worst of this breed of overwrought catastrophes
is Internet Explorer. Not a day would go by without this application
bringing my entire system to a screeching halt. I often wonder what
the face of the industry would be had the company not been able to
use their monopoly power on the OEMs to muscle Netscape and other
competitors out of the picture. A bully is still a bully, at any
age. I shudder to think of the consequences of raising a new
generations of kids to rely on inferior tools in their own schools,
thanks to the marketshare being handed to Microsoft by their own
proposed Seattlement. There is just too much complacency, too much
power, and too little brains going into the products at Microsoft
for the company to justify the monopoly its established by its
frequent use of political leverage and scare tactics. But beyond my
own animosity for the company, there is a genuine and immediate need
for changes in the balance of power in the technology industry. In
my opinion, the answerthe only answeris intervention on the part of
a higher authority to remove the advantage that has trapped the
computing populous in a seemingly endless cycle of unintended brand
loyalty.
Thank you for taking the time to read this.
Sincerely.
Laura A. Caigoy
6439 Valmont Street
Tujunga, CA 91042
email: [email protected]
MTC-00029097
From: Bill Seward
To: Microsoft ATR
Date: 1/28/02 8:44pm
Subject: proposed Microsoft settlement
Dear Sir or Madame:
I would like to request that you revisit your proposed
settlement with Micrsoft on the question of penalties for their
behavior. Recent actions by Microsoft (their new licensing
``agreement'' and their Product Activation) seem to be
more of the ``same old, same old''.
While I do not think a breakup of the corporation is called for,
I do beleive that it will require far more stringent measures to
reform Microsoft. Their well-document corportate culture is one of
``win at all costs'', and part of the cost has been a
marketplace with true alternatives to their products. While there
are Unix, the Apple Macintosh and the Open Source movement groups,
the fact is that Microsoft operating systems are on over 50% of the
servers and over 90% of the desktops in the US. Their browser and
various office automation products control similarly extreme shares.
While I am a free market supporter to the point of Libertarianism,
this is not the sign of a healthy market. It is the sign of a market
that has been skewed by the power and money that Microsoft controls.
From my point of view as a network administrator and IT manager,
Microsoft is the embodiment of the old ``800 pound
gorilla'' joke.
Please come up with a settlement with some teeth, or we will be
doomed to travel this same road again in the future.
Bill Seward
MTC-00029098
From: Joyce Smith
To: Microsoft ATR
Date: 1/28/02 8:45pm
Subject: Microsoft settlement
Dear Mr. Ashcroft:
With a potential settlement in the Microsoft case, I wanted to
voice my position of support on ending further litigation by
completing the deal. The antitrust lawsuit was misguided from the
start,caused by rivals who only have themselves to blame for their
lack of headway in the industry. The growing pattern of government
intervention in the business community was evident with the tobacco
lawsuit, where states joined a giant money-grab because they dont
like the results of people's individual choices. This time, people
have made the choice of Microsoft as their preferred software maker
and delivered them with a dominant market share, so the government
sees an opportunity to make money by punishing a company in the name
of competition. The deal offers computer makers oopen access to
selecting the software providers of their choice and will be
constantly monitored by a group of experts, so Microsoft's rivals
should declare this a victory and start creating products that
consumers want.
I ask that you go ahead with this proposal and let Microsoft
continue to be a strong advocate for innovation in the PC industry,
as our economy and financial markets coujld definitely use the
boost. It is time to leave government on the sideline and let the
litigation be ended. Thank you for hearing my feedback.
Sincerely.
Joyce Smith
MTC-00029099
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 8:45pm
Subject: ZMM: Fwd: Attorney General John Ashcroft Letter
MTC-00029100
From: Raymond Best
To: Microsoft Settlement
Date: 1/28/02 8:40pm
Subject: Microsoft Settlement
Raymond Best
2364 W. Charteroak Dr.
Prescott, AZ 86305
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
[[Page 28511]]
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Raymond Best
MTC-00029101
From: Kim (038) Jay
To: Microsoft ATR
Date: 1/28/02 8:45pm
Subject: Microsoft Settlement
Kim Ogden
12884 Hamilton Place Drive
Fort Mill, South Carolina 29708
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you in support of Microsoft's antitrust settlement
with the federal government. They have spared us the taxpayer of a
lengthy and costly legal battle.
This settlement is very reasonable. Microsoft agreed that if any
third party's exercise of any options provided for by the settlement
would infringe any Microsoft intellectual property right, Microsoft
will provide the third party with a license to the necessary
intellectual property on reasonable terms. Also, the settlement
establishes an oversight committee to monitor its compliance with
the settlement and assist with dispute resolution. Additionally,
Microsoft has agreed not to retaliate against software and hardware
developers who develop or promote software that competes with
Windows or that runs on software that competes with Windows.
Microsoft has and will continue to be a good corporate citizen.
I think this settlement shows that the consumer interest has been
addressed. I urge you to approve this settlement, so Microsoft can
get back to work.
Sincerely,
Kim E. Ogden
cc: Senator Strom Thurmond
CC:[email protected]@inetgw
MTC-00029102
From: Austin Gonyou
To: Microsoft ATR
Date: 1/28/02 8:47pm
Subject: Please be more stringent on Microsoft.
Please be more stringent on Microsoft. They need to inter-
operate with the rest of the world, not vice versa. Any judgement
which is passed that, in any way, allows Microsoft to expand it's
grasp of the desktop, server, embedded, or other markets, I would
consider a mis-carriage of the law.
The main reason I'd feel that way is because Microsoft has been
anti-competitive for far too long. They have stifled the creativity
of individuals, development communities, and other corporations.
That in itself, since they have been found guilty of in fact being
anti-competitive --;and--; being a monopoly, warrants harsh
punishment that should reflect in the following ways:
1. Monetarily--;Micorosft Corp.'s bottom line.
2. Opened Sources without fear of:
a. forced compensation to MS under penalty of law.
b. lack of future products not being inter-operable with older
products, from MS, after sources have been opened.
3. Shame--;MS has no shame, and they should. Imagine the
following:
a. If your car broke down as often as windows, you'd be upset.
b. If an airplane ran on ``Windows(tm)'' alone.
c. If you woke up and everything you owned was in fact owned,
operated, and distributed by a single company.
4. Not only Opened Sources, but licensing which accepts
liability, and possibly damages, for the company's lack of integrity
due to it's poorly designed software and practices.
Thank you for your time.
Austin Gonyou
Systems Architect, CCNA
Coremetrics, Inc.
Phone: 512-;698-;7250
email: [email protected]
MTC-00029103
From: marcia cooperman
To: Microsoft Settlement
Date: 1/28/02 8:43pm
Subject: Microsoft Settlement
marcia cooperman
1563 se bidwell
portland, or 97202
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Marcia A. Cooperman
MTC-00029104
From: Carol Olyer
To: Microsoft Settlement
Date: 1/28/02 8:42pm
Subject: Microsoft Settlement
Carol Olyer
2814 Brookwood Rd.
Orange Park, Fl 32073
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayer's dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Carol W Olyer
MTC-00029105
From: Ed Smith
To: Microsoft Settlement
Date: 1/28/02 8:43pm
Subject: Microsoft Settlement
Ed Smith
130 Somerset Drive
Brooklyn, MI 49230
[[Page 28512]]
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ed Smith
MTC-00029106
From: Floura, Ranvir
To: Microsoft ATR
Date: 1/28/02 4:35pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to voice my opinion on the settlement between
Microsoft and the Department of Justice. I don't see how this case
has benefited anyone. Microsoft has run a successful business and
contributed a great deal to our society. Why is the government
wasting our money punishing a company for fulfilling the American
dream?
I am a Network Engineer and use a variety of software products
in my job. I obviously use Microsoft, but I also use their
competitors'' products and have never had any problems in doing
so. It is not Microsoft's fault that their competitors couldn't
create products that were equal or better. There is a reason that
consumers have repeatedly chosen Microsoft's products over other
companies''.
Nonetheless, the proposed settlement is a very reasonable
agreement that could end this pointless lawsuit. Although Microsoft
is giving up way more than should be expected, the settlement would
certainly bring on stronger competition in the computer industry.
Microsoft is giving away their source codes and server protocols
that are integral to the technology they've taken years to create.
This will make it easier for competition server systems to
interoperate with the Windows operating systems and Microsoft server
systems.
Please accept this settlement for the benefit of our struggling
economy. The computer industry contributes so much to the economy.
Upholding this settlement will strengthen the entire computer
industry and will be a benefit to consumers.
Sincerely,
Ranvir Floura
MTC-00029107
From: fremontsmith
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 8:51pm
Subject: Microsoft Settlement
I believe the settlement proposed by the DOJ has more the feel
of a Microsoft promotional document than a serious attempt to
prevent Microsoft from further abusing its monopoly. I feel it is
completely inadequate to protect other markets from the same abuse
that Microsoft placed upon the web browsers. I feel it does little
or nothing to keep Microsoft from continuing to enjoy the benefits
of past abuses. I cannot believe that the very limited enforcement
possibilities included in this agreement will have any hope of
materially changing the behavior of Microsoft. Microsoft has ignored
or broken many agreements in the past. I would fully expect
Microsoft to interpret this agreement as allowing them to do
practically anything they wanted to do. I am particularly dismayed
by the inclusion of clauses that would allow Microsoft to use
security as a pretext to withhold API information, or to prevent
OEM's from unbundling Microsoft middleware. I certainly do not feel
accepting this agreement would be in the best interest of the
general public.
Sincerely,
Fremont Smith
Software Engineer
MTC-00029108
From: Christina Weiss
To: Microsoft Settlement
Date: 1/28/02 8:48pm
Subject: Microsoft Settlement
Christina Weiss
1648 Brentwood CT
Plainfield, IN 46168
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Christina Weiss
MTC-00029109
From: Dora Ratliff
To: Microsoft Settlement
Date: 1/28/02 8:48pm
Subject: Microsoft Settlement
Dora Ratliff
663 N Cherry St
Germantown, OH 45327
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dora Ratliff
MTC-00029110
From: Cecil THREADGILL
To: Microsoft Settlement
Date: 1/28/02 8:49pm
Subject: Microsoft Settlement
Cecil THREADGILL
P. O. BoX 1236, 308 E. Main
Pilot Point, TX 76258
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
[[Page 28513]]
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Cecil R. THREADGILL
MTC-00029111
From: Arnold Mead
To: Microsoft Settlement
Date: 1/28/02 8:49pm
Subject: Microsoft Settlement
Arnold Mead
R. R. # 5 Box 5449--;C
Moscow, PA 18444
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Arnold Mead
MTC-00029112
From: Joy Hiner
To: Microsoft Settlement
Date: 1/28/02 8:47pm
Subject: Microsoft Settlement
Joy Hiner
365 Roxbury Park
Goshen, IN 46526
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joy Hiner
MTC-00029113
From: Warren Smith
To: Microsoft Settlement
Date: 1/28/02 8:47pm
Subject: Microsoft Settlement
Warren Smith
164 Harvard Rd
Watervliet, NY 12189
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Warren L. Smith
MTC-00029114
From: John Spilker
To: Microsoft ATR
Date: 1/28/02 8:56pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Now that the economy is in a recession, with massive layoffs all
over the US, and the NASDAQ is way down with no relief in sight, why
pursue additional litigation with Microsoft? Let the settlement
stand the way it is. It is more than fair for the competition.
Microsoft went out of its way to reach an agreement, beyond what
would be expected in any antitrust case. They agreed to everything
from disclosing various internal interfaces to making it easier for
computer companies, consumers and software developers to promote
their software within Windows. I do not know a lot of software
companies that would risk their proprietary information and their
business, unless they really wanted to settle their antitrust court
cases.
Let's get our economy back in shape and quit running after
Microsoft.
Thanks for your attention to this matter.
Sincerely,
John Spilker
MTC-00029115
From: Jim/Marcia Bennett
To: Microsoft ATR
Date: 1/28/02 8:57pm
Subject: Microsoft Settlement
I am writing to express my opposition to the proposed settlement
between the U.S. Department of Justice and Microsoft. This
arrangement would, I firmly believe, let Microsoft off much too
easy. The seriousness of the violations of law, and the clear anti-
competitive effect of Microsoft's practices warrant a
correspondingly severe set of penalties. If the Department of
Justice lacks the will to perservere in reaching a truly just
solution, then I look to the judge who has jurisdiction to make a
properly effective ruling.
[[Page 28514]]
I am writing as a concerned citizen and consumer, who looks
forward to a future where competing technologies can have a chance
to contend on a level playing field, which has not been the case in
some of the markets dominated by or targeted by Microsoft.
Thank you for your consideration.
Sincerely,
James A. Bennett
608 Barret Ave.
Louisville, KY 40204
CC:[email protected]@inetgw
MTC-00029116
From: Richard Brandon
To: Microsoft Settlement
Date: 1/28/02 8:51pm
Subject: Microsoft Settlement
Richard Brandon
8393 W Cloverleaf
Hayden, ID 83835-;7200
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Richard P. Brandon
MTC-00029117
From: Robert Hepburn II
To: Microsoft Settlement
Date: 1/28/02 8:52pm
Subject: Microsoft Settlement
Robert Hepburn II
305 Brookmeade Dr.
Gretna, La 70056
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert J. Hepburn II
MTC-00029118
From: DAVID FEARIS III
To: Microsoft Settlement
Date: 1/28/02 8:51pm
Subject: Microsoft Settlement
DAVID FEARIS III
401 CLARK LANE
WAXAHACHIE, TX 75165
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
DAVID P. FEARIS III, M.D.
MTC-00029119
From: Clif / Helen Shumate
To: Microsoft ATR
Date: 1/28/02 8:58pm
Subject: Microsoft Settlement
2201 Ventnor Court
Arlington, TX 76011
January 14, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
It is with great pleasure that I write to you today regarding
the Microsoft antitrust settlement. After three years of litigation,
the case is finally closed against Microsoft. I believe that the
case was unwarranted to begin with, yet I am pleased to see its end.
Microsoft has made many concessions throughout the process.
Microsoft has agreed to disclose the internal interface designs of
Windows. It has also agreed to license Microsoft at a uniform price
to computer manufacturers. These developments come at great cost to
the Microsoft Corporation. Why is Microsoft willing to do so?
Because it is in everyone's best interest that this matter be
resolved.
Sincerely,
MTC-00029120
From: Shannon Casteel
To: Microsoft Settlement
Date: 1/28/02 8:54pm
Subject: Microsoft Settlement
Shannon Casteel
1902 E.Calle De Arcos
Tempe, Az 85284-;3474
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Shannon Casteel
MTC-00029121
From: Jay
[[Page 28515]]
To: Microsoft ATR
Date: 1/28/02 9:00pm
Subject: Microsoft Settlement
It is time for this to end. I am not a politician, lawyer,
lobbyist, employee of Microsoft, etc. I am just a computer user and
systems engineer who has been involved with the computer industry
for over 30 years and the micro-computer phase since its beginning.
In all those years I have used many varieties of software products,
both Microsoft and non-Microsoft. I was never met by armed Microsoft
police preventing me from purchasing ANY and ALL pieces of software
that I wanted at the time. Through the years, Microsoft has tamed
the wild west that micro-computer systems had become and gave us a
STANDARD that made a significant increase in the productivity of
computer users world wide in general and the United States in
particular. The nine states (plus AOL, ORACLE, SUN, and other
envious competitors of Microsoft) that reject the
DOJ--;Microsoft proposed settlement are creating an unnecessary
burden on computer users and the economy. In my opinion, bring this
to an end.
Jay Zittle
MTC-00029122
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:01pm
Subject: microsoft settlement
The Microsoft settlement should remain in place. One of the most
successful and prosperous businesses in the US should now be
permitted to continue to prosper and innovate for the millions of
consumers that owe their new knowledge and way of living to this
great American corporation.The settlement is faair for all parties.
It is not the consumer who is instigating further litigation. Look
to the lawyers and conpeting corporaitions wanting to increase their
own fortunes with less effort or innovation.
Hope you take this small voice into consideration.
MTC-00029123
From: David Thum
To: Microsoft ATR
Date: 1/28/02 9:02pm
Subject: Microsoft
I am writing to express my utter feelings of shame at the way
our government has gone after Microsoft. In times where it seems
capitalism are under attack, it is imperative that it is understood
that the very freedoms we enjoy in this country are what are
responsible for the success companies like Microsoft, J&J, the
big three, Pfizer, McDonald's, and even Flowers.com. I mention
varying types of companies because all had the freedom to dream, to
plan for the dream and to follow through.
Microsoft was the victim of a government body gone mad over the
American dream. Microsoft has no monopoly. If they had a monopoly,
there would be no other way to run a computer than with Microsoft
software. Any body else can develop their own software and market
it. If they succeed, great as that is the American way. If they
fail, it is either through poor design, marketing or product
support, which, in a way, is also the American way. From a
government that has gone mad over tobacco, it is clear that what
speaks is the almighty dollar. If tobacco were so bad, make it
illegal. The government will not do that because there is too much
money in it. Microsoft is being penalized for being successful.
Period.
I am ashamed of the Reno DOJ and the Clinton administration for
their shameful attacks of Microsoft and the way it continues. If
somebody can build a better mousetrap than Microsoft let them. Where
is the incentive to try to build a product people want only to have
it all destroyed because of success? That is NOT the American way.
I implore this entire mess to be dropped, not only for the
continued success of Microsoft (in which I have NO financial
interest, other than possibly a mutual fund which I've not checked),
but also for the future Microsofts of America on the horizon.
David Thum
Avon Lake, OH
MTC-00029124
From: Carol Enright
To: Microsoft Settlement
Date: 1/28/02 8:57pm
Subject: Microsoft Settlement
Carol Enright
837 12th ave
Port Arthur, Tx 77642
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Carol Enright
MTC-00029125
From: Lance Robertson
To: Microsoft Settlement
Date: 1/28/02 8:58pm
Subject: Microsoft Settlement
Lance Robertson
626 Springfield Circle
Roseville, CA 95678
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief. Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Lance Robertson
MTC-00029126
From: Neal Dalton
To: Microsoft ATR
Date: 1/28/02 9:05pm
Subject: Microsoft Settlement
I do not feel the settlement UNITED STATES OF AMERICA vs.
MICROSOFT CORPORATION is a fair one. Over the year Microsoft has
settle their disputes only to begin encroaching on the same area
there agreed not to do. Even now Microsoft is eating up parts of the
market, muscling out the competition by the market power they have
as the provider of the OS. Other parts allow for access to Microsoft
internal, but only for those who won't disclose them. The open
source world (their primary competitor) would not benefit from this
agreement. They would have no access to the internal, because the
writing of their application to interoperate with Microsoft code
would be a violation. So to would people who derive their income
from supporting open source be crippled by this ruling.
I would like to see Microsoft force to publish the APIs/
internal, so that they can not restrict their competition. I believe
also that Microsoft's power as a OS and application leader (which
they gained illegally) is too great a power for a company that has a
history and continues to use strong arm tactics to crush their
completion. Thus putting small businesses and other completion at
risk.
Neal
[[Page 28516]]
MTC-00029127
From: SaraConrad
To: Microsoft ATR
Date: 1/28/02 9:04pm
Subject: Attn: Renata Hesse--;Trial Attorney
ATTENTION--;THE FOLLOWING EMAIL IS FROM A SOCCER MOM WHO
VOTES!!! micro$oft is a monopoly--;plain and simple. When you go
to buy a computer you have no choice what operating system you get
on your computer even though there are others (that work better)
Linux, Solaris.
You have no choice but to use microsoft products, internet
exploder, they have pretty much wiped netscape out. And the scary,
scary thing is the future. People who are as technically savvy as I
are going to be registering with microsoft and their
``passport'' program. This will track everything this
unsuspecting people do on the web. And as far as microsoft saying
they will donate stuff to schools, that is just another way for them
to hook kids! My children use Apples, Unix and windows.. Unix is not
platform specific. They use shared code. All games, all software
should be able to be used on any computer regardless of the
operating system. Micro$oft doesn't allow this. They say--;use
us or don't use the others. This is wrong, wrong, wrong. You people
have a very important decision in front of you. Do the research,
don't rely on what microsoft tells you (even if they offer to pay
you), find out what it is like with Solaris, Apple X, Red hat...
don't let microsoft own everything. Let the people have a choice,
even if they don't know the difference between a keyboard and a
mouse...This country is about choice and right now, we don't have
one as far as Operating Systems are concerned. Check into the claims
that microsoft is tracking peoples'' usage. It is a well known
fact in the IT business that they keep tabs on who is running their
software, what they do online and where they go. Can you say,
``invasion of privacy''???
Don't take my word for it...and don't roll over for them. Thank
you for doing the right thing.
Sincerely,
Sara D. Conrad
2310 Glenwood Drive
Boulder, CO 80304
303-;444-;5357
[email protected]
Technical support engineer/girrrl geek
MTC-00029128
From: Don Wegeng
To: Microsoft ATR
Date: 1/28/02 9:05pm
Subject: Microsoft Settlement Comment
I appreciate the opportunity to comment on the proposed
settlement. I oppose the proposed settlement for two reasons:
1) It provides no controls that will prevent Microsoft from
engaging in illegal business practices in areas that are beyond the
original charges. The computer software and Internet industries have
changes quite a bit since the original antitrust case was filed, and
Microsoft is clearly changing it's business plans to engage these
new business opportunities. Will the proposed settlement provide any
means to control Microsoft's business practices in these new areas?
No. This is a major flaw in the proposed settlement.
2) The proposed settlement assumes a business model where all of
Microsoft's ``competition'' comes from for-profit
businesses. However, in reality Microsoft is being threatened by the
developers of the Linux operating system and other open source
programs. The proposed settlement does not recognize these open
source projects as competitors, and provides no requirement for
Microsoft to disclose technical information to the developers of
these open source projects. This, again, is a major flaw in the
proposed settlement.
I appreciate your consideration of these comments.
Donald L. Wegeng
Fairport, NY
MTC-00029129
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 9:05pm
Subject: Microsoft Settlement
I would like to go on record as stating that I believe Microsoft
should be severely punished for its anti-competitive activities. A
break up of the company into separate groups seemed most
appropriate. The remedy worked out between MS & DOJ is totally
inadequate, and in fact rewards MS by allowing them to write off
hardware & software ``donated'' to schools as a
remedy. Most elementary schools use Apples or Macintosh products.
Rather than eliminating monopolistic behavior, it will literally put
Apple out of business in favor of ``free'' PCs &
Microsoft software.
Further, schools that receive this ``gift'' will end
up paying exorbitant amounts on subscription and maintenance fees
after the ``remedy'' period is over. This is a travesty.
The company has not changed. It's licensing costs are sky-rocketing,
and customers have lost any ability to retrieve any damages due to
defective software released by MS. I have used their products for
almost 20 years now. In my opinion, they are out of control, and
only the strongest of remedies, i.e. breakup of the firm, will stop
their deceitful, predatory business practices.
MTC-00029130
From: Irene DeMpss
To: Microsoft Settlement
Date: 1/28/02 8:59pm
Subject: Microsoft Settlement
Irene DeMpss
3320 Parksie Drive
San Bernardino, Ca 92404-;2408
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Irene DeMpss
MTC-00029131
From: Americo A. Fusco
To: Microsoft Settlement
Date: 1/28/02 8:59pm
Subject: Microsoft Settlement
Americo A. Fusco
39535 Hood Street
Sandy, OR 97055-;8403
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Mr. & Mrs. Americo A. Fusco
MTC-00029132
From: Bruce Radebaugh
To: Microsoft Settlement
Date: 1/28/02 9:00pm
Subject: Microsoft Settlement
Bruce Radebaugh
[[Page 28517]]
178 Fern Avenue
Collingswood, NJ 08108-;1938
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Bruce R. Radebaugh
MTC-00029133
From: Roy Simmons
To: Microsoft Settlement
Date: 1/28/02 8:59pm
Subject: Microsoft Settlement
Roy Simmons
17647 Inwood Lane
Neosho , Mo 64850
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief. Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Roy Simmons
MTC-00029135
From: MSJC
To: Microsoft ATR
Date: 1/28/02 9:08pm
Subject: Microsoft Settlement
Renata B. Hesse,
The Microsoft settlement should be completed. The government had
no business in trying to break up Microsoft in the first place. Our
entire capitalistic system is supposed to reward those that come up
with a better mouse trap, and if they do, they should reap the
rewards for their hard work and creative ideas.
Regards,
Mark E. Sitterle
MTC-00029136
From: bfriedman(a)excite. co m
To: Microsoft ATR
Date: 1/28/02 9:07pm
Subject: MICROSOFT SETTLEMENT
I am a computer programmer and instructor at a community
college.
I resent the way that Microsoft has conducted itself with regard
to the antitrust settlement. This company continues to disregard
this country's laws, and should receive appropriate penalties.
Their ``settlement proposal'' to donate software to
schools is ludicrous. A piece of software with a retail price of
$600 or more costs about $10 in packaging and materials. Microsoft
proposes to spend a few million dollars (in real cost), donate this
to schools, and then not support the hardware or software in the
future. (Thus creating future licensing fees for itself in the
future from the same schools.)
The computer industry in general has shown much more good will
to the US than many others. In the past, many computer scientists
shared information, algorithms, etc., in the hope of advancing the
art and technology. Microsoft has dominated an industry, and uses
that position as a bully pulpit. They are destroying the previous
trends of goodwill within the computing industry.
I do not think that the people in Redmond should be let off with
a slap on the wrist. As a corporation, Microsoft should be penalized
for their monopolistic and illegal practices. And personally, I do
not feel that their proposed gift to schools comes close to being an
appropriate punishment for misconduct.
Sincerely,
Brent A. Friedman
P O Box 13145
Minneapolis, MN 55414
of I
01/30/2002 2:38 I
7
MTC-00029137
From: Joseph Minnie
To: Microsoft ATR
Date: 1/28/02 9:07pm
Subject: Microsoft Settlement
Joseph S. Minnie
P.O. Box 642
Brooksville, Fl. 34605
January 19, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am greatly pleased to hear that a proposed settlement has been
reached in the Microsoft antitrust case.
This case has endured for over three years and should be brought
to quick finalization. Microsoft has agreed to all terms of this
proposed settlement and they have agreed to design future versions
of Windows to allow competitors to easily attach their software
products. Additionally, Microsoft will use a uniform pricing list
when licensing Windows out to the twenty largest computer companies
in the United States. Microsoft has also agreed to allow their
progress toward compliance with all provisions to be monitored.
As the terms of this agreement far exceed the issues originally
raised in the suit over three years ago, I feel the case should be
closed soon. Thank you.
Sincerely,
Joseph S. Minnie
Joseph Minnie
MTC-00029138
From: Donald Cross
To: Microsoft Settlement
Date: 1/28/02 9:04pm
Subject: Microsoft Settlement
Donald Cross
1239 San Pedro St.
Pittsburgh, PA 15212-;1564
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief. Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies. Thank you for this opportunity to share
my views.
[[Page 28518]]
Sincerely,
Don Cross
MTC-00029139
From: Robert McArtor
To: Microsoft Settlement
Date: 1/28/02 9:04pm
Subject: Microsoft Settlement
Robert McArtor
6430 Princeton Drive
Alexandria, VA 22307-;1347
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
Please allow the Microsoft settlement to stand so we may return
to those days when we truly encouraged enterprise. We have
squandered enough time and money discoraging free enterprise. Thank
you
Sincerely,
Robert C. McArtor
MTC-00029140
From: Shams Kairys
To: Microsoft ATR
Date: 1/28/02 9:11pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
US Dept of Justice
601 D St NW
Suite 1200
Washington, D. C. 20530-;0001
Dear Ms. Hesse,
I am quite concerned that the Department of Justice (DOJ) has
moved to settle with Microsoft (MS) in a manner that leaves
consumers inadequately protected. I have found MS information
technology (IT) stifles outside innovation and inter-operability,
and hope you will provide a resolution of the MS case that maximizes
competition and consumer in the best public interest.
Minimally, I believe that Windows applications should run on
other operating systems without modification; should be transparent
to other software, so that it would be able to exchange files, data,
and services with any MS product; should be able to run properly on
computers with different microprocessors. Otherwise, consumers will
continue to face unnecessary costs, limited choices, operational
complexity, and reliability problems. Enforcement provisions in the
proposed settlement are also inadequate and could very well allow MS
to continue to stifle competition, creativity, and cost-
effectiveness. I urge the DOJ to announce public proceedings at the
earliest opportunity as provided by the Tunney Act so that concerned
consumers can speak to these issues.
Sincerely,
Shams Kairys
Executive Director, Berkeley EcoHouse
507 Cornell Ave.
Albany, CA 94706
510-;525-;1465
MTC-00029141
From: DRhoads
To: Microsoft ATR
Date: 1/28/02 9:11pm
Subject: Microsoft Settlement
Final Judgment for a variety of reasons. I shall briefly expound
on but a few of them:
1) The potential breakup of Microsoft should be maintained as a
future remedy to insure Microsoft's compliance.
2) Lack of punitive damages. Lacking provisions for an evolving
industry, the Proposal seems focused on limited measures for a
future that is only a simple extrapolation of yesterday's market.
There are no penalties for Microsoft's outrageous conduct in the
marketplace and before the Court. This sends the wrong message to
anyone considering similar behaviour.
3) The Termination of the Decree should NOT occur before ten
(10) years from date of entry. Further, the length of any extension
should be five (5) years, rather than two. Given that the present
proceedings before the Court have consumed almost four (4) years
with no action, it is not inconceivable that Microsoft could
similarly delay and obstruct a three person panel for the proposed
five (5) years.
4) The construction of the Technical Committee (hereafter, TC)
is faulty. Potentially, two of the three members of the TC will be
answerable only to Microsoft and not to the Plaintiffs. This
provides a majority which could veto any action or decision of the
TC. The TC should consist of a minimum of five (5) persons, none of
whom is appointed by Microsoft. The Defendant's interests could be
represented by a non-voting, non-directing liaison to the TC. Also,
the TC should be composed of persons with significant experience as
auditors or inspectors general, who will be assisted by software
experts.
5) MOST IMPORTANT. According to Section IV.D.4.d of the
Stipulation, no member of the TC may direct any findings to any
other tribunal. This is UNACCEPTABLE! The Congress, other Courts and
other States cannot be constrained by this Proposal in any of their
future proceedings. In particular, this Section would disallow a
member of the TC from informing authorities of a violation of law,
including, but not limited to, the Sherman Act.
The Proposed Final Judgment is seriously flawed and should be
withdrawn from consideration. DOJ should rejoin with Utah, et al and
use their proposals as a starting point for further negotiations.
Sincerely,
David Rhoads
Fort Washington, Maryland
MTC-00029142
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:11pm
Subject: proposed monopoly settlement inadequate
The current proposed Microsoft monopoly settle does a completely
inadequate job of protecting consumers from future abuses by
Microsoft. In particular,
* Open source and free software concerns are ignored; which will
allow MS to tighten its software monopoly by licensing it to public
institutions.
* Microsoft is not required to open up the details of its file
formats, which harms interoperability with other software and thus
prevents competitors from getting a toehold into markets that
Microsoft already monopolizes.
* Nothing prevents Microsoft from retaliating against OEMs that
ship PCs with a competing OS (but not Windows). Please do not accept
the existing settlement proposal.
Thanks,
Dan Mosedale
MTC-00029143
From: Stephen Patterson
To: Microsoft Settlement
Date: 1/28/02 9:05pm
Subject: Microsoft Settlement
Stephen Patterson
21959 C. R. 254
West Lafayette, Oh 43845
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Stephen L. Patterson
MTC-00029144
From: cyberkristie
To: Microsoft ATR
Date: 1/28/02 9:13pm
Subject: Microsoft Settlement
Ok, enough is enough, let's move on and accept the settlement
with Microsoft. Then go after someone that is really in total
control and unfairly taking advantage of the consumers. The Cable
companies! It's just plain usury what the cable companies charge for
what they provide and now they are doing the same with the cable
internet access. If it weren't for Bill Gates and Microsoft we
wouldn't be communicating by email because most of us couldn't
afford to own a computer much less have the software to use it to
it's full advantage. I've been
[[Page 28519]]
around since mainframes were the only thing and pc's weren't even in
the realm of home use. Gates made it all affordable and even today
his software is affordable and the best to be had. Dragging this
thing on just hurts our economy more that it is already hurting. So
put it to rest and look into why the money from the tobacco
companies settlements isn't going to where it was meant to go. Get
involved with issues that really effect the population.
Kristie Ghioni
3012 W Viewmont Way W
Seattle, WA 98199
206-;283-;3504
MTC-00029145
From: Ludwik Kozlowski SR., M.D.
To: Microsoft Settlement
Date: 1/28/02 9:09pm
Subject: Microsoft Settlement
Ludwik Kozlowski SR., M.D.
7608 Geronimo Circle
N. Little Rock, Arkansas 72116
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ludwik J. Kozlowski SR., M.D.
MTC-00029146
From: Billy Long
To: Microsoft Settlement
Date: 1/28/02 9:10pm
Subject: Microsoft Settlement
Billy Long
1021 Wales Dr
La Plata, MD 20646
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Billy J. Long
MTC-00029147
From: Charles and Barbara Martin
To: Microsoft Settlement
Date: 1/28/02 9:10pm
Subject: Microsoft Settlement
Charles and Barbara Martin
503 51 Ave W
Bradenton, Fl 34207
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Charles and Barbara Martin
MTC-00029148
From: Don Young
To: Microsoft Settlement
Date: 1/28/02 9:10pm
Subject: Microsoft Settlement
Don Young
Rt. 1 Box 282 A-10
Scroggins, TX 75480
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Don E. Young
MTC-00029149
From: John Russell
To: Microsoft ATR
Date: 1/28/02 9:14pm
Subject: Microsoft Settlement
John Russell
14763 West Trevino Drive
Goodyear, AZ 85338
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft,
I am writing to express my opposition to the antitrust lawsuit
against Microsoft. Although I realize that the lawsuit is no longer
an issue, what is before your department is the court mediated
settlement that can end this debacle. Millions of taxpayer dollars
have been used in what essentially is a needless persecution of a
competitive company. What is before your department is an exhaustive
settlement that has terms that extend well beyond the products and
procedures that were originally at issue in the litigation.
Microsoft has agreed to these terms in the interest of servicing the
[[Page 28520]]
public good and allowing for a fair, agreeable end to this process.
This settlement, which has been reached by the Department of
Justice, and approved by nine of the participating states, contains
several provisions that extend significant restrictions and changes
to how Microsoft does business. The settlement requires Microsoft to
improve its relationship with computer and software manufacturers,
by ensuring that Microsoft will not retaliate against manufacturers
who ship non- Microsoft products and to create uniform pricing,
allowing consumers to get the best price for the product.
Additionally, the agreement allows any of Microsoft's competitors to
file a claim against Microsoft in federal court if they believe that
any part of the settlement has been violated, thereby forcing
Microsoft to be in contempt of court.
I strongly urge the Department of Justice to view this
settlement as having served the public interest and to end this
litigation. Nine states have approved this, and with the federal
government's leadership, this process may finally be over. In the
overall public interest, please cease any further action at the
federal level on this matter.
Sincerely,
John Russell
MTC-00029150
From: Tyson Murray
To: Microsoft ATR
Date: 1/28/02 9:15pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The three-year lawsuit against Microsoft has been continuing for
too long. I am amazed and appalled that the Government would attempt
to bring litigation against its strongest asset in the tech sector.
Microsoft creates jobs and wealth for our nation and does not
deserve to be a victim of federal and state litigation.
The terms of the settlement do little to protect consumer
rights. In fact, they just give Microsoft's competitors an edge that
they could not attain through innovation. Of particular interest to
me are the terms by which Microsoft has agreed to disclose
interfaces that are internal to Windows operating system products.
This is a first in an antitrust settlement and a violation of
Microsoft's intellectual property rights. Although flawed and
unjustified, I urge your office to finalize the settlement because
it is in the best interest of our economy and technology industry to
end this dispute.
Sincerely,
Tyson Murray
MTC-00029151
From: Lovella S Richardson
To: Microsoft ATR
Date: 1/28/02 9:15pm
Subject: Re: Microsoft Settlement
The judge's recent decision settling the Microsoft lawsuti seems
fair to all to me. I appreciate having a good browser that I don't
have to pay extra for. I feel that Microsoft has been a great
benefactor to the U. S. economy and technology in general.
Please let this settlement rest!
Lovella Richardson,
7706 Hodges Ferry Road, Knoxville, TN 37920
MTC-00029152
From: Lucas Rockwell
To: Microsoft ATR
Date: 1/28/02 9:17pm
Subject: Renata B. Hesse
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Renata B. Hesse,
I am writing to register my opposition to the proposed Microsoft
Settlement with the Department of Justice. My reasons for this are
many, but I will list just one for the purposes of this letter.
Microsoft is a convicted monopolist and allowing them to donate $1
billion worth of software to schools is ``not'' a
punishment. First, $1 billion to Micrsoft is not a lot of money.
Recently, Microsoft had $30 billion in cash on hand. Second,
Microsoft will experience years of benefits in sales from this deal
as schools will seek to upgrade their aging ``free'' MS
products. Also, when children learn software in school, parents have
a compelling reason to purchase the same software at home. This
settlement is a dream come true for Microsoft.
Please, reject this settlement offer.
I thank you very much in advance for your time.
-lucas
Lucas Rockwell
UAS Systems Group
510.642.6465
[email protected]
MTC-00029153
From: The--;Neumanns
To: Microsoft ATR
Date: 1/28/02 9:17pm
Subject: Microsoft Settlement
To whomever it may concern,
I am aware of the settlement agreement for Microsoft and agree
that the settlement is fair for all parties involved. To assume that
all end users are so uneducated that can not make an educated
decision for themselves is disturbing in the first place. Even a
teenager knows that if he purchases a car and does not like the
speaker system that comes preinstalled on the vehicle that they can
purchase a new speaker system from a variety of vendors. But then
perhaps the older you get the less aware you are... This settlement
has more than enough covenants in it. Let's not go overboard on the
restrictions.
We live in an age where the computer industry is a thriving
industry. More people than ever are using computers on a daily
basis. People know that Netscape is out there. I have IE and
Netscape on my PC and use them interchangeably. So, where have my
choices been limited? Nowhere! This topic really makes me mad.
Microsoft is a good company. I do not understand why people feel
like they should go after a company that is turning around and
contributing so much to our society. Mr. Gates distributes his
wealth to a multitude of charities. People like that are very hard
to find. Thank God for someone who is doing something to help people
that truly need it in our troubled society.
Sincerely,
Erika Neumann
CC:[email protected]@
inetgw
MTC-00029154
From: Gregg Bair
To: Microsoft ATR
Date: 1/28/02 9:15pm
Subject: Microsoft
Please leave the decesion whether Microsoft illegally snuffed
the COMPETITION where it belongs. With the consumer/ we will decide
who has the better product. I have been screwed by Microsoft's
competition many times. I would not buy anything else. They have
made the computer age affordable , away from the monopolies of Apple
and IBM.
In my opinion the legal system in this country should be
investigated for the damage it has caused the consumer. The
attorneys have raped this country and conned many people into
believing they are victims. I ask you this question, how many times
does your apple lock-up or what does it cost to fix the Apple? I
applauded Microsoft and Bill Gates.
Gregg Bair
I HOPE MY VOTE COUNTS. BECAUSE IT WILL CERTAINLY COUNT IN THE
NEXT POLITICAL ELECTION
MTC-00029156
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:17pm
Subject: Microsoft Settlement
164 Chesapeake Estate #64
Thomasville, PA 17364-;9661
January 10, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to you today to express my support of the recent
settlement reached between the Department of Justice and Microsoft.
After three years of litigation, the settlement marks an overdue end
to the litigation battle.
While the antitrust dispute was unnecessary in the first place,
it is great to see this period come to an end. It is time for
Microsoft, the IT industry, and the American economy to focus on
productivity again.
The settlement reached is more than equitable for Microsoft
competitors. Microsoft has been more than generous throughout this
process.
Most important among these concessions is Microsoft allowing for
the establishment of a regulatory committee. The technical oversight
committee, which will be run by three people, assures that the
stipulations mandated in the settlement are carried out. This shows
Microsoft's willingness to appease its competitors in their
commitment to put this issue at bay.
[[Page 28521]]
Thus, it is important that this settlement stands. It is time
for Microsoft and the larger IT industry to return to business as
usual.
Sincerely,
Marie Hollabaugh
CC:[email protected]@
inetgw
MTC-00029157
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:18pm
Subject: Microsoft Settlement
14202 W Via Manana
Sun City West, AZ 85375
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I think the antitrust case filed against Microsoft should
finally be settled.
I wonder why this case is being dragged on. Not only has
Microsoft made bold concessions in order to get back to business,
they have also promoted a more unified IT sector along the way. This
settlement clearly promotes a technology industry that works
together which will allow the US to maintain our position in the
global market.
Microsoft has made many concessions within the settlement that
include changes in product design, licensing and marketing. The
terms are meant to open competition to non-Microsoft software while
still allowing Microsoft to prosper. The settlement promotes a
teamwork environment in the technology industry and allows all to
prosper in the process. Microsoft's efforts to end the litigation
should be applauded.
I strongly urge that you close this case. The longer we wait for
a settlement, the longer we stray from focusing on innovation.
Sincerely,
Joan Fedor
CC:[email protected]@
inetgw
MTC-00029158
From: Juan E. Ramirez
To: Microsoft ATR
Date: 1/28/02 9:19pm
Subject: Microsoft Settlement
Microsoft is the 800 lb. Gorilla. They control OS software on
95% of all PCs sold in this country. If this is not a
``monopoly'' then the following companies were not:
US Steel
AT&T
Thanks,
Juan E. Ramirez
[email protected]
MTC-00029159
From: Shirley R Mundinger
To: Microsoft ATR
Date: 1/28/02 9:18pm
Subject: Microsoft settlement
I hope you will close this long period of bickering among some
of the Microsoft competitors and allegations against Microsoft.
They, Microsoft, have offered much to the public to make computer
use faster and more useable. Please let those fighting them, know
that nothing more can be accomplished by dragging this on through
the courts. Let them get on with their work and those that are
complaining get busy developing their own products to better serve
our nation.
This long battle is consuming to much money and time and is
unproductive and to our economy and our reputation as a nation. We
need to develop more integrity in the business world.
Yours truly,
Shirley Mundinger
MTC-00029160
From: Bob Essman
To: Microsoft ATR
Date: 1/28/02 9:18pm
Subject: Microsoft
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Renata B. Hesse,
I do not believe that the so called ``Antitrust'' laws
are constitutional except, perhaps under the constitution of the now
defunct U.S.S.R. or The Talibans of Afghanistan.
Although I do not believe that Microsoft is clean of all
possible charges, the process followed under this law is and should
be unproductive and futile. I've niether seen nor heard of any real
evidence. I've only heard accusations.
If Microsoft has broken a law, it should be charged with fruad
or theft or some real crime and not for persuing it1s inalienable
right to persue commerce and make money. Doing business better than
your competetors is a pure American ideal and should be encouraged
instead of picked at like a bunch of spoiled children fighting over
candy.
Get on with the real work that the taxpayers pay you to do and
get to Enron and/or Anderson where the evidence of wrongdoing is
apparent.
Sincerely,
Bob Essman
MTC-00029161
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:20pm
Subject: Microsoft Settlement
As a consumer and individual investor who owns stock in many
Tech. companies, including Microsoft, AOL Time Warner, Sun
microsystems, etc., I have followed the developments of the
government's case against Microsoft, and the complaints filed by
individual States and Microsoft's competitors. I continue to believe
the settlement already reached between Microsoft, the Justice Dept.,
and several States Should be the final judgement on the matter. No
one, especially Microsoft's competitors, has yet demonstrated any
injury to consumers by Microsoft's business practices. Although
Microsoft successfully won away customers from AOL's Netscape by
giving their Web Browser away for free, one can hardly say this
``injured'' consumers. Getting a superior product for free
is not what I would call being abused, nor is this an example of
being deprived of choice. There was a choice, and consumers took the
superior choice. Most savvy computer professionals agree that
Internet Explorer is far better than the Netscape browser, and the
Netscape browser cost money, it was not offered free. Also,
Microsoft has always striven to establish standards in its software
which would ensure its interoperability with many different
applications and prevailing programs. Netscape's product could not
boast the same attributes.
Also, today, as in the past, there is ample competition for
Microsoft, in operating systems such as Unix, Linux, Java, etc., and
in internet applications and access providers such as AOL time
Warner, Earthlink, and many others. Microsoft is not a monopoly in
my view, it is instead a great American success story which has
driven the local and national economy, provided thousands of high-
paying jobs, and has given much back to the community in raised
living standards and charitible donations.
Please bring this legal challenge to a close, as it is not
helping to protect consumers, it is not helping our economy to
rebound, and it is not justified by the sour grapes failures of
Microsoft's inadequate competitorswho seek the government's aid in
doing what they were unable to do in fair business competition.
Sincerely,
Baron Borrelli
Bellevue, WA.
MTC-00029162
From: Zoe Alvarez
To: Microsoft Settlement
Date: 1/28/02 9:14pm
Subject: Microsoft Settlement
Zoe Alvarez
1432 NW 26 Avenue
Miami, FL 33125-;2130
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies. Thank you for
this opportunity to share my views.
[[Page 28522]]
Sincerely,
Zoe Alvarez
MTC-00029163
From: Brad Chapman
To: Microsoft Settlement
Date: 1/28/02 9:14pm
Subject: Microsoft Settlement
Brad Chapman
4963 S 4055 W
SLC, UT 84118-;4044
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Brad Chapman
MTC-00029164
From: Sallie Landry
To: Microsoft Settlement
Date: 1/28/02 9:14pm
Subject: Microsoft Settlement
Sallie Landry
7414 Tanager
Houston, TX 77074
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Sallie Landry
MTC-00029165
From: Dona Sheets
To: Microsoft Settlement
Date: 1/28/02 9:14pm
Subject: Microsoft Settlement
Dona Sheets
3 Pichini Trace
Cherokee Village, AR 72529
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dona Sheets
MTC-00029166
From: Ellen Green
To: Microsoft Settlement
Date: 1/28/02 9:17pm
Subject: Microsoft Settlement
Ellen Green PO
Box 747 York, AL 36925
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Get off of Microsoft's back. Settle this case!
Sincerely,
Ellen Green
MTC-00029167
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:24pm
Subject: (no subject)
164 ChesapeakeEstate #64
Thomasville,PA 17364-;9661
January 10, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to you today to express my support of the recent
settlement reached between the Department of Justice and Microsoft.
After three years of litigation, the settlement marks an overdue end
to the litigation battle. While the antitrust dispute was
unnecessary in the first place, it is great to see this period come
to an end. It is time for Microsoft, the IT industry, and the
American economy to focus on productivity again. The settlement
reached is more than equitable for Microsoft competitors. Microsoft
has been more than generous throughout this process. Most important
among these concessions is Microsoft allowing for the establishment
of a regulatory committee. The technical oversight committee, which
will be run by three people, assures that the stipulations mandated
in the settlement are carried out. This shows Microsoft's
willingness to
[[Page 28523]]
appease its competitors in their commitment to put this issue at
bay. Thus, it is important that this settlement stands. It is time
for Microsoft and the larger IT industry to return to business as
usual.
Sincerely,
Thomas A. Hollabaugh
CC:[email protected]@inetgw
MTC-00029168
From: Zerbin Belles
To: Microsoft Settlement
Date: 1/28/02 9:18pm
Subject: Microsoft Settlement
Zerbin Belles
106 Brown Lane
Lexington, SC 29073-;8302
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Zerbin D. Belles
MTC-00029169
From: Austin Gonyou
To: Microsoft ATR
Date: 1/28/02 9:24pm
Subject: One last thing.
http://linuxtoday.com/
news--;story.php3?ltsn=2002-;01-;29-;008-;20-
NW-MS --;
Austin Gonyou
Systems Architect, CCNA
Coremetrics, Inc.
Phone: 512-;698-;7250
email: austin;@coremetrics.com
``It is the part of a good shepherd to shear his flock, not
to skin it.''
Latin Proverb
MTC-00029170
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:25pm
Subject: Microsoft Settlement
January 28, 2002
Attn: Renata B. Hesse
Antitrust Division
U. S. Department of Justice
601 D. Street NW, Suite 1200
Washington, DC 20530-;0001
To Whom It May Concern:
I would like to make known to the Attorney General my comments
concerning the Microsoft settlement. I believe that the Court of
Appeals ruling is reasonable and fair to all parties involved. I
would like my voice to be heard and that is why I am writing this
letter. I think that it would be very unfair to Microsoft if this
settlement is rejected.
Yours truly,
Debra K. Trantham
MTC-00029171
From: Gary Oja
To: Microsoft ATR
Date: 1/28/02 9:24pm
Subject: Microsoft Settlement
Dear DOJ,
With billions of dollars at its disposal, a fine would be
insignificant to Microsoft (although highly recommended). Any
settlement which includes the distribution of Microsoft products
would just worsen their monopoly. Please open up the arena to allow
other vendors software programs (applications and operating system
utlities, including Web browsers) to be substituted for Microsoft
products and force Microsoft to unbundle their software to permit
equal access. This would allow fair competition in the marketplace
and benefit all consumers.
Thank you.
Gary Oja
Principal Software Engineer
Worcester MA
[email protected]
MTC-00029172
From: Mark Donohoe
To: Microsoft ATR
Date: 1/28/02 9:25pm
Subject: Microsoft Settlement
To whom it may concern,
I am writting this e-mail to let you know that as a consumer I
feel frustrated, boxed in and limited by Microsofts monopoly. I have
little or no choices when it comes to operating systems or
applications to use on my home PC. This lack of choices limits my
use of the PC and causes daily productivity loss.
In the application area, there are few if any choices in word
processors, speadsheets or other applications. This is simply not
right in our competitive and free society we claim to have in the
U.S.A. I was hoping the goverment would do something but feel less
so in light of the recent actions by the goverment. The doj could
help by imposing the following on Microsoft.
1. Force them to publish and keep current the api's to their
applications and file formats for those applications. With the
published API's, others could write competing applications that
could convert existing microsoft files into the format used by the
competing application. Today this is not possible or is twarted by
MS.
2. Stop microsoft from further integrating features like
browsers, media players and the like into the operating system. I
use windows 98 now, and don't use IE, except when I have to. BUT, I
can't really remove it from my system without permantly damaging the
operating system.
3. Stop Microsoft from pointing me to microsoft companies. When
I got my pc, it insisted on bootup, that I either cancel the window
or login to the microsoft network. This was not only annoying, but
unless I sat and watched the machine boot and closed the window, the
machine would not complete booting. It took my quite a while, and
with some risk, to get this feature disabled.
4. All of the above would not be so bad, if it all worked, but
it doesn't! I must reboot my home machine very often, and must
reboot my system at work at least once a week to keep things
functioning. This is not to mention all the e-mail viruses and the
like that plague MS software.
Thank you for your time. Please help us consumers get this
monopolist out of our hair and allow real innovation in the
computing world.
Mark Donohoe
1012 Hewitt Dr.
San Carlos, Ca. 94070
([email protected])
CC:[email protected]@inetgw
MTC-00029173
From: Sandra Bottorff
To: Microsoft Settlement
Date: 1/28/02 9:18pm
Subject: Microsoft Settlement
Sandra Bottorff
12750 170th Avenue
LeRoy, MI 49655
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
[[Page 28524]]
Sincerely,
Sandra J. Bottorff
MTC-00029174
From: Dave Garman
To: Microsoft ATR
Date: 1/28/02 9:26pm
Subject: microsoft settlement
Judge Kollar-Kotally-
I am a scientist at a small biotechnology company involved in
developing therapeutics to help people. I am writing this letter in
protest of the proposed Microsoft settlement. We use Microsoft
products because we are forced to. For the research we do, computer
applications are often only generated for the Windows platform
because no other operating system has enough market share to justify
development. In itself, this is not a significant problem. However,
there are so many problems and issues with the Windows operating
system and Microsoft Office that we have been forced to hire a full
time Information Technology employee for a staff of only 15 people.
This expense, in conjunction with software and hardware costs forced
by Microsoft compatability issues, costs us more than $200,000
dollars a year. This is a huge expense for a small business.
The proposed settlement seems like a government endorsement of
the Microsoft monoplay. This will only make our situation worse,
with no competition to control inflation of prices. I hope you will
reconsider and take a tougher stance against Microsoft.
Sincerely,
Dave Garman, Ph.D.
Scientist
5084 McCoy Ave
San Jose, CA 95130
(408) 364-;1984
MTC-00029175
From: Galvin, Rob
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 9:25pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division U.S. Department of Justice
601 D Street NW Suite 1200
Washington, DC 20530-;0001
Ms. Hesse,
Attached are the Comments to the Revised Proposed Final Judgment
in United States v. Microsoft Corporation, No. 98-;1232,
submitted on behalf of Sun Microsystems, Inc. Copies of the comments
are submitted in both Word and .pdf formats. In addition, we have
sent a copy via facsimile. Please call if you have any difficulties
opening or processing these attachments.
Robert Galvin
Day Casebeer Madrid & Batchelder LLP
20300 Stevens Creek Blvd., Suite 400
Cupertino, CA 95014
(408) 342-;4578
Comments to the Revised Proposed Final Judgment in United States
v. Microsoft Corporation, No. 98-;1232
State of New York, et al. v. Microsoft Corporation, No.
98-;1233
Submitted By
Sun Microsystems, Inc.
Pursuant to the Tunney Act, 15 U.S.C. 16
Lloyd R. Day, Jr.
Robert M. Galvin
Renee DuBord
DAY CASEBEER MADRID & BATCHELDER LLP 20300
Stevens Creek Blvd. Suite 400
Cupertino, CA 95014
(408) 255-;3255
Jeffrey S. Kingston
James L. Miller
BROBECK, PHELGER & HARRISON LLP
Spear Street Tower
One Market Street
San Francisco, CA 94105
(415) 442-;0900
Michael H. Morris
Lee Patch
SUN MICROSYSTEMS, INC.
901 San Antonio Road
Palo Alto, CA 94303
(650) 960-;1300
Introduction
Microsoft illegally maintained its monopoly over Intel-
compatible personal computer ``PC'') operating systems by
acting to undermine the distribution and commercial appeal of
alternative computing platforms like Netscape Corporation's
Navigator browser and Sun Microsystems, Inc.'s JavaTM technology.\1\
By eliminating the ability of alternative platforms to compete with
Windows, Microsoft has not only maintained its monopoly over PC
operating systems, it also has dramatically increased the economic
power that it derives from that monopoly, such that Microsoft now
has the power to control competition in a number of adjacent and
downstream markets as well. In the emerging world of networked
devices and services, the commercial appeal and success of adjacent
or downstream devices and services such as servers, personal digital
assistants (``PDAs''), telephones, video game systems,
television set-top boxes, and web-based services are in very large
measure dependent on their ability to interoperate with PCs via the
Internet or other networks. Microsoft's expanded monopoly power over
PC operating systems and web browsers affords it the power to deny
competing devices and services the same ability to interoperate
fully and completely with PCs as Microsoft's networked devices and
services enjoy. Microsoft is in fact exercising the power it derives
from its PC monopoly in just this way to exclude competition in each
of these adjacent markets. Unless and until that power is
effectively checked and ultimately eliminated, Microsoft's past
practices and insatiable ambition demonstrate that it will continue
to destroy competition in each of these enormously important
markets.
---------------------------------------------------------------------------
\1\United States v. Microsoft Corp., 253 F.3d 34, 46 (DC
Cir. 2001) (``Microsoft III'').
---------------------------------------------------------------------------
Unfortunately, the Revised Proposed Final Judgment
(``RPFJ'') does little or nothing to eliminate the
unlawful monopoly maintained by Microsoft over PC operating systems.
Nor does it redress the harm that Microsoft's illegal acts have
caused to competition in that market. And while the RPFJ apparently
recognizes the threat to competition posed by Microsoft's
exclusionary behavior in adjacent and downstream markets, the
remedies it proposes to redress this threat are plagued with so many
loopholes and ambiguities that there can be no assurance that
Microsoft's anticompetitive conduct will stop. A. Competition in the
market for PC operating systems must be restored
The adjudicated facts establish that Microsoft illegally
maintained a monopoly over the market for PC operating systems by
undermining the ability of rival software platforms to compete in
that or closely related markets. By offering consumers the ability
to run compelling applications on operating systems other than
Microsoft's Windows operating system, the Navigator browser and Java
platform threatened to reduce or eliminate the applications barrier
to competition that sustains Microsoft's monopoly.\2\ Microsoft
fully recognized the threat these middleware platforms posed to its
continued monopoly over PC operating systems and contrived to
maintain that monopoly by restricting consumer access to these and
any other non-Microsoft middleware platforms.
---------------------------------------------------------------------------
\2\United States v. Microsoft Corp., 84 F. Supp. 2d 9,
68 (D.DC 2000) (``Findings of Fact'')
(explaining how middleware technologies such as the Navigator
browser and the Java platform have the ability to weaken the
applications barrier to entry).
---------------------------------------------------------------------------
The commercial appeal of any computing platform is dependent in
very large measure on the numbers of consumers who own or use the
platform. The greater the number of users, the greater the demand
for applications capable of running on that platform. The greater
the demand for applications, the greater the number and variety of
applications developed for the platform.
And the greater the number and variety of applications developed
for a platform, the greater the consumer demand for a given
computing platform.\3\ Once started, this ``feedback''
effect can and will sustain the adoption and commercial success of
platform software, such as Microsoft's Windows operating system,
Netscape's Navigator browser or Sun's Java platform. The key to
successful competition in platform software is thus distribution.\4\
Unless a platform enjoys widespread and sustained distribution, such
that large numbers of computer users have the platform installed and
available for use on their computer systems, the feedback cycle of
application development and platform adoption will not take effect.
---------------------------------------------------------------------------
\3\See Findings of Fact, 84F. Supp. 2d. at
39-;40.
\4\See Microsoft III, 253 F.3d at 55-;60,
60-;61, 70-;71; findings of fact, 84 F. Supp. 2d at
36-;52, 143-;144.
---------------------------------------------------------------------------
As the District Court found, and the Court of Appeals affirmed,
Microsoft engaged in a series of illegal acts to choke off the
distribution channels for the Navigator and Java platforms.\5\ By
restricting and disrupting the distribution of the Navigator browser
and the Java platform, Microsoft sought to limit the numbers of
computer users with access to these alternative platforms and
thereby also limit the demand for, and economic incentives
supporting, application development on the Navigator and Java
platforms. By decreasing the distribution of non- Microsoft
platforms, such as the
[[Page 28525]]
Navigator browser and the Java platform, Microsoft knew that it
could also decrease the number and variety of applications developed
for such platforms, and thus their relative commercial appeal to
consumers.
---------------------------------------------------------------------------
\5\See Microsft III, 253 F.3d at 61, 72, 75-;76;
Findings of Facts, 84F. supp. 2d at 357,
395-;402.
---------------------------------------------------------------------------
But for Microsoft's unlawful attack on the distribution of the
Navigator and Java platforms, the installed base of these
alternative platforms would have been very different today. So too
would the economic incentives and choices of consumers and software
developers.
Consumers would have had the opportunity to choose among a
variety of competing platforms--; not just Microsoft's Windows
platform--;based upon performance, cost or personal preference.
Developers too would have had the opportunity to choose among a
variety of competing platforms on which to develop applications with
the features, performance and cost that consumers demand.
Indeed, because the Navigator and Java platforms were
``cross-platform''--;that is, ran on top of a variety
of operating systems, not just Microsoft's Windows operating
system--; consumers would have had the ability to run
applications written for the Navigator browser and Java platform on
anyoperating system, not just Microsoft's Windows operating system.
By dramatically lowering the cost to switch applications from one
operating system to another, the Navigator and Java platforms
directly attacked the applications barrier to competition that
protects Microsoft's monopoly over PC operating systems, and greatly
reduced the cost to consumers and developers alike of switching away
from Microsoft's monopoly platform. In short, but for Microsoft's
anticompetitive conduct, consumers today would have enjoyed far
greater freedom, at far less cost, to choose among competing
operating systems based on their comparative features, performance,
and price, rather than simply the number of applications they
support. B. Microsoft's unlawful power to exclude competition in
adjacent and downstream markets must be stopped and eventually
dissipated
By disrupting and eliminating the distribution of competing
platforms, Microsoft has not only maintained its monopoly over PC
operating systems, it also has increased the economic power that it
derives from that monopoly. By secretly manipulating the interfaces
and protocols needed to interoperate with Windows, Microsoft can
control which products and services in adjacent or downstream
markets are capable of interoperating with PCs. Not only does this
permit Microsoft to enhance the relative appeal and functionality of
its products and services at the expense of its competitors, it
denies consumers the benefits of competition. Instead of choosing a
server, telephone, application, or web service based solely on its
competitive merits, Microsoft is increasingly forcing consumers to
purchase such products and services based upon their ability to
interoperate with its unlawfully monopolized platforms.
Microsoft is now abusing the power it has over PC operating
systems and web browsers by seeking to extend its control to embrace
any device, application, or web service that seeks to interoperate
with Microsoft's monopolized PC operating systems or browsers.
Microsoft's unbridled monopoly over a critical node on the digital
network--;PCs--;provides it the power to allow only such
servers, PDAs, telephones, television set-top boxes, videogame
systems, or web services that implement Microsoft's proprietary
interfaces and protocols to interoperate effectively with
Microsoft's monopoly products. By illegally exploiting its PC
operating system monopoly to acquire and utilize a chokehold over
networked connections to PCs, Microsoft is dramatically expanding
its power to deny consumers the benefits of choice and competition
in adjacent and downstream markets as well.
C. The RPFJ fails to remedy the monopoly illegally maintained by
Microsoft
In the face of this record, the law requires that any remedial
decree ``terminate'' the monopoly, ``unfetter''
the market from anticompetitive conduct, ``deny to the
defendant the fruits'' of its illegal acts, and
``ensure'' no repetition of such abuse in the future.\6\
Measured against this standard, the proposed settlement between the
United States and Microsoft reflected in the RPFJ falls far short.
---------------------------------------------------------------------------
\6\6 Microsoft III, 253 F.3d at 103.
---------------------------------------------------------------------------
Rather than act directly to restore competition to the market
for PC operating systems, and redress the harm to competition
inflicted by Microsoft's past misconduct in that and adjacent
markets, the RPFJ actually accedes to Microsoft's monopoly, and does
little or nothing to eliminate or check the enormous power it
provides. Incredibly, the RPFJ barely proscribes behavior already
held to be unlawful without remedying the far-reaching and
continuing anticompetitive effects that have been caused by that
behavior.\7\ Even though Microsoft effectively destroyed competition
for web browsers and blocked the distribution of upgraded,
compatible versions of the Java platform for the PC, the RPFJ fails
to remedy directly these anticompetitive acts or disgorge Microsoft
of the power it now enjoys as a result of those acts.
---------------------------------------------------------------------------
\7\See Schine Chain Theatres, Inc. v. United States, 334
U.S. 110, 128 (1948) (concluding that injunctive relief which merely
``forbid[s] a repetition of the illegal conduct'' is
legally insufficient because defendants would ``retain the full
dividends of their monopolistic practices and profit from the
unlawful restraints of trade which they inflicted on
competitors'').
---------------------------------------------------------------------------
Instead, the RPFJ relies on Microsoft's partners--;PC
manufacturers--;to indirectly undermine Microsoft's monopoly by
distributing non-Microsoft middleware. Relying on Microsoft's
distributors to achieve the Department's goals is fundamentally
flawed, since the PC manufacturers have little or no economic
incentive or ability to work with Microsoft's competitors, absent
fundamental changes to the competitive landscape in the PC operating
system market, which the RPFJ fails to seek.\8\ At best, the RPFJ
will marginally increase the opportunity, but not the ability, of
competitors to compete at some future date with Microsoft's
middleware products. It does nothing directly to dislodge
Microsoft's PC operating system monopoly or to restore the market
for PC operating systems to the competitive dynamics the market
would have possessed ``but for'' Microsoft's illegal
conduct.
---------------------------------------------------------------------------
\8\Findings of Fact, 84 F. Supp. 2d at 54
(stating that ``[w]ithout significant exception, all OEMs pre-
install Windows on the vast majority of PCs that they sell, and they
uniformly are of a mind.D. The loopholes in the RPFJ must be
eliminated and its important ambiguities clarified
---------------------------------------------------------------------------
While promising in principle, the disclosure remedies in the
RPFJ (Sections III.D. and III.E) are likely to fail in practice to
achieve the procompetitive objectives identified by the United
States Justice Department (the ``Department'') in its
Competitive Impact Statement. Key provisions in the RPFJ contain
critical loopholes and glaring ambiguities. Given Microsoft's past
disdain for compliance with the strictures of its prior antitrust
consent decree with the Department, these ambiguities will likely
lead to future litigation, particularly since Microsoft has
repeatedly refused to answer any questions regarding whether it
agrees or disagrees with the interpretations of the RPFJ proposed by
the Department in the Competitive Impact Statement. Instead, it is
clear that Microsoft's strategy is to say as little as possible
about the meaning or application of the RPFJ prior to entry of
judgment, hoping that any ambiguities in the language will
ultimately be interpreted in its favor. In order to protect the
public and ensure that the Department has actually secured a
settlement that is consistent with its representations to the Court,
the Department must force Microsoft to identify any disagreements
that it has with the Department's interpretations prior to entry of
the judgment. Unless such minimal steps are taken, the RPFJ will
certainly fail to secure even the modest objectives it seeks to
attain.
The RPFJ is further flawed because it allows Microsoft to profit
from its illegal acts by exacting royalties as a condition for
making interoperability disclosures. Moreover, it gives Microsoft
far too much discretion about how it will ``comply'' with
the RPFJ. Given its past record of anticompetitive conduct, a
remedial scheme which relies on Microsoft acting
``reasonably'' is doomed to fail. After having
successfully prosecuted its case against Microsoft, that there
exists no commercially viable alternative to which they could switch
in response to a substantial and sustained price increase or its
equivalent by Microsoft.'').It would be tragic for the
Department to shirk its duty under the law, and through entry of the
RPFJ, allow Microsoft to maintain and expand its monopoly power. II.
Sun Microsystems'' Interest Regarding the Terms of the
RPFJ''
Since its founding in 1982, Sun has been propelled by an
innovative vision--;``The Network Is The Computer.''
TM Sun is a leader in the design, manufacture, and sale of computer
hardware, software, and services. Sun directly competes with
Microsoft across a wide variety of markets including operating
systems, ``middleware'' platforms, software development
tools, office productivity suites, directory services, and
enterprise software.
Sun's experience and expertise place it in a unique position to
assess the true
[[Page 28526]]
competitive impact of the RPFJ. As one of Microsoft's leading
competitors and as the creator and licensor of the Java platform,
Sun was a prime target of the anticompetitive conduct at issue in
United States v. Microsoft. In addition, because Sun designs,
manufactures, and sells a wide variety of products and services that
must interoperate with Microsoft's products and services, Sun's
real- world experience regarding the difficulties and barriers to
effective interoperability with Microsoft's products affords Sun
unique insights into whether the various technical disclosures and
licensing practices mandated under the RPFJ will actually achieve
the results intended by the Department.
Sun's comments on the RPFJ are not intended to be exhaustive.
Instead, the comments focus on key shortcomings or problems with the
RPFJ, which most directly impact Sun, its distributors, developers,
and customers. Others, including trade organizations of which Sun is
a member, are likely to raise additional problems with the RPFJ,
which should be addressed prior to entry of the judgment. By
omitting such subjects from its submission, Sun does not wish to
convey to the Department the impression that it believes the
remainder of the RPFJ is satisfactory to Sun. Rather, Sun has merely
focused its comments to highlight particular areas of concern.
III. The RPFJ Fails To Remedy the Continuing Harm to Competition
Caused By Microsoft's Illegal Acts
A. The RPFJ fails to dissipate Microsoft's monopoly power in the
market for PC operating systems
A remedies decree in an antitrust case ``must seek to
unfetter a market from anticompetitive conduct, to terminate the
illegal monopoly, deny the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future.''\9\ The market over
which Microsoft has unlawfully maintained its monopoly power is the
market for PC operating systems. It is that market--;the market
for PC operating systems--; that must be restored to
competition, and in which Microsoft's power must be eliminated.
---------------------------------------------------------------------------
\9\Microsoft III, 253 F.3d at 103 (internal quotations
and citations omitted). Although the Department acknowledges the
required remedial objectives under the law, it fails to achieve them
in practice. See Competitive Impact Statement (``CIS'') at
24 (``Appropriate injunctive relief in an antitrust case
should: (1) end the unlawful conduct; (2) ``avoid a recurrence
of the violation'' and others like it; and (3) undo its
anticompetitive consequences.'').
---------------------------------------------------------------------------
The RPFJ, however, fails to serve this fundamental objective.
The first and most important flaw in the RPFJ lies in its failure to
do anything to restore competition in the market for PC operating
systems. But for Microsoft's anticompetitive conduct, the market
would today provide consumers and software developers with the
benefits of competitive choice among at least three alternative
computing platforms for desktop computers: the Windows operating
system, the Navigator browser, and the Java platform. As a direct
result of Microsoft's anticompetitive conduct, consumers and
developers today effectively enjoy no such choice. Rather than
restore the market to the state it would have enjoyed but for
Microsoft's illegal conduct, or even attempt to dissipate
Microsoft's illegally maintained power over that market,the RPFJ
accedes to and accepts Microsoft's monopoly over PC operating
systems, and does nothing to directly and immediately restore that
market to competition.
Indeed, the RPFJ does not even focus its principal remedies on
the relevant market: the market for PC operating systems. Instead,
it focuses its principal remedies on entirely different markets: the
market for distribution of Microsoft operating systems and the
market for middleware. In light of the record established and
affirmed in this case, the Department's reliance on Microsoft's own
distributors -entities whose commercial viability is dependent on
and inextricably tied to Microsoft's success--;to promote non-
Microsoft middleware products capable of threatening Microsoft's
monopoly position is misplaced at best, and foolhardy at worst.
1. The Department previously acknowledged that an effective
remedy had to eliminate the applications barrier protecting
Microsoft's monopoly In recognition of the Department's obligations
under the law and the extent of Microsoft's misconduct, the
Department originally set its remedial objectives much higher than
those proposed in the RPFJ. In fact, both the Department and the
District Court concluded that a combination of structural relief and
conduct remedies was necessary to lower the applications barrier to
entry and to restore competition in the market for PC operating
systems.\10\ As the Department itself acknowledged, conduct
remedies, by themselves, are likely to be insufficient in this case
to remedy the past harm to competition:
---------------------------------------------------------------------------
\10\United States v. Microsoft Corp., 97 F. Supp. 2d 59
(D.DC 2000), aff'd in part, rev'd in part, and remanded, 253 F.3d 34
(DC Cir. 2001).
---------------------------------------------------------------------------
[C]onduct remedies can do little to rectify the harm done to
competition by Microsoft's illegal conduct in the past. For example,
the evidence shows and the Court found that Microsoft's illegal
conduct prevented Navigator and Java from eroding the applications
barrier to entry ``for several years, and perhaps
permanently'' because they could not facilitate entry unless
they became almost ubiquitous and thus became attractive platforms
for ISVs. A conduct remedy cannot undo the demise of Navigator and
the concomitant rise of Internet Explorer, nor can it ensure that
there will be other middleware threats comparable to Navigator in
the future.\11\ According to the Department, ``[c]ompetition
was injured in this case principally because Microsoft's illegal
conduct raised entry barriers to the PC operating system market by
destroying developments that would have made it more likely that
competing operating systems would gain access to applications and
other needed complements.''\12\ Thus, ``the key to
a remedy in this case is to reduce Microsoft's ability to erect or
maintain entry barriers.''\13\ To achieve this
objective, the Department originally sought to divide Microsoft into
an Applications Business and an Operating Systems Business in order
to ``create incentives for Microsoft's Office and its other
uniquely valuable applications to be made available to competing
operating systems when that is efficient and profitable--;in
other words, in response to ordinary market forces--;instead of
being withheld strategically, at the sacrifice of profits and to the
detriment of consumers--;in order to protect the Windows
operating system monopoly.''\14\
---------------------------------------------------------------------------
\11\11 4/28/00 Plaintiffs'' Memo. in Support of
Proposed Final Judgment at 7-;8 (citations omitted).
\12\id. at 30.
\13\Id.
\14\Id.
---------------------------------------------------------------------------
But now that the Department has reversed its prior position and
seeks to rely solely on conduct remedies, the remedies it has
proposed are even less likely to rectify the harm done to
competition than the interim conduct remedies previously adopted by
the District Court. The conduct remedies of the RPFJ are simply not
tailored to rectify the continuing harm or lower the barriers to
competition for competing operating system vendors. For example, the
RPFJ does not even attempt to redress the competitive harm caused by
Microsoft's interference and disruption of the distribution channels
for the Navigator browser or the Java platform, even though
Microsoft correctly perceived that widespread distribution of these
platforms would lower the barriers to competition protecting its
monopoly. Nor does the RPFJ take any direct steps to loosen
Microsoft's chokehold on the PC operating system market and
facilitate the development of applications from both Microsoft and
others that could run on competing operating systems. If, as the
Department previously contended, the ``key to a remedy''
in this case is to reduce or eliminate Microsoft's ability to create
and maintain barriers to competition, the RPFJ does not attempt to
serve, much less achieve, that remedial objective.
Although the Court of Appeals vacated and remanded the District
Court's divestiture order, it affirmed the central liability
findings against Microsoft. Rejecting Microsoft's numerous
challenges, the Court of Appeals concluded that Microsoft had
monopoly power over the PC operating system market, that Microsoft's
monopoly was protected by an applications barrier to entry, and that
Microsoft engaged in a panoply of illegal acts to maintain that
monopoly in light of the competitive threat posed by the Navigator
browser and the Java platform? Furthermore, it set forth the legal
standard against which any remedy for such violations should be
measured.\16\
---------------------------------------------------------------------------
\16\Id. at 103.
---------------------------------------------------------------------------
While the Department certainly had discretion to choose not to
pursue a divestiture remedy on remand, the Court of Appeals'
affirmance of the core liability findings against Microsoft provided
no excuse for seeking watered-down conduct remedies that are likely
to be even less effective than the interim conduct remedies
previously ordered by the Court. This is not a case where the
Department entered into a
[[Page 28527]]
settlement with a defendant in lieu of trial. Here, the District
Court held, and the Court of Appeals affirmed, that Microsoft
violated the antirust laws. By failing to remedy the effects of
Microsoft's illegal acts, disgorge Microsoft's ill-gotten gains, and
attack the barriers to competition protecting Microsoft's monopoly,
the Department has shirked its duty under the law.
2. The RPFJ fails to address the effects of Microsoft's
distribution power
Any remedy designed to restore competition in the PC operating
system market must account for the economic realities of software
platform development. Distribution is the key to competitive
viability in the market for PC platform software? The applications
barrier to entry which forms a ``positive feedback loop''
for Microsoft and a ``vicious cycle'' for Microsoft's
competitors was a centerpiece of the Department's case: the number
of installed units of a platform determines its commercial appeal to
applications developers; the number and variety of applications
available for a platform determines its commercial appeal to
consumers; and the commercial appeal of the platform to consumers in
turn drives its installed base and market share.\18\ As the Court of
Appeals concluded, ``[b]ecause the applications barrier to
entry protects a dominant operating system irrespective of quality,
it gives Microsoft power to stave off even superior new
rivals.''\19\ In large measure, the Navigator browser
and the Java platform threatened Microsoft's monopoly because they
had achieved widespread distribution on both Windows and non-Windows
platforms, thereby becoming a potentially more attractive platform
for application development than Windows. If developers increasingly
chose to develop their applications to the Navigator and Java
platforms, rather than the Windows platform, consumers would have
greater freedom to switch away from the Windows operating system
because they would still be able to run the applications that they
desire using competing operating systems.
---------------------------------------------------------------------------
\18\Findings of Fact, 84 F. Supp. 2d at
39-;40.
\19\Microsoft III, 253 F.3d at 55-;56.
---------------------------------------------------------------------------
To restore competition in the PC operating system market, an
appropriate remedy should attempt to place the market back in the
position it would have been ``but for'' Microsoft's
illegal conduct. In other words, an appropriate remedy would ensure,
to the extent possible, that alternative platforms achieve the
distribution that they would have received ``but for''
Microsoft's illegal conduct. Moreover, an appropriate remedy also
would seek to open up Microsoft's distribution channels to expand
consumer choice by ensuring that alternative platforms could compete
on the merits with Microsoft's products, rather than having
Microsoft's illegally maintained distribution powers effectively
foreclose such choices.
To evaluate the potential efficacy of the RPFJ, one must compare
the competitive landscape before and after Microsoft's illegal acts.
Prior to Microsoft's acts, the marketplace was undergoing dramatic
changes as a result of the nearly simultaneous emergence of both the
Navigator browser and the Java platform. By easily connecting
consumers to resources across the Internet and providing a new
platform for software development, these new, widely- distributed
platforms threatened Microsoft's monopoly power because they
afforded consumers the ability to run applications on many different
operating systems, not just Windows. Customers could chose between
different browsers as well as different implementations of the Java
platform. They were not reliant on a single vendor for their
platform software. At this inflection point in the market, the
barriers to competition protecting Microsoft's monopoly looked
increasingly precarious.
Microsoft's internal documents demonstrate how serious that
threat really was. Despite its dominant market position, Microsoft
believed it was necessary to engage in a campaign of illegal conduct
to crush this competition. As a result of that conduct, consumers no
longer have any real competitive choices for browsers for PCs, other
than Microsoft's Internet Explorer. As a practical matter, PC
consumers also have been denied access to the latest, compatible
versions of the Java platform as a result of Microsoft's conduct.
Instead, Microsoft first offered an incompatible version of the Java
platform, and now seeks to roll-out their ``knock-off''
middleware runtime, the .NET Framework/Common Language Runtime, that
copies many of the features of the Java platform with one critical
difference--;it runs only on Windows.
The question that should be asked regarding the RPFJ is whether
it will disgorge from Microsoft the fruits of its illegal acts and
restore a competitive marketplace where consumers will have the
ability to choose their platform software from an array of
competitive choices. A critical review of the RPFJ makes plain it
does not. 3. The RPFJ does little more than attempt to enjoin
Microsoft from continuing to engage in the conduct already found to
be unlawful
Rather than attempting to undo the damage to competition
resulting from Microsoft's actions and pry open the PC operating
system market to competition, the RPFJ is purely forward- looking,
focusing primarily on the precise Microsoft conduct already found to
be unlawful.
Injunctive relief which simply ``forbid[s] a repetition of
the illegal conduct'' is insufficient under Section 2 because
it would allow Microsoft to ``retain the full dividends of
[its] monopolistic practices and profit from the unlawful restraint
of trade which [it] had inflicted on competitors.''\20\ As the
Supreme Court has made plain, an antitrust remedy ``does not
end with enjoining continuance of the unlawful restraints'' but
must also seek to undo the effects of the illegal acts and ensure
that they do not reoccur. \21\
---------------------------------------------------------------------------
\20\Schine, 334 U.S. at 128.
\21\See United States v. Paramount Pictures, 334 U.S.
131,171 (1948).
---------------------------------------------------------------------------
Most of the RPFJ is oriented towards prohibiting a narrow set of
future illegal conduct by Microsoft. For example, the RPFJ contains
provisions which would prohibit Microsoft from:
* retaliating against distributors of or developers for Non-
Microsoft Operating Systems and Non-Microsoft Middleware (Sections
III.A and III.F);
* entering into certain restrictive agreements relating to the
distribution of or development for Non-Microsoft Operating Systems
and Non-Microsoft Middleware (Sections III.C, III.F.2, III.G); or
* preventing end-users and OEMs from enabling non-Microsoft
Middleware Products over Microsoft Middleware Products (Section
III.H). Although such provisions are certainly appropriate in light
of Microsoft's past conduct, they merely enjoin Microsoft from
continuing to break the law in the future, and do nothing to repair
the damage to competition caused by Microsoft's past acts. 4. The
RPFJ assumes that Microsoft's Windows distributors will promote
competitive middleware products
Sun questions whether the Department's reliance upon Microsoft's
primary distributors, PC manufacturers, to re-start competition in
the PC operating system market is fundamentally misplaced. In its
Competitive Impact Statement, the Department contends that the RPFJ
will ``restore the competitive threat that middleware products
posed prior to Microsoft's unlawful undertakings.''\22\
The Department's assumption seems to be that by giving PC
manufacturers greater contractual freedom to distribute non-
Microsoft Middleware Products, a rich market of competing middleware
products will arise that could eventually give rise to alternative
computing platforms capable of undermining Microsoft's application
barrier to entry.
---------------------------------------------------------------------------
\22\CIS at 3.
---------------------------------------------------------------------------
The RPFJ, however, does nothing to ensure that such alternative
platforms are actually distributed to consumers. If PC manufacturers
choose not to distribute such software, consumers will never have
the choice that they had, prior to Microsoft's illegal acts, when
alternative platforms like the Navigator browser or the Java
platform were ubiquitously distributed. The key question then is
whether PC manufacturers will aggressively distribute non-Microsoft
platforms. Unfortunately, the Department's Competitive Impact
Statement offers no explanation or empirical evidence to support
this critical assumption.
Given the limited nature of the relief proposed in the RPFJ, Sun
is not as sanguine as the Department about such prospects.
First, despite the retaliation restrictions contained in the
RPFJ, because Microsoft's market power is left largely untouched and
PC manufacturers remain dependent solely on Microsoft for a critical
component for their products, it is very likely that, in practice,
many PC manufacturers will remain reluctant to risk incurring
Microsoft's wrath by supporting competing platforms. Microsoft
simply retains too many formal and informal tactics to reward its
``friends,'' and punish its ``enemies.'' One
need only look at PC manufacturers'' treatment of Microsoft's
Internet Explorer for guidance on how the terms of the RPFJ are
likely to be applied in practice. In July 2001, Microsoft announced
that PC manufacturers, for the
[[Page 28528]]
first time, would be free to remove access to Internet Explorer.
Since that time, not one PC manufacturer has removed the Internet
Explorer icon from retail PCs.
Second, under the terms of the RPFJ, competing middleware
vendors are at such a competitive disadvantage to Microsoft that it
will remain extremely difficult to secure distribution of these
competing products through PC manufacturers. Under the RPFJ,
Microsoft's ability to bundle middleware products into its Windows
operating system would remain essentially unfettered. PC
manufacturers would have the legal right to remove or disable
certain Microsoft middleware products, but what commercial incentive
will the PC manufacturers have to remove or disable the Microsoft
products if they have already paid for such products in order to
license the Windows operating system? Moreover, while Microsoft
retains the ability to bundle its middleware product (e.g., a
browser, media player, etc.) into every copy of Windows (absent an
affirmative act by a PC manufacturer to exclude such product), a
competitor would have to individually approach scores, if not
hundreds, of different PC manufacturers around the world and
negotiate a separate agreement with each to achieve a comparable
degree of distribution. In addition, because the marginal cost to
the PC manufacturer for the bundled Microsoft middleware product is
effectively zero, PC manufacturers may be reluctant to pay non-
Microsoft middleware vendors a sufficient price to recoup the costs
such middleware vendors would incur to make and sell competing
products.
Finally, since the vast majority of PC manufacturers are in the
business of selling Windows PCs, some manufacturers might believe it
is against their own commercial interests to support alternative
middleware platforms. For example, if a middleware platform (e.g.,
the Java platform) truly lowers barriers to entry and allows
consumers to run applications on any operating system (e.g., Apple
Mac operating system, etc.) that supports that middleware platform,
consumers eventually might chose to purchase their computers from
vendors other than Windows PC vendors. Thus, the RPFJ fails to
account for the fact that many PC manufacturers may derive
substantial benefit from maintaining the applications barrier to
entry protecting Microsoft's Windows monopoly. B. The RPFJ does not
remedy the continuing competitive harm to web browsers
Prior to Microsoft's illegal campaign, Netscape's Navigator
browser was the market leading web browser by a wide margin.\23\
Today, Microsoft's Internet Explorer browser dominates the market,
accounting for over 87% of all users. \24\To achieve this dramatic
turn of events, the District Court found, and the Court of Appeals
affirmed, that Microsoft engaged in a series of unlawful,
anticompetitive acts:
---------------------------------------------------------------------------
\23\See Findings of Fact, 84 F. Supp. 2d at
360.
\24\2/21/01 StatMarket Report Regarding Global Browser
Usage Share.
---------------------------------------------------------------------------
* Exclusionary contracts with OEMs,\25\ IAPs,\26\ and ISVs;\27\
---------------------------------------------------------------------------
\25\See Microsoft III, 253 F.3d at 64.
\26\See id. at 71.
\27\See id. at 72.
---------------------------------------------------------------------------
* Commingling of software code to make it technologically
difficult to remove, Internet Explorer from Windows;\28\
---------------------------------------------------------------------------
\28\See id. at 67.
---------------------------------------------------------------------------
* Anticompetitive deals with Apple Computer.\29\
---------------------------------------------------------------------------
\29\See id. at 74.
---------------------------------------------------------------------------
Not only did Microsoft effectively destroy Navigator as a viable
alternative platform, by seizing control over the web browser,
Microsoft greatly expanded its market power. By dominating web
browsers and effectively excluding all competitors, Microsoft
secured the power to set and control the protocols and interfaces
used for connecting with and communicating over the Internet.
Imagine, for example, that a single company monopolized the
manufacture and supply of telephones, such that it supplied 95% of
the world's telephones. If that company were permitted to change the
dial tone on its phones, or the keypad, in ways that permitted only
phones made by it to call and interact with its installed base of
telephones, the telephones made and sold by its competitors would
have very little or no value, since they could no longer
interoperate effectively with 95% of all telephones. And if that
company also altered the telephones it made so that they worked
best--;or indeed only--;with the telephone switches and
answering machines that the monopoly telephone company also made,
then that company would quickly obtain a monopoly over the telephone
switch and answering machine markets as well.
Microsoft's control over the browser and PC operating system
provides Microsoft with just such unbridled power to dictate
unilaterally the interfaces and protocols by which other devices and
applications can interoperate with Microsoft's products and services
over the Internet. The role played by the browser in communicating
with devices, applications, and web services over the Internet is
directly analogous to the role played by the consumer telephone in
the telephone network.
As a result of Microsoft's illegal acts, Microsoft can now
exclude competing products and services from being able to
communicate over the Internet with Microsoft's browser, or Microsoft
can mandate interfaces and protocols which favor its products over
competitors'' products. Thus, by virtue of its anticompetitive
conduct, Microsoft has secured the power to potentially appropriate
a public asset of immeasurable value--;the
Internet--;through use of proprietary interfaces and protocols.
Control of the browser also was essential to protecting
Microsoft's PC operating system monopoly. By controlling this
``killer application,'' Microsoft can determine which
competing operating systems, if any, will be able to run Internet
Explorer. Without first-rate browser support capable of
communicating with the content available across the Internet,
competing PC operating systems simply will not be able to attract
consumers away from Microsoft's monopoly operating system.
Finally, control of the browser was important in order for
Microsoft to be able to control a key distribution channel for
middleware that potentially threatened Microsoft's monopoly.
Browsers have been a vital distribution channel for a variety of
middleware products, including the Java platform, media players,
instant messaging products, etc. If Microsoft did not control this
distribution channel, competitors could have continued to use
competing browsers as a vehicle for distributing non-Microsoft
middleware.
Consequently, the continuing competitive harm flowing from
Microsoft's unlawful conduct is substantial. The RPFJ, however, does
nothing directly to address it. Instead, it leaves Microsoft to
enjoy the spoils of its illegal conduct. At best, the RPFJ attempts
to make it easier for PC manufacturers to now distribute competing
browsers. But given the dominant position that Internet Explorer has
now achieved, who will develop and market a competing browser?
Because Microsoft bundles Internet Explorer with its monopoly
operating system, a competitor would have to compete against a
product with a marginal cost to PC manufacturers and consumers of
essentially zero, since Microsoft can recoup its costs from its
monopoly products. Even if the competing browser were technically
superior, Microsoft can regularly introduce new interfaces and
protocols to interfere with the competing browser's ability to
compete, forcing the competitor to chase each new proprietary
standard Microsoft announces.
Unless Microsoft is first stripped of the fruits of its illegal
conduct, real competition in the browser market is unlikely to
occur. Absent such remedial relief, it is akin to holding a 100-yard
dash in which Microsoft has an 87-yard lead after jumping the gun
and intentionally tripping all of its competitors. Consumers are
directly harmed as a result. Instead of a marketplace offering many
different browser choices, consumers are increasingly faced with
only one choice -Microsoft's browser. C. The RPFJ does not remedy
the substantial harm to competition caused by Microsoft's illegal
acts against the Java platform
The District Court found, and the Court of Appeals affirmed,
that Microsoft engaged in numerous anticompetitive acts directed
against the Java platform:
* Exclusionary ISV deals;\30\
---------------------------------------------------------------------------
\30\See id. at 76.
---------------------------------------------------------------------------
* Anticompetitive threats to Intel to stop Java platform
development;\31\
---------------------------------------------------------------------------
\31\See id. at 78.
---------------------------------------------------------------------------
* Deceiving developers into using Microsoft's incompatible
implementation of the Java platform;\32\\33\\34\
---------------------------------------------------------------------------
\32\See id. at 77.
\33\See Findings of Fact, 84 F. Supp. 2d at
397 (explaining how Microsoft used some of its
``surplus monopoly power'' to suppress distribution of
Netscape Navigator and inflict further competitive damage on the
distribution of the Java platform).
\34\See United States v. Microsoft Corp., 980 F. Supp.
537, 539 (D.DC 1997).
---------------------------------------------------------------------------
* Blocking distribution of Netscape Navigator--;a prime
distribution channel for the Java platform to PCs?
Prior to Microsoft's anticompetitive acts, Sun had secured two
major distribution channels for delivering the Java platform to
PCs--;Netscape's Navigator browser and Microsoft's Internet
Explorer browser and
[[Page 28529]]
Windows operating system. By its illegal acts, Microsoft effectively
blocked the distribution of compatible, upgraded versions of the
Java platform through both channels, and substantially slowed the
development of desktop applications written to the Java platform.
First, by blocking distribution of Netscape Navigator and
dramatically reducing its market share, Microsoft effectively closed
this alternative channel for distributing compatible versions of the
Java platform to PCs. Second, by developing and distributing its own
incompatible version of the Java platform which was tied to Windows,
Microsoft fragmented the Java platform in order to re-create its
applications barrier to entry, ensuring that PC consumers only had
Microsoft's version of the Java platform. By refusing to distribute
compatible upgrades of the Java platform, Microsoft effectively
froze desktop development for the Java platform by continuing to
distribute an ``old'' version of the technology, which did
not have the richer set of functionality available in later
versions. Finally, by means of exclusionary deals, threats, and
incompatible developer tools, Microsoft attempted to either deceive
or coerce developers away from developing compatible applications
written to the Java platform that could run on operating systems
other than Windows.
Since the trial, Microsoft has continued to attack the Java
platform to the detriment of consumers. In its most recent version
of Windows, Windows XP, Microsoft no longer included even the old
version of the Java platform which it previously had been shipping
as part of Windows in accordance with the terms of a settlement
agreement with Sun. As a result, millions of consumers purchasing
Windows XP will no longer be able to access web pages that contain
applications written to the Java platform unless they engage in a
time-consuming download of the entire Java platform.
In addition, Microsoft recently unveiled its own competing
middleware runtime--;the .NET Framework--;as part of its
.NET initiative. During the time that Microsoft effectively halted
the development and distribution of the Java platform for the PC for
several years, it simultaneously was busy developing its own
middleware runtime that copied the design and architecture of the
Java platform with one glaring difference--;the .NET Framework
runs only on Windows. Thus, not only did Microsoft's illegal conduct
allow it to blunt the competitive threat which the Java platform
posed to Microsoft's Windows monopoly, it also allowed Microsoft the
time to try and catch up with many of the compelling features that,
at the time, only the Java platform offered.
The RPFJ, however, does not seek to remedy the continuing
competitive harm caused by Microsoft's actions. For example, the
RPFJ does nothing to attempt to put the marketplace in the position
it would have been ``but for'' Microsoft's
conduct--;ubiquitous distribution of an upgraded, compatible
Java platform on top of every Windows operating system as an
available, alternative platform for software applications. Nor does
it account for the time-to-market advantage that the Java platform
lost as a result of Microsoft's conduct, particularly now that
Microsoft will attempt to compete against the Java platform with its
.NET Framework.
Instead of attempting to undo this damage to competition, the
RPFJ would allow Microsoft to bundle its competing .NET Framework
with Windows, while forcing Sun and its licensees to try and re-
create the distribution channels that Microsoft unlawfully
destroyed.
Absent real remedial relief, Microsoft will continue to reap the
benefits of its unlawful conduct, and consumers will have no
meaningful alternative computing platform available on PCs that is
not controlled by Microsoft. IV. Critical Terms In The RPFJ Are
Undefined or Ambiguous A. Significant ambiguities in the RPFJ must
be cured to avoid further litigation
The dispute between Microsoft and the Department regarding the
prior consent decree demonstrates the need to carefully define
technical terms to avoid future litigation and ensure the parties
agree with respect to Microsoft's obligations. As the Department is
well aware, the 1995 consent decree with Microsoft prevented
Microsoft from requiring PC manufacturers to license other products
as a condition of licensing the Windows operating system? However,
the consent decree specified that this obligation did not
``prohibit Microsoft from developing integrated
products,'' though the term ``integrated products''
was left undefined?
In 1997, the Department asked the District Court to find
Microsoft in contempt for requiring PC manufacturers who licensed
the Windows operating system to also license Internet Explorer.
Although the District Court found that the Department's proposed
definition was probably correct, the court declined to find
Microsoft in contempt because Microsoft offered a ``plausible
interpretation,'' and any ambiguities had to be resolved in
Microsoft's favor?
Given that any ambiguities are likely to be resolved in
Microsoft's favor in any future enforcement proceeding, Sun believes
it is essential that any and all material ambiguities be clarified
prior to the entry of the RPFJ.
Although the Department offers its own interpretation of some of
the RPFJ's ambiguous terms in the Competitive Impact Statement,
Microsoft has repeatedly refused to reveal whether it disagrees with
those interpretations. For example, following recent testimony by
Microsoft's counsel, Charles Rule, before the Senate Judiciary
Committee, members of the Committee posed a series of questions to
Mr. Rule regarding whether Microsoft agreed with the Department's
interpretation of the RPFJ as set forth in the Competitive Impact
Statement. Mr. Rule's responses were telling. When asked a series of
questions directed to whether ``Microsoft disagree[d] with
anything stated in the Department's Competitive Impact Statement
concerning the meaning and scope of the proposed Final
Judgment,'' Mr. Rule refused to answer the questions directly,
instead repeatedly referring to the same ``non-answer'':
Microsoft did not participate in the preparation of the
Competitive Impact Statement. The language of the Revised Proposed
Final Judgment was carefully negotiated and means what it says. The
Department's Competitive Impact Statement has the same legal force
and effect in this case as in any other. Beyond that I cannot go in
light of the facts that the Tunney Act proceeding is currently under
way before Judge Kollar-Kotelly and that the non-settling states are
attempting to raise various issues concerning the Competitive Impact
Statement as part of the ongoing ``remedies'' litigation
also before Judge Kollar-Kotelly. Once that litigation is completed,
I may be in a better position to discuss these issues with the
Committee.
Microsoft's clear strategy is to refuse to reveal anything about
its interpretations of the RPFJ prior to the Court's entry of the
judgment, lest it become clear to both the Department and the public
that Microsoft's understanding of its potential obligations under
the RPFJ is substantially different from the Department's. Then,
when disputes with the Department about the scope of its obligations
arise, as they inevitably will, Microsoft will be free to argue that
the RPFJ is ambiguous, and therefore must be construed, as a matter
of law, in Microsoft's favor?
While it certainly is in Microsoft's interest to pursue such a
strategy, the Department should not risk being complicit in a scheme
that would effectively mislead the Court and the public about the
true nature and impact of the RPFJ. The Department should insist
that Microsoft identify any and all disagreements that it has with
the interpretations offered by the Department in the Competitive
Impact Statement prior to entry of the RPFJ. Absent such an inquiry
and a record of Microsoft's position, the District Court, Sun, and
the public at large have no assurances that the terms of the RPFJ
will actually be construed in the manner proposed by the Department
in its Competitive Impact Statement. B. ``Interoperate''
and ``interoperating'' must be defined
The key disclosure provisions contained in the RPFJ rely on the
terms ``interoperate'' and ``interoperating'' to
define the scope of Microsoft's obligations, but these critical
terms are not expressly defined.
Section III.D of the RPFJ would require Microsoft to disclose
``for the sole purpose of interoperating with a Windows
Operating System Product... the APIs and related Documentation that
are used by Microsoft Middleware to interoperate with a Windows
Operating System Product.'' (emphasis added).
Section III.E would require Microsoft to: make available for use
by third parties, for the sole purpose of interoperating with a
Windows Operating System Product, on reasonable and non-
discriminatory terms .... any Communication Protocol that is... (i)
implemented in a Windows Operating System Product installed on a
client computer, and (ii) used to interoperate natively (i.e.,
without the addition of software code to the client operating system
[[Page 28530]]
product) with a Microsoft server operating system product. (emphasis
added).\35\\36\\37\\38\\39\
---------------------------------------------------------------------------
\35\Id. at 539-;40 (emphasis added).
\36\Id. at 541-;42.
\37\Responses of Charles F. Rule to Judiciary Committee
Questions at 13.
\38\See Microsoft, 980 F. Supp. at 541 (``The Court
must resolve any ambiguities in the terms of the Final Judgment in
favor of Microsoft, the party charged with contempt.''); see
also Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921,927-;28
(DC Cir. 1982).
\39\See also Section III.H (providing that a Windows
Operating System Product may invoke a Microsoft Middleware Product
in any instance in which ``that Microsoft Middleware Product
would be invoked solely for use in interoperating with a server
maintained by Microsoft (outside the context of general Web
browsing)'').
---------------------------------------------------------------------------
Depending on the definition of these terms, the scope of
Microsoft's obligations under these provisions could vary
dramatically. Therefore, in order to avoid a reprise of the
litigation surrounding the 1995 consent decree with Microsoft, the
Department should clarify the meaning of these terms in the text of
the RPFJ, particularly since any ambiguity is likely to be construed
in Microsoft's favor in any enforcement action brought by the
Department.
An explicit definition of these terms is essential because Sun
believes the Department and Microsoft likely attach very different
meaning to these terms.
For example, in the Competitive Impact Statement, the Department
offers a number of broad characterizations regarding the scope of
these interoperability disclosures:
* ``[I]f a Windows Operating System Product is using all
the Communications Protocols that it contains to communicate with
two servers, one of which is a Microsoft server and one of which is
a competing server that has licensed and fully implemented all the
Communications Protocols, the Windows Operating System Product
should behave identically in its interaction with both the Microsoft
and non-Microsoft servers.''\40\
---------------------------------------------------------------------------
\40\CIS at 38.
---------------------------------------------------------------------------
* ``Section III.E. will permit seamless interoperability
between Windows Operating System Products and non-Microsoft servers
on a network. For example, the provision requires the licensing of
all Communications Protocols necessary for non-Microsoft servers to
interoperate with the Windows Operating System Products''
implementation of the Kerberos security standard in the same manner
as do Microsoft servers, including the exchange of Privilege Access
Certificates. Microsoft must license for use by non-Microsoft server
operating system products the Communications Protocols that Windows
Operating System Products use to enable network services through
mechanisms such as Windows server message block protocol/common
Internet file system protocol communications, as well as Microsoft
remote procedure calls between the client and server operating
systems.''\41\
---------------------------------------------------------------------------
\41\CIS at 38-;39.
---------------------------------------------------------------------------
* ``Section III.D of the proposed Final Judgment requires
Microsoft to disclose to ISVs, IHVs, IAPs, ICPs and OEMs all of the
interfaces and related technical information that Microsoft
Middleware uses to interoperate with any Windows Operating System
Product .... Microsoft will not be able to hamper the development or
operation of potentially threatening software by withholding
interface information or permitting its own products to use hidden
or undisclosed interfaces.''\42\
---------------------------------------------------------------------------
\42\CIS at 33.
---------------------------------------------------------------------------
In light of these comments, the Department appears to be
interpreting ``interoperate'' to mean the ability of two
different products to access, utilize, and support the full features
and functionality of one another. Under the Department's
interpretation, the disclosures would be of sufficient detail to
allow a non-Microsoft server operating system to implement the
Microsoft Communication Protocols in a manner such that the non-
Microsoft server operating system could be substituted for a
Microsoft server operating system without any disruption,
degradation, or impairment of all the features, functionality, and
services of any Microsoft PC operating system connected to such non-
Microsoft server operating system.
By contrast, in proceedings before the European Commission,
Microsoft has asserted a much narrower interpretation of
``interoperate'' than the Department's interpretation. In
that forum, Microsoft has maintained it already discloses all
information necessary to achieve interoperability between
Microsoft's PC operating system and non-Microsoft server operating
systems. Since Microsoft contends that they already disclose all of
the information necessary to satisfy this narrow definition of
``interoperate,'' if this definition were to prevail,
Microsoft will disclose nothing new. Its conduct will remain
unchanged.
Under Microsoft's narrow definition, interoperability is a one-
way street that is satisfied if all of the functionality of a non-
Microsoft server operating system can be accessed from a Windows PC
operating system. In contrast to the Department's position,
Microsoft has repeatedly taken the position that interoperability
does not require a disclosure sufficient to allow a Windows PC
operating system to behave identically when connected to both
Microsoft and non-Microsoft server operating systems. Moreover,
Microsoft has previously claimed that ``interoperability''
relates only to those protocols and interfaces which Microsoft has
chosen to document and make available to third parties, and should
not include protocols and interfaces that Microsoft reserves for
itself to use to connect its PC and server operating system
products. Absent an explicit definition of this critical term in the
RPFJ, Sun believes the disclosure provisions of the RPFJ are doomed
to fail. To avoid future disputes over the meaning of this term and
to ensure that the public actually receives a remedy that is
consistent with the
Department's representations in the Competitive Impact
Statement, Sun proposes that the RPFJ should be amended to include
the following definition:
``Interoperate'' or ``Interoperating'' means
the ability of two different products to access, utilize and/or
support the full features and functionality of one another in all of
the ways they are intended to function. For example, a non-
Microsoft operating system installed on a server computer
``Interoperates'' with a Windows Operating System Product
installed on a Personal Computer if such non-Microsoft server
operating system can (a) be substituted for a Microsoft operating
system running on a server computer connected to a Personal Computer
running a Windows Operating System Product, and (b) provide the user
of the non-Microsoft server operating system the ability to access,
utilize and/or support the full services, features and functionality
of the Windows Operating System Product that are accessed, utilized
and/or supported by such Microsoft server operating system without
any disruption, degradation or impairment in such services, features
and functions. C. The scope of Microsoft's ``Communication
Protocols'' disclosure should be clarified and exemplified
As a vendor of server operating systems that must connect and
communicate with Microsoft's monopoly PC operating system, the
disclosure and licensing provisions in Section III.E relating to
Microsoft's Communications Protocols are especially important to
Sun's business. Although the term Communications Protocols is
expressly defined, the RPFJ lacks any explicit examples regarding
which Microsoft technologies would currently be required to be
disclosed or what the extent of such disclosure would be in
practice. While the terms of the RPFJ must be written to anticipate
Microsoft's future conduct, there is no excuse for misunderstandings
regarding Microsoft's obligations with respect to known, existing
interoperability barriers. Because the technical terms surrounding
this provision are potentially subject to varying interpretations,
the RPFJ would be substantially improved if it gave better guidance
on how these provisions would actually be applied in practice.
For example, in its Competitive Impact Statement, the Department
identifies some of the specific protocols it believes Microsoft will
be required to disclose under Section III.E to the extent such
protocols are implemented in Microsoft's PC operating system
products, including: protocols relating to Microsoft's Internet
Information Services (``IIS'') web server and Active
Directory, Microsoft's implementation of the Kerberos security
standard (including the exchange of Privilege Access Certificates),
the Windows server message block protocol, the Windows common
Internet file system protocol, Microsoft remote procedure calls
between the client and server operating systems, and protocols that
permit a runtime environment (e.g., the Common Language Runtime) to
receive and execute code from a server.\43\
---------------------------------------------------------------------------
\43\CIS at 37-;39.
---------------------------------------------------------------------------
Microsoft, however, has refused to say whether it agrees with
the Department's interpretation. To avoid future disputes and ensure
that the parties agree on the kinds of protocols that will fall
within the scope of the term ``Communications Protocols,''
the RPFJ should be amended to identify
[[Page 28531]]
particular examples of protocols that Microsoft would be required to
disclose. Furthermore, in advance of entry of the RPFJ, Microsoft
should be required to fully detail what it will disclose with regard
to existing Communications Protocols that pose a barrier to
interoperability. At a minimum, the Department should require
Microsoft to identify any disagreements Microsoft has with the
Department's interpretation of this provision prior to entry of the
RPFJ. Unless the Department and Microsoft go through the exercise of
attempting to apply this provision in practice, the public cannot be
assured that there truly has been a ``meeting of the
minds'' regarding the scope and meaning of this important
provision.
Not only should the Department clarify the RPFJ with examples of
particular protocols that Microsoft currently would be required to
disclose, the Department also should clarify the kinds of
information Microsoft will be required to disclose regarding its
Communications Protocols. Although the term Communications Protocols
appears to be defined broadly in Section VI.B of the RPFJ, in
practice, the actual application of these provisions is likely to
give rise to many potential questions and disputes. For example,
* Is everything that is shipped with Microsoft Windows server
operating system products (e.g., Windows 2000 Server, Windows 2000
Advanced Server, etc.), including Microsoft's Active Directory or
IIS, part of the ``server operating system,'' and
therefore potentially the subject of disclosure to the extent it
comprises a ``Communications Protocol''?
* Are Active Directory, Kerberos security protocol, COM+, Dfs,
DLT, CIFS extensions, RPC, the Win 32 APIs, or Passport examples of
``Communications Protocols'' that must be disclosed and
licensed pursuant to Section III.E of the RPFJ?
* Where Microsoft has extended an industry standard like
Kerberos, will Microsoft be required to disclose both the standard
portion of its implementation and its proprietary extensions?
* Will Microsoft be required to disclose the details regarding
its proprietary implementation of the Kerberos security protocol in
Windows 2000 and Windows XP Professional, including the information
necessary for a non-Microsoft server to be able to generate,
exchange, and process the authentication and authorization data in
Privilege Access Certificates?
* What does ``make available for use by third
parties'' mean in practice in the context of Section III.E?
Will Microsoft be required to just disclose fields, formats, etc.,
or will it be required to disclose sufficient information to allow a
competitor to create its own implementation of the Communications
Protocol that will allow a competitor's server operating system to
seamlessly interoperate with the Windows PC operating system in the
same manner as a Microsoft server operating system?
Unless such questions are resolved and clarified in advance of
entry of the RPFJ, the disclosure and licensing obligations of
Section III.E will not provide any meaningful relief. D. The scope
of the ``carve-out'' provisions of Section III.J should be
clarified Particularly troubling to Sun is the possibility that the
``carve-out'' provisions of Section III.J might be broadly
construed by Microsoft to exclude many of the kinds of disclosures
that would otherwise fall within the scope of Sections III.D and
III.E. Section III. J. 1 provides that no provision of the Final
Judgment shall: [r]equire Microsoft to document, disclose or license
to third parties: (a) portions of APIs or Documentation or portions
or layers of Communications Protocols the disclosure of which would
compromise the security of a particular installation or group of
installations of anti-piracy, anti-virus, software licensing,
digital fights management, encryption or authentication systems,
including without limitation, keys, authorization tokens or
enforcement criteria .... (emphasis added).
In the Competitive Impact Statement, the Department
characterizes this exception as a ``narrow one, limited to
specific end-user implementations of security items such as actual
keys, authorization tokens or enforcement criteria, the disclosure
of which would compromise the security of ``a particular
installation or group of installations'' of the listed security
features.''\44\ But nowhere in the RPFJ is the term
``compromise the security of a particular installation or group
of installations'' defined. What will this provision mean in
practice? With respect to known interoperability problems relating
to Active Directory, Microsoft's Kerberos security model, Windows
Media Player, or the Passport authentication/authorization service,
what portions of those protocols and interfaces can Microsoft refuse
to disclose pursuant to this provision? If Microsoft refuses to
disclose such information, will competitors be able to fully
interoperate with all of the features and functionality of the
Windows operating system, or will the value of the disclosure
provisions be effectively eviscerated? What steps has the Department
taken to ensure that, in practice, this exception will not swallow
the intended effect of the disclosure provisions?
---------------------------------------------------------------------------
\44\CIS at 39.
---------------------------------------------------------------------------
Again, unless such questions are clarified in advance of entry
of the RPFJ, Microsoft is likely to use this purportedly narrow
exception to eviscerate its disclosure and licensing obligations
under the RPFJ. E. The definition of ``Microsoft Middleware
Product'' should be amended
The definition of ``Microsoft Middleware
Product''\45\ in the RPFJ is fundamentally flawed
because it grants Microsoft discretion to limit its obligations
merely based on the way it chooses to trademark its products. For
middleware functionality that is distributed after entry of the
Final Judgment, except for a small, specified class of middleware
applications (e.g., Internet browsers, email client software, etc.),
Microsoft's obligations under the RPFJ are not triggered unless it
chooses to distribute the middleware product under a trademark other
than ``Microsoft??'' or Functionality that Microsoft
describes or markets as being part of a Microsoft Middleware Product
(such as a service pack, upgrade, or bug fix for Internet Explorer),
or that is a version of a Microsoft Middleware Product (such as
Internet Explorer 5.5), shall be considered to be part of that
Microsoft Middleware Product.
---------------------------------------------------------------------------
\45\The RPFJ defines ``Microsoft Middleware
Product'' as follows: 1. the functionality provided by Internet
Explorer, Microsoft's Java Virtual Machine, Windows Media Player,
Windows Messenger, Outlook Express and their successors in a Windows
Operating System Product, and 2. for any functionality that is first
licensed, distributed or sold by Microsoft after the entry of this
Final Judgment and that is part of any Windows Operating System
Product a. Internet browsers, email client software, networked
audio/video client software, instant messaging software or b.
functionality provided by Microsoft software that--; i is, or in
the year preceding the commercial release of any new Windows
Operating System Product was, distributed separately by Microsoft
(or by an entity acquired by Microsoft) from a Windows Operating
System Product; ii. is similar to the functionality provided by a
Non-Microsoft Middleware Product; and iii. is Trademarked.
---------------------------------------------------------------------------
``Windows??.''\46\In other words, after entry
of the RPFJ, if Microsoft bundles its new middleware runtime
alternative to the Java platform, the .NET Framework (also known as
the Common Language Runtime) with Windows, it only would have to
make disclosures about the APIs used by the .NET Framework or allow
OEMs and consumers to remove access to it, if it chose to distribute
the .NET Framework under the trademarked name ``.NET
Framework.'' If it simply distributed the product under the
name ``Microsoft* .NET Framework,'' its activities would
appear to be unconstrained by the RPFJ. To allow Microsoft to evade
its obligations under the RPFJ based on arbitrary trademarking
practices is absurd.
---------------------------------------------------------------------------
\46\See RPFJ, Sections VI.K and VI.T.
---------------------------------------------------------------------------
To avoid this result, the definition of ``Microsoft
Middleware Product'' should be amended as follows: the
``Trademarked'' requirement of Section VI.K.2.b.iii should
be stricken; the terms ``.NET Framework'' and
``Common Language Runtime'' should be added to Section
VI.K.1; and the term ``middleware runtime environment''
should be added to Section VI.K.2.a.
V. Section III.I's Licensing Provisions Allow Microsoft to
Profit from Its Unlawful Acts
A. Microsoft should not be allowed to demand royalties as a
condition for making interoperability disclosures
The licensing provisions of the RPFJ are fundamentally flawed
because they would require the public to pay royalties to Microsoft
in order to interoperate with Microsoft's illegally maintained
monopoly products. If Microsoft had not engaged in its pattern of
illegal conduct, its monopoly would have begun to dissipate, and it
would have been unable to collect this
``interoperability'' tax. As the Department itself
previously recognized, ``[i]f Microsoft were in a competitive
market, it would disclose its confidential interface information to
other server software developers so that their complementary
software would work optimally with, and thereby enhance the value
of, Microsoft's PC operating systems.''\47\It is only
because Microsoft has illegally maintained its PC operating system
[[Page 28532]]
monopoly and wishes to expand its monopoly to server operating
systems that Microsoft has an incentive to withhold information from
competitors regarding complementary software. Thus, the RPFJ, in
effect, authorizes Microsoft to collect a portion of its monopoly
rents through this licensing regime.
---------------------------------------------------------------------------
\47\4/28/00 Plaintiffs'' Memo. in Support of
Proposed Final Judgment at 28.
---------------------------------------------------------------------------
Furthermore, not only is Microsoft authorized to collect
royalties for the ``privilege'' of interoperating with its
illegal monopoly, the RPFJ places no limits on how high a royalty
Microsoft can demand, other than the royalty must be reasonable.
However, since competitors'' products must be able to
interoperate with Microsoft's monopoly PC operating systems, they
may be constrained to essentially pay whatever Microsoft demands.
To ensure Microsoft does not continue to enjoy the fruits of its
illegal conduct, Section III.I of the RPFJ should be amended to
require Microsoft to grant any licenses required under the RPFJ on a
royalty-free basis.
B. Microsoft has too much discretion over licensing terms under
the RPFJ Although Section III.I of the RPFJ places some limitations
on the terms under which Microsoft must license its technology to
facilitate the disclosure obligations of the RPFJ, Microsoft retains
broad discretion, which it is likely to exploit.
For example, Section III.I. 1 requires that all license terms be
``reasonable.''
A reasonableness standard, however, provides little practical
guidance, and is a particularly poor choice in the case of a
monopolist like Microsoft who has repeatedly broken the law to
secure commercial advantages over its competitors. Similarly, the
fact that licenses must be ``non- discriminatory'' could
actually be exploited by Microsoft to ensure that its strongest
competitors are denied access to Microsoft's disclosures. For
instance, a small start-up company with no revenues and no existing
intellectual property rights might be willing to agree to terms that
would be commercially unacceptable to significant Microsoft
competitors like Sun, IBM, or Novell.
The terms of the RPFJ also allow Microsoft the ability to
substantially delay making any interoperability disclosures. Under
Section III.E, Microsoft does not even need to make its
Communications Protocols available until nine months after
submission of the RPFJ. But since Microsoft can insist that third
parties enter into a license agreement before they receive any
disclosures, Microsoft can continue to delay making disclosures to
key competitors by dragging out negotiations and insisting on
commercially unacceptable terms.
Does the Department intend to review ongoing negotiations to
ensure Microsoft is taking reasonable positions in the negotiations?
How will the Department ensure that Microsoft does not exploit the
negotiating process to facilitate delay and disadvantage key
competitors? Will Microsoft's ich Microsoft must license its
technology to facilitate the disclosure obligations of the RPFJ,
Microsoft retains broad discretion, which it is likely to exploit.
For example, Section III.I. 1 requires that all license terms be
``reasonable.''
A reasonableness standard, however, provides little practical
guidance, and is a particularly poor choice in the case of a
monopolist like Microsoft who has repeatedly broken the law to
secure commercial advantages over its competitors. Similarly, the
fact that licenses must be ``non- discriminatory'' could
actually be exploited by Microsoft to ensure that its strongest
competitors are denied access to Microsoft's disclosures. For
instance, a small start-up company with no revenues and no existing
intellectual property rights might be willing to agree to terms that
would be commercially unacceptable to significant Microsoft
competitors like Sun, IBM, or Novell.
The terms of the RPFJ also allow Microsoft the ability to
substantially delay making any interoperability disclosures. Under
Section III.E, Microsoft does not even need to make its
Communications Protocols available until nine months after
submission of the RPFJ. But since Microsoft can insist that third
parties enter into a license agreement before they receive any
disclosures, Microsoft can continue to delay making disclosures to
key competitors by dragging out negotiations and insisting on
commercially unacceptable terms.
Does the Department intend to review ongoing negotiations to
ensure Microsoft is taking reasonable positions in the negotiations?
How will the Department ensure that Microsoft does not exploit the
negotiating process to facilitate delay and disadvantage key
competitors? Will Microsoft's the Windows Operating System Product
should behave identically in its interaction with both the Microsoft
and non-Microsoft servers.''\40\
---------------------------------------------------------------------------
\40\CIS at 38.
---------------------------------------------------------------------------
* ``Section III.E. will permit seamless interoperability
between Windows Operating System Products and non-Microsoft servers
on a network. For example, the provision requires the licensing of
all Communications Protocols necessary for non-Microsoft servers to
interoperate with the Windows Operating System Products''
implementation of the Kerberos security standard in the same manner
as do Microsoft servers, including the exchange of Privilege Access
Certificates. Microsoft must license for use by non-Microsoft server
operating system products the Communications Protocols that Windows
Operating System Products use to enable network services through
mechanisms such as Windows server message block protocol/common
Internet file system protocol communications, as well as Microsoft
remote procedure calls between the client and server operating
systems.''\41\
---------------------------------------------------------------------------
\41\CIS at 38-;39.
---------------------------------------------------------------------------
* ``Section III.D of the proposed Final Judgment requires
Microsoft to disclose to ISVs, IHVs, IAPs, ICPs and OEMs all of the
interfaces and related technical information that Microsoft
Middleware uses to interoperate with any Windows Operating System
Product .... Microsoft will not be able to hamper the development or
operation of potentially threatening software by withholding
interface information or permitting its own products to use hidden
or undisclosed interfaces.''\42\
---------------------------------------------------------------------------
\42\CIS at 33.
---------------------------------------------------------------------------
In light of these comments, the Department appears to be
interpreting ``interoperate'' to mean the ability of two
different products to access, utilize, and support the full features
and functionality of one another. Under the Department's
interpretation, the disclosures would be of sufficient detail to
allow a non-Microsoft server operating system to implement the
Microsoft Communication Protocols in a manner such that the non-
Microsoft server operating system could be substituted for a
Microsoft server operating system without any disruption,
degradation, or impairment of all the features, functionality, and
services of any Microsoft PC operating system connected to such non-
Microsoft server operating system.
By contrast, in proceedings before the European Commission,
Microsoft has asserted a much narrower interpretation of
``interoperate'' than the Department's interpretation. In
that forum, Microsoft has maintained it already discloses all
information necessary to achieve interoperability between
Microsoft's PC operating system and non-Microsoft server operating
systems. Since Microsoft contends that they already disclose all of
the information necessary to satisfy this narrow definition of
``interoperate,'' if this definition were to prevail,
Microsoft will disclose nothing new. Its conduct will remain
unchanged.
Under Microsoft's narrow definition, interoperability is a one-
way street that is satisfied if all of the functionality of a non-
Microsoft server operating system can be accessed from a Windows PC
operating system. In contrast to the Department's position,
Microsoft has repeatedly taken the position that interoperability
does not require a disclosure sufficient to allow a Windows PC
operating system to behave identically when connected to both
Microsoft and non-Microsoft server operating systems. Moreover,
Microsoft has previously claimed that ``interoperability''
relates only to those protocols and interfaces which Microsoft has
chosen to document and make available to third parties, and should
not include protocols and interfaces that Microsoft reserves for
itself to use to connect its PC and server operating system
products. Absent an explicit definition of this critical term in the
RPFJ, Sun believes the disclosure provisions of the RPFJ are doomed
to fail. To avoid future disputes over the meaning of this term and
to ensure that the public actually receives a remedy that is
consistent with the
Department's representations in the Competitive Impact
Statement, Sun proposes that the RPFJ should be amended to include
the following definition:
``Interoperate'' or ``Interoperating'' means
the ability of two different products to access, utilize and/or
support the full features and functionality of one another in all of
the ways they are intended to function. For example, a non-
Microsoft operating system installed on a server computer
``Interoperates'' with a Windows Operating System Product
installed on a Personal Computer if such non-Microsoft server
operating system can (a) be substituted for a Microsoft operating
system running on a server computer connected to a Personal Computer
running a Windows Operating System Product, and (b) provide the user
of the non-Microsoft server operating system the ability to access,
utilize and/or support the full services, features and functionality
of the Windows Operating System Product that are accessed, utilized
and/or supported by such Microsoft server operating system without
any disruption, degradation or impairment in such services, features
and functions. C. The scope of Microsoft's ``Communication
Protocols'' disclosure should be clarified and exemplified
As a vendor of server operating systems that must connect and
communicate with Microsoft's monopoly PC operating system, the
disclosure and licensing provisions in Section III.E relating to
Microsoft's Communications Protocols are especially important to
Sun's business. Although the term Communications Protocols is
expressly defined, the RPFJ lacks any explicit examples regarding
which Microsoft technologies would currently be required to be
disclosed or what the extent of such disclosure would be in
practice. While the terms of the RPFJ must be written to anticipate
Microsoft's future conduct, there is no excuse for misunderstandings
regarding Microsoft's obligations with respect to known, existing
interoperability barriers. Because the technical terms surrounding
this provision are potentially subject to varying interpretations,
the RPFJ would be substantially improved if it gave better guidance
on how these provisions would actually be applied in practice.
For example, in its Competitive Impact Statement, the Department
identifies some of the specific protocols it believes Microsoft will
be required to disclose under Section III.E to the extent such
protocols are implemented in Microsoft's PC operating system
products, including: protocols relating to Microsoft's Internet
Information Services (``IIS'') web server and Active
Directory, Microsoft's implementation of the Kerberos security
standard (including the exchange of Privilege Access Certificates),
the Windows server message block protocol, the Windows common
Internet file system protocol, Microsoft remote procedure calls
between the client and server operating systems, and protocols that
permit a runtime environment (e.g., the Common Language Runtime) to
receive and execute code from a server.\43\
---------------------------------------------------------------------------
\43\CIS at 37-;39.
---------------------------------------------------------------------------
Microsoft, however, has refused to say whether it agrees with
the Department's interpretation. To avoid future disputes and ensure
that the parties agree on the kinds of protocols that will fall
within the scope of the term ``Communications Protocols,''
the RPFJ should be amended to identify
[[Page 28531]]
particular examples of protocols that Microsoft would be required to
disclose. Furthermore, in advance of entry of the RPFJ, Microsoft
should be required to fully detail what it will disclose with regard
to existing Communications Protocols that pose a barrier to
interoperability. At a minimum, the Department should require
Microsoft to identify any disagreements Microsoft has with the
Department's interpretation of this provision prior to entry of the
RPFJ. Unless the Department and Microsoft go through the exercise of
attempting to apply this provision in practice, the public cannot be
assured that there truly has been a ``meeting of the
minds'' regarding the scope and meaning of this important
provision.
Not only should the Department clarify the RPFJ with examples of
particular protocols that Microsoft currently would be required to
disclose, the Department also should clarify the kinds of
information Microsoft will be required to disclose regarding its
Communications Protocols. Although the term Communications Protocols
appears to be defined broadly in Section VI.B of the RPFJ, in
practice, the actual application of these provisions is likely to
give rise to many potential questions and disputes. For example,
* Is everything that is shipped with Microsoft Windows server
operating system products (e.g., Windows 2000 Server, Windows 2000
Advanced Server, etc.), including Microsoft's Active Directory or
IIS, part of the ``server operating system,'' and
therefore potentially the subject of disclosure to the extent it
comprises a ``Communications Protocol''?
* Are Active Directory, Kerberos security protocol, COM+, Dfs,
DLT, CIFS extensions, RPC, the Win 32 APIs, or Passport examples of
``Communications Protocols'' that must be disclosed and
licensed pursuant to Section III.E of the RPFJ?
* Where Microsoft has extended an industry standard like
Kerberos, will Microsoft be required to disclose both the standard
portion of its implementation and its proprietary extensions?
* Will Microsoft be required to disclose the details regarding
its proprietary implementation of the Kerberos security protocol in
Windows 2000 and Windows XP Professional, including the information
necessary for a non-Microsoft server to be able to generate,
exchange, and process the authentication and authorization data in
Privilege Access Certificates?
* What does ``make available for use by third
parties'' mean in practice in the context of Section III.E?
Will Microsoft be required to just disclose fields, formats, etc.,
or will it be required to disclose sufficient information to allow a
competitor to create its own implementation of the Communications
Protocol that will allow a competitor's server operating system to
seamlessly interoperate with the Windows PC operating system in the
same manner as a Microsoft server operating system?
Unless such questions are resolved and clarified in advance of
entry of the RPFJ, the disclosure and licensing obligations of
Section III.E will not provide any meaningful relief. D. The scope
of the ``carve-out'' provisions of Section III.J should be
clarified Particularly troubling to Sun is the possibility that the
``carve-out'' provisions of Section III.J might be broadly
construed by Microsoft to exclude many of the kinds of disclosures
that would otherwise fall within the scope of Sections III.D and
III.E. Section III. J. 1 provides that no provision of the Final
Judgment shall: [r]equire Microsoft to document, disclose or license
to third parties: (a) portions of APIs or Documentation or portions
or layers of Communications Protocols the disclosure of which would
compromise the security of a particular installation or group of
installations of anti-piracy, anti-virus, software licensing,
digital fights management, encryption or authentication systems,
including without limitation, keys, authorization tokens or
enforcement criteria .... (emphasis added).
In the Competitive Impact Statement, the Department
characterizes this exception as a ``narrow one, limited to
specific end-user implementations of security items such as actual
keys, authorization tokens or enforcement criteria, the disclosure
of which would compromise the security of ``a particular
installation or group of installations'' of the listed security
features.''\44\ But nowhere in the RPFJ is the term
``compromise the security of a particular installation or group
of installations'' defined. What will this provision mean in
practice? With respect to known interoperability problems relating
to Active Directory, Microsoft's Kerberos security model, Windows
Media Player, or the Passport authentication/authorization service,
what portions of those protocols and interfaces can Microsoft refuse
to disclose pursuant to this provision? If Microsoft refuses to
disclose such information, will competitors be able to fully
interoperate with all of the features and functionality of the
Windows operating system, or will the value of the disclosure
provisions be effectively eviscerated? What steps has the Department
taken to ensure that, in practice, this exception will not swallow
the intended effect of the disclosure provisions?
---------------------------------------------------------------------------
\44\CIS at 39.
---------------------------------------------------------------------------
Again, unless such questions are clarified in advance of entry
of the RPFJ, Microsoft is likely to use this purportedly narrow
exception to eviscerate its disclosure and licensing obligations
under the RPFJ. E. The definition of ``Microsoft Middleware
Product'' should be amended
The definition of ``Microsoft Middleware
Product''\45\ in the RPFJ is fundamentally flawed
because it grants Microsoft discretion to limit its obligations
merely based on the way it chooses to trademark its products. For
middleware functionality that is distributed after entry of the
Final Judgment, except for a small, specified class of middleware
applications (e.g., Internet browsers, email client software, etc.),
Microsoft's obligations under the RPFJ are not triggered unless it
chooses to distribute the middleware product under a trademark other
than ``Microsoft??'' or Functionality that Microsoft
describes or markets as being part of a Microsoft Middleware Product
(such as a service pack, upgrade, or bug fix for Internet Explorer),
or that is a version of a Microsoft Middleware Product (such as
Internet Explorer 5.5), shall be considered to be part of that
Microsoft Middleware Product.
---------------------------------------------------------------------------
\45\The RPFJ defines ``Microsoft Middleware
Product'' as follows: 1. the functionality provided by Internet
Explorer, Microsoft's Java Virtual Machine, Windows Media Player,
Windows Messenger, Outlook Express and their successors in a Windows
Operating System Product, and 2. for any functionality that is first
licensed, distributed or sold by Microsoft after the entry of this
Final Judgment and that is part of any Windows Operating System
Product a. Internet browsers, email client software, networked
audio/video client software, instant messaging software or b.
functionality provided by Microsoft software that--; i is, or in
the year preceding the commercial release of any new Windows
Operating System Product was, distributed separately by Microsoft
(or by an entity acquired by Microsoft) from a Windows Operating
System Product; ii. is similar to the functionality provided by a
Non-Microsoft Middleware Product; and iii. is Trademarked.
---------------------------------------------------------------------------
``Windows??.''\46\In other words, after entry
of the RPFJ, if Microsoft bundles its new middleware runtime
alternative to the Java platform, the .NET Framework (also known as
the Common Language Runtime) with Windows, it only would have to
make disclosures about the APIs used by the .NET Framework or allow
OEMs and consumers to remove access to it, if it chose to distribute
the .NET Framework under the trademarked name ``.NET
Framework.'' If it simply distributed the product under the
name ``Microsoft* .NET Framework,'' its activities would
appear to be unconstrained by the RPFJ. To allow Microsoft to evade
its obligations under the RPFJ based on arbitrary trademarking
practices is absurd.
---------------------------------------------------------------------------
\46\See RPFJ, Sections VI.K and VI.T.
---------------------------------------------------------------------------
To avoid this result, the definition of ``Microsoft
Middleware Product'' should be amended as follows: the
``Trademarked'' requirement of Section VI.K.2.b.iii should
be stricken; the terms ``.NET Framework'' and
``Common Language Runtime'' should be added to Section
VI.K.1; and the term ``middleware runtime environment''
should be added to Section VI.K.2.a.
V. Section III.I's Licensing Provisions Allow Microsoft to
Profit from Its Unlawful Acts
A. Microsoft should not be allowed to demand royalties as a
condition for making interoperability disclosures
The licensing provisions of the RPFJ are fundamentally flawed
because they would require the public to pay royalties to Microsoft
in order to interoperate with Microsoft's illegally maintained
monopoly products. If Microsoft had not engaged in its pattern of
illegal conduct, its monopoly would have begun to dissipate, and it
would have been unable to collect this
``interoperability'' tax. As the Department itself
previously recognized, ``[i]f Microsoft were in a competitive
market, it would disclose its confidential interface information to
other server software developers so that their complementary
software would work optimally with, and thereby enhance the value
of, Microsoft's PC operating systems.''\47\It is only
because Microsoft has illegally maintained its PC operating system
[[Page 28532]]
monopoly and wishes to expand its monopoly to server operating
systems that Microsoft has an incentive to withhold information from
competitors regarding complementary software. Thus, the RPFJ, in
effect, authorizes Microsoft to collect a portion of its monopoly
rents through this licensing regime.
---------------------------------------------------------------------------
\47\4/28/00 Plaintiffs'' Memo. in Support of
Proposed Final Judgment at 28.
---------------------------------------------------------------------------
Furthermore, not only is Microsoft authorized to collect
royalties for the ``privilege'' of interoperating with its
illegal monopoly, the RPFJ places no limits on how high a royalty
Microsoft can demand, other than the royalty must be reasonable.
However, since competitors'' products must be able to
interoperate with Microsoft's monopoly PC operating systems, they
may be constrained to essentially pay whatever Microsoft demands.
To ensure Microsoft does not continue to enjoy the fruits of its
illegal conduct, Section III.I of the RPFJ should be amended to
require Microsoft to grant any licenses required under the RPFJ on a
royalty-free basis.
B. Microsoft has too much discretion over licensing terms under
the RPFJ Although Section III.I of the RPFJ places some limitations
on the terms under which Microsoft must license its technology to
facilitate the disclosure obligations of the RPFJ, Microsoft retains
broad discretion, which it is likely to exploit.
For example, Section III.I. 1 requires that all license terms be
``reasonable.''
A reasonableness standard, however, provides little practical
guidance, and is a particularly poor choice in the case of a
monopolist like Microsoft who has repeatedly broken the law to
secure commercial advantages over its competitors. Similarly, the
fact that licenses must be ``non- discriminatory'' could
actually be exploited by Microsoft to ensure that its strongest
competitors are denied access to Microsoft's disclosures. For
instance, a small start-up company with no revenues and no existing
intellectual property rights might be willing to agree to terms that
would be commercially unacceptable to significant Microsoft
competitors like Sun, IBM, or Novell.
The terms of the RPFJ also allow Microsoft the ability to
substantially delay making any interoperability disclosures. Under
Section III.E, Microsoft does not even need to make its
Communications Protocols available until nine months after
submission of the RPFJ. But since Microsoft can insist that third
parties enter into a license agreement before they receive any
disclosures, Microsoft can continue to delay making disclosures to
key competitors by dragging out negotiations and insisting on
commercially unacceptable terms.
Does the Department intend to review ongoing negotiations to
ensure Microsoft is taking reasonable positions in the negotiations?
How will the Department ensure that Microsoft does not exploit the
negotiating process to facilitate delay and disadvantage key
competitors? Will Microsoft's middleware products. It does nothing
directly to dislodge Microsoft's PC operating system monopoly or to
restore the market for PC operating systems to the competitive
dynamics the market would have possessed ``but for''
Microsoft's illegal conduct. \8\
---------------------------------------------------------------------------
\8\Findings of Fact, 84 F. Supp. 2d at 54
(stating that ``[w]ithout significant exception, all OEMs pre-
install Windows on the vast majority of PCs that they sell, and they
uniformly are of a mind.D. The loopholes in the RPFJ must be
eliminated and its important ambiguities clarified
---------------------------------------------------------------------------
While promising in principle, the disclosure remedies in the
RPFJ (Sections III.D. and III.E) are likely to fail in practice to
achieve the procompetitive objectives identified by the United
States Justice Department (the ``Department'') in its
Competitive Impact Statement. Key provisions in the RPFJ contain
critical loopholes and glaring ambiguities. Given Microsoft's past
disdain for compliance with the strictures of its prior antitrust
consent decree with the Department, these ambiguities will likely
lead to future litigation, particularly since Microsoft has
repeatedly refused to answer any questions regarding whether it
agrees or disagrees with the interpretations of the RPFJ proposed by
the Department in the Competitive Impact Statement. Instead, it is
clear that Microsoft's strategy icompetitors be forced to sign
license agreements before they know the scope of information that
Microsoft will or will not disclose? Does the Department expect that
the proposed Technical Committee will be involved in resolving such
disputes? If so, will Technical Committee members have the requisite
licensing and legal experience to assess whether Microsoft is
insisting upon commercially unreasonable terms?
To ensure Microsoft cannot circumvent the intent of the RPFJ,
Sun proposes that the RPFJ be amended to include a publicly
available template identifying the terms under which Microsoft will
license its technology pursuant to the RPFJ. In principle, this
approach is analogous to Section III.B which requires Microsoft to
have uniform license agreements with OEMs in accordance with
published, uniform royalty rates. Requiring Microsoft to identify
this license template in advance would serve two important
objectives. First, it would help limit Microsoft's ability to evade
the intent of the RPFJ through negotiation tactics. Second, it would
allow the public to understand the true costs and conditions of
licensing under the RPFJ in advance of entry of the RPFJ. Unless the
material licensing terms are specified in advance, neither the
Department nor the public can accurately assess the actual
commercial significance of the proposed disclosure obligations.
C. Microsoft should not be allowed to force third parties to
forfeit their intellectual property claims against Microsoft
Section 111.1.5 provides that third parties ``may be
required to grant to Microsoft on reasonable and nondiscriminatory
terms a license to any intellectual property rights it may have
relating to the exercise of their options or alternatives provided
by this Final Judgment.'' In other words, Microsoft would be
free to infringe a third party's patents or copyrights, or steal its
trade secrets, and then by virtue of its monopoly position, force
such third party to grant Microsoft a license to do so as the price
that third party must pay in order to interoperate with Microsoft's
monopoly product. If Microsoft wished to obtain rights to practice
or use a competitor's intellectual property, it could do so simply
by incorporating that technology into Windows, then insisting on
both a royalty and a grant-back license as the consideration that
competitor must provide in order to enable its products to
interoperate with Microsoft's monopolized PCs.
Indeed, Microsoft's competitors would have to license Microsoft
the right to whatever intellectual property Microsoft may have
incorporated into Windows even before they know what intellectual
property Microsoft has stolen or infringed. No other company has
such power, let alone governmental blessing and endorsement, to
extort such concessions.
Sun therefore proposes that the RPFJ be amended to strike
Section 111.I.5 in its entirety.
VI. Conclusion
The RPFJ fails to remedy the continuing competitive harm
resulting from Microsoft's actions, and instead improperly accedes
to Microsoft's illegally maintained and expanded monopoly power. The
Department should withdraw its support for the RPFJ, and instead
pursue remedies that will restore competition to the PC operating
system market, prevent Microsoft from expanding its monopoly in that
market into adjacent and downstream markets, and redress the harm to
competition caused by Microsoft's illegal acts. At a minimum, the
Department should seek to remedy directly the specific harm to
competition caused by Microsoft's illegal acts against the Navigator
browser and the Java platform, which formed the very heart of the
Department's case against Microsoft.
Because critical terms in the RPFJ are undefined or ambiguous,
the Department also should assure the public that Microsoft is bound
by the interpretation of the RPFJ set forth in the Department's
Competitive Impact Statement.
Finally, the Department should delay seeking entry of the RPFJ
until the completion of trial on the remedies sought by the
Department's co-plaintiffs, the Litigating States. Sun believes that
the evidentiary record from that trial is likely to demonstrate the
substantial flaws and inadequacies of the RPFJ and cause the
Department to seriously re-consider whether its support for the RPFJ
is in the public interest.
Table of Contents
Page
No.
I. Introduction.................................................. 1
A Competition in the market for PC operating systems must be 2
restored......................................................
B. Microsoft's unlawful power to exclude competition in 4
adjacent and downstream markets must be stopped and eventually
dissipated....................................................
C. The RPFJ fails to remedy the monopoly illegally maintained 5
by Microsoft..................................................
D. The loopholes in the RPFJ must be eliminated and its 7
important ambiguities clarified...............................
II. Sun Microsystems'' Interest Regarding the Terms of the 8
RPFJ............................................................
III. The RPFJ Fails To Remedy the Continuing Harm to Competition 9
Caused By Microsoft's Illegal Acts..............................
A. The RPFJ fails to dissipate Microsoft's monopoly power in 9
the market for PC operating systems...........................
1. The Department previously acknowledged that an effective 10
remedy had to eliminate the applications barrier protecting
Microsoft's monopoly........................................
[[Page 28533]]
2. The RPFJ fails to address the effects of Microsoft's 13
distribution power..........................................
3. The RPFJ does little more than attempt to enjoin Microsoft 15
from continuing to engage in the conduct already found to be
unlawful....................................................
4. The RPFJ assumes that Microsoft's Windows distributors 16
will promote competitive middleware products................
B. The RPFJ does not remedy the continuing competitive harm to 19
web browsers..................................................
C. The RPFJ does not remedy the substantial harm to competition 22
caused by Microsoft's illegal acts against the Java platform..
IV Critical Terms In The RPFJ Are Undefined or Ambiguous......... 24
A. Significant ambiguities in the RPFJ must be cured to avoid 24
further litigation............................................
B. ``Interoperate'' and 27
``interoperating'' must be defined................
C. The scope of Microsoft's ``Communication 30
Protocols'' disclosure should be clarified and
exemplified...................................................
D. The scope of the ``carve-out'' provisions of 32
Section III J should be clarified.............................
E. The definition of ``Microsoft Middleware Product'' 34
should be amended.............................................
V. Section III I's Licensing Provisions Allow Microsoft to Profit 35
from Its Unlawful Acts..........................................
A. Microsoft should not be allowed to demand royalties as a 35
condition for making interoperability disclosures.............
B. Microsoft has too much discretion over licensing terms under 36
the RPFJ......................................................
C. Microsoft should not be allowed to force third parties to 38
forfeit their intellectual property claims against Microsoft..
VI. Conclusion................................................... 39
MTC-00029176
From: Eric Harden
To: Microsoft Settlement
Date: 1/28/02 9:21pm
Subject: Microsoft Settlement
Eric Harden
105 LaFavers Road
Russell Springs, KY 42642
January 28, 2002
Microsoft Settlement
U S Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry
It is high time for this trial, and the wasteful spending
accompanying it, to be over Consumers will indeed see competition in
the marketplace, rather than the courtroom And the investors who
propel our economy can finally breathe a sigh of relief
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation
Competition means creating better goods and offering superior
services to consumers With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies
Thank you for this opportunity to share my views
Sincerely,
Eric Harden
MTC-00029177
From: Tom Burke
To: Microsoft ATR
Date: 1/28/02 9:28pm
Subject: Microsoft Settlement
I have been associated with the computer revolution since the
early 1960's I have seen the growth and witnessed through my work on
the Space Program the tremendous things that can be done with the
computer Attached is a letter expressing my sincere thoughts that
the current Microsoft Settlement is fir and should be implemented
without futher delay
Please feel free to contact me if needed
Thomas A Burke
Phone: 321-;259-;2284
E-Mail: tburk6@cfl rr com
Melbourne, Florida 32935
28 January 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr Ashcroft:
I have been associated with the computer revolution since the
early 196's I have seen the growth and witnessed through my work on
the Space Program the tremendous things that can be done with the
computer My graduate work dealt with many papers, which visualized
the many possibilities that computers offered to civilization Re-
reading these notes today I see that I did not come close to
understanding what the computer revolution held for our society
Thank God for visionaries associated with Microsoft who have taken
conceptual ideas not dreamed of in the early days of computers and
made them into today/Es standards Looking ahead for the next forty
years I firmly believe that we will see that we have only begun to
scratch the surface of what technology and social development driven
by computers can achieve Most of the growth of this revolution has
occurred during the past 10 years when Microsoft released the power
of the computer and the Internet through the introduction of the
Windows operating System pIt would be a crime of the greatest
magnitude to stymie this innovation because competitors lack the
vision to move with the concepts being developed for our future The
government rather than holding back these ideas should recognize
that this technology has reached this pinnacle without major
government intervention Why start now?
Microsoft is a good company and I was very glad when the
antitrust lawsuit filed against them was finally settled There is no
need for further litigation in this issue I truly believe that the
resolution is both fair and in the interest of the people of this
country
The provisions of this settlement are unique to this type of
lawsuit This is the first lawsuit ever that requires a company to
disclose internal information about its interfacing new software
with its current systems The Microsoft settlement also includes
provisions that restrict Microsoft from entering into any kind of
agreements that would limit competition among software companies
This settlement truly addresses all the concerns of the people, and
keeps competition viable within this market
But clever people like me who talk loudly in restaurants, see
this as a deliberate ambiguity A plea for justice in a mechanized
society.
I see no need for further litigation Vast amounts time and
resources have already been spent on pursuing Microsoft and I think
it's time that no more be used The resolution now on the table is a
fine one I urge you to support it and let it stand as is I thank you
for your time and I am sure that you will do what you feel is best
for people and economy of this country
But is suspense, as Hitchcock states, in the box No, there isn't
room, the ambiguity's put on weight.
Sincerely,
Thomas Burke
MTC-00029179
From: Joyce Greer
To: Microsoft Settlement
Date: 1/28/02 9:21pm
Subject: Microsoft Settlement
Joyce Greer
45 Northridge Dr.
Cody, Wy 82414
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
[[Page 28534]]
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joyce Greer
MTC-00029180
From: James B. Rassi
To: Microsoft Settlement
Date: 1/28/02 9:22pm
Subject: Microsoft Settlement
James B. Rassi
111 Schramm Drive
Pekin, IL 61554-;2539
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competions means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
James B. Rassi
MTC-00029181
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:29pm
Subject: Microsoft settlement
Let them off the hook. They and their stock holders have
suffered enough. Let the lawyers seek new bait.
Ed Brant
MTC-00029182
From: Gil Friend
To: Microsoft ATR
Date: 1/28/02 9:27pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
United States Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
I am writing to comment on the proposed Microsoft/DOJ anti-trust
settlement. As a business executive at a company both highly
dependent on computing technology and specifically involved in
software development, I've come to the conclusion that this
settlement is not in the public interest, and fails to remedies the
problems that provoked the action in the first place.
The settlement leaves the Microsoft monopoly intact, with
numerous opportunities to the company to effectively exempt itself
from crucial provisions. The recently proposed
``donation'' to schools is just one example of how
Microsoft can turn matters to their own advantage (in this case by
decimating Apple's position in the education market).
In addition, the proposed settlement fails to address the
critical ``applications barrier to entry'' associated with
the installed base of 70,000 Windows applications, enabling
Microsoft to maintain an effective ``lock'' on the
operating systems market by denying competitors with other operating
systems the information needed to run these other applications on
other operating systems. Any settlement must make it
easier--;not harder--;for competitors to run the Windows
applications.
Consumers, not Microsoft, should decide what products are on
their computers. The settlement must eliminate Microsoft's various
barriers--;business and technical--;to allowing combinations
of non-Microsoft operating systems, applications, and software
components to run properly with Microsoft products.
The remedies proposed by the Plaintiff Litigating States are in
the public interest and absolutely necessary, but they are not
sufficient without these remedies.
The Tunney Act provides for the Court to hold public
proceedings, with citizens and consumer groups afforded an equal
opportunity to participate, along with Microsoft's competitors and
customers. I hope you will encourage those proceedings, and consider
carefully how to proceed in this matter. Your decisions have great
significance for the health of the US economy's most vital
industries, by eliminating Microsoft's ability to illegal constrain
markets and innovation.
Thank you for the opportunity to comment on this important
matter.
Sincerely yours,
Gil Friend
President & CEO
Natural Logic, Inc.
PO Box 119
Berkeley CA 94701
MTC-00029183
From: Steve Mueller
To: Microsoft ATR
Date: 1/28/02 9:28pm
Subject: Microsoft Settlement
Hi:
I'm writing about the proposed settlement between Microsoft and
the U.S. government (and some of the states). I am a professional
software developer with BS and MS degrees in Computer Science from
the University of Michigan, Ann Arbor. My last four jobs over six
years have been writing programs for Microsoft's Windows operating
system. I am not affiliated with Microsoft or any companies lobbying
for responses. I hope it isn't too late to consider my comments; it
is still Monday here on the West Coast.
I feel the settlement is inadequate. Microsoft's anti-
competitive behavior has been proven in court and upheld on appeal.
Microsoft had previously entered into a consent decree with the
government in the mid-90s (I believe), and still was found to be
anti-competitive. Clearly, this is a company that doesn't learn and
doesn't care.
As a professional software developer, I know what an operating
system is supposed to do. It is supposed to manage low-level
computer resources (memory, files, peripherals, networking, etc.),
and it is to provide a platform on which applications can be
written. It does *not* contain applications itself, although I have
no problems with the inclusion of simple applications to allow the
operating system to be useful (such as Notepad, Write, Calculator
and Solitaire in Windows).
Microsoft contends, for example, that the Internet Explorer Web
browser is a basic part of the operating system. If it is, that is
*only* because Microsoft forced it to be. There is no intrinsic
reason for the browser to be included as part of the operating
system. As a software developer, though, I could easily combine any
two functions that are normally not related into one file and then
claim that I could not remove one piece without damaging the other,
and so Microsoft's protestations to that effect seem disingenuous at
best.
In fact, when Windows 95 was first released, Internet Explorer
was not part of the operating system, but was included in the
Windows 95 Plus Pack, so at one time the separation was possible. If
it is not now possible, it is only because the program was
intentionally written to make it difficult to remove.
Microsoft could include the low-level functions (the API) to
support Web browsing in the operating system without including
[[Page 28535]]
the Internet Explorer browser itself as an application. Microsoft is
shading the truth if they claim the API and low-level support and
the browser application and user interface are one and the same.
Furthermore, not only does Microsoft have a proven monopoly in
the operating system area, but they also have a de facto monopoly in
office software. Note that even though office software is just as
important as Web browsing, Microsoft does not include its Office
suite of products in Windows 9x/ME/XP. Why not? Because Office
already has a clear market lead and is extremely profitable, so
there's no need to bundle it with Windows.
Internet Explorer was a distant second to Netscape at one time,
so Microsoft started including it in the operating system, not even
in a Plus Pack. This resulted in Netscape losing market share as
Internet Explorer was a browser that was good enough for most
people.
Also note that Microsoft's Office suite had an example of
bundling. At one point, Microsoft PowerPoint was not the leading
presentation package (Lotus and Harvard Graphics had superior
solutions), so Microsoft bundled it into Office. While you can buy
the Office applications separately, it is not economical to do so.
Finally, let me focus on one more anti-competitive move
Microsoft--; the removal of Java from Windows XP. Java had been
included in previous versions of Windows, but has been removed from
Windows XP. Doesn't it seem odd that Microsoft can so easily remove
Java from Windows XP, but claims that Internet Explorer can't be
removed?
This removal has little to do with Java not being
useful--;many Web sites use Java. It is more likely a
combination of Microsoft trying to get back at Sun for losing when
Sun sued Microsoft for incorporating non-standard Java features in
Microsoft's implementation of Java (contrary to their agreement),
and a way to promote using Microsoft technologies for improved
browser experiences (ActiveX controls or C#, for example).
Microsoft's Passport and .NET services will rely on C# (and,
in fact, I've read that Passport is now bundled in Windows XP,
providing yet another source of monopolistic concerns for identity
validation on the Internet).
Therefore, given that Microsoft has engaged in anti-competitive
practices in the past, continued to do so after a consent decree,
and (in my opinion) is still doing so, I believe that Microsoft
needs to be punished severely and quickly. I suggest breaking
Microsoft into two or three companies--;one dealing with the
Windows operating system; one dealing with applications, including
Office; and possibly one dealing with Internet software and
technologies, like Internet Explorer, Passport, WebTV and MSN.
If such a break up is not considered appropriate, the dissenting
states'' plan sounds like a reasonable second alternative,
although I would add the requirement that the Internet Explorer
browser (the application and user interface parts, not the low-level
networking and browsing APIs) be removed from all base versions of
Windows (Microsoft would be free to sell a ``premium''
version that included Internet Explorer, much like they have Windows
XP Home and Professional editions).
Thank you for taking the time to read these comments,
Steve Mueller
Monday, 1/28/2002, 6:09 PM PST
MTC-00029184
From: Rick Zahn
To: Microsoft ATR
Date: 1/28/02 9:28pm
Subject: Opinion
I believe the only real ``crime'' Microsoft has
committed is producing a product that it is at the same time
superior and cheaper than the products offered by their competitors.
By punishing Microsoft, we are, in essence, sending the message that
it is better to produce an inferior product and then hire a lawyer
to force people to buy.
Frederick Zahn
MTC-00029185
From: Robert Wigger
To: Microsoft ATR
Date: 1/28/02 9:28pm
Subject: Microsoft Settlement
I am writing this note to ask that you would support the
Microsoft Settlement.
Thank you,
Robert Wigger
MTC-00029186
From: gegco
To: Microsoft ATR
Date: 1/28/02 9:29pm
Subject: In Support of Microsoft
5217 Starwind Point
Hermitage, TN 37076
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The purpose of this letter is to voice my support of the
Microsoft settlement. As a concerned citizen, I watched the case
against Microsoft with great interest. Three years have now passed
since the inception of this case. During this time, I have been
increasingly annoyed by the amount of money wasted in disputing this
issue. The court mediated settlement agreement reached last November
is very equitable. I would hope that the Justice Department
recognizes this and enacts the settlement at the end of January.
Further, I believe that the terms of the settlement will provide for
great change in the tech industry. Under the stipulations of the
agreement, Microsoft will disclose the protocols and interfaces of
the Windows system. The result of this action will be to enable
software and hardware developers to design new software that
assimilates into the Windows operating system. This should increase
productivity in the sector.
Finally, I would hope that the federal government decides to
enact the settlement reached in November.
Thank you.
Sincerely,
Gayle E. Gotshall
Gayle Gotshall
MTC-00029187
From: Grace Fortuna
To: Microsoft Settlement
Date: 1/28/02 9:23pm
Subject: Microsoft Settlement
Grace Fortuna
20820 Persimmon Place
Estero, FL 33928
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Grace Fortuna
MTC-00029188
From: Dave Zapple
To: Microsoft ATR
Date: 1/28/02 9:30pm
Subject: Microsoft Settlement
Date: January 28, 2002
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
To Whom it may concern,
I have worked in the information technology industry for 18+
years. Currently, I'm a senior systems analyst with Georgetown
University. I disagree with the settlement that the Department of
Justice has brokered with microsoft and feel that it does NOT
addresscompletely/ restrict the anti competitive practices that
microsoft has made extensive use in the past or today.
The fact that the settlement does not remove ANY of the monies
or competitive edges that microsoft gained by using anti
competitive/illegal practices should be enough to not allow this
settlement to happen in its current form.
I believe in free enterprise and competition dearly, which is
why I can not agree with this
[[Page 28536]]
settlement. Where was the freedom to compete when microsoft used
illegal practices to crush young company's that did in fact have
innovative products? Where is/was the justice for these former
companies and technologies?
There are a number of very serious issues involved with
microsofts illegal practices that can not be allowed to continue if
America is going to continue to be a/the technology leader in the
future.
Please do allow this settlement to stand in the form it is in
currently, it will prove devastating to the computing industry in
this country in the future I am sure. If you would like more
information from me, or if I need to be more specific please let me
know and I will be more than happy to.
Sincerely,
Dave Zapple
David Zapple
214 Manassas Drive
Manassas Park, VA. 20111
[email protected]
H 703-;369-;0358
W 202-;687-;2958
C 703-;898-;1958
Dave Zapple
Senior Systems Analyst
Advanced Research Computing (ARC)
Office of Information Services
Georgetown University
PreClinical Science Bulding, LB-1
3900 Reservoir Road, NW
Washington, DC. 20007
Voice : 202-;687-;2958
FAX : 202-;687-;2585
E-Mail: [email protected]
MTC-00029189
From: Faye Bourret
To: Microsoft ATR
Date: 1/28/02 9:32pm
Subject: Microsoft Settlement
Tunney Act review
Please accept the following comments in your review:
As a consumer of computer products, I ask that the Court accept
the settlement terms as currently presented by the Department of
Justice, the states Attorneys General, and Microsoft. Microsoft has
provided me, the consumer, with software products that are
integrated. This is what I want as a consumer because the
alternative, a number of products upon which I would need to do the
integration, is not a product I want to buy.
Microsoft has led the drop in prices of consumer software
products over the past 10 years. It's competitors have been
compelled to follow. This leadership by Microsoft has been an
advantage to the consumers. An example most recently is the action
which Sun took to drop the prices of its servers to a price point
that would allow it to compete with comparable Microsoft products.
The consumer is and has been the winner when Microsoft has competed
vigorously.
Sincerely,
Faye Bourret
MTC-00029190
From: Dan Eisenberg
To: Microsoft Settlement
Date: 1/28/02 9:28pm
Subject: Microsoft Settlement
Dan Eisenberg
1465 Morning Crescent St
Henderson, NV 89052-;4040
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dan Eisenberg MD
MTC-00029191
From: Doug Needham
To: Microsoft ATR
Date: 1/28/02 10:44pm
Subject: Microsoft Settlement
To Whom it May Concern
Pursuant to the Tunney Act, I am writing to comment on the
proposed settlement of the United States vs. Microsoft antitrust
case. My Background is in software development. I have been a
software developer since I ended my enlistment in the Marine Corps.
One of the things that disturbs me about the proposed settlement is
that it does very little to actually stop Microsoft from continuing
to do the things that they have done. I remember a time when it was
possible for a person with a good Idea and some programming ability
to create something new and begin to package and sell a unique
software product . It is still possible to do this so long as you
pledge allegiance to Microsoft and pay them exporbitant fees as the
price of entry into the professional development communtiy. The
productst they make are not the best, they are the only thing out
there because so many businesses refuse to build any software
product on a non-Microsoft solution. Where are the compilers for
Windows applications? They do not exist because software projects
that attempted to produce a competing product where cut off by
Microsofts changing or not fully documenting their Application
Programming Interface (API). Microsoft has repeatedly and
unashamedly refused to obey orders given to them by the DOJ. They
laugh at the governments power to stop them. They do not respect
lawful authority and fair competition. This has got to be stopped.
Please count this as a no vote on the proposed settlement and a yes
vote to the independent software developers who will be allowed to
develop unique non-Microsoft solutions to business problems, and
then actually have an opportunity to sell their solutions to
corporate America without fear of incompatibilities.
Sincerely,
Doug Needham
Independent Software Consultant.
MTC-00029192
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:34pm
Subject: Microsoft Settlement
The Attorney General
From everything I have read on this subject Microsoft has gone
beyond the findings of the Court of Appeals ruling,it is fair to all
involed. I also beleive it is in the public interest for a
settlement at this time.
Oliver Gumley
Anna Gumley
MTC-00029193
From: John Trueblood
To: Microsoft Settlement
Date: 1/28/02 9:26pm
Subject: Microsoft Settlement
John Trueblood
8916 196 th. Street
McAlpin, Fl 32062
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
[[Page 28537]]
Sincerely,
John Trueblood
MTC-00029194
From: John G. Williams
To: Microsoft Settlement
Date: 1/28/02 9:26pm
Subject: Microsoft Settlement
John G. Williams
407 Diamond Oaks Dr.
Vacaville, CA 95688-;1039
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
John & Faye Williams
MTC-00029195
From: dennis huard
To: Microsoft ATR
Date: 1/28/02 9:33pm
Subject: settlement Gentlemen,
This case is about money. Make no bones about it. (I only wish I
had some of it- the money not the bones.) If there were utopia, we
would all be in heaven and not have to lift a finger. Apple, Sun and
several others wish they had something they dont- a bigger piece of
the pie.
However, since we live in a real world of World Trade Center
bombers, I can only say that we can not all start from ground zero
and build over again. I think it would be self destructing to
believe that we could knock down one of he the biggest symbols of
American business like there was nothing to it and not feel some
remorse.
I am one for competition and fair play. This has been the
cornerstone of the American way of life since before the time I
participated in Little League. There were many times that I wished
that I had been better than the person that won out at my position.
I would have given anything to be as good. However, I found plenty
to do and feel good about my place in society wtihout having to be
the top dog at what I do (although I still try).
In all due respects to the participants including Big M, life
(including business) is complex. To the best interests of this
country and the long term picture of mutual cooperation, we should
try to meet a level of mutual understanding. However, I don't think
that this includes giving everthing away that one has worked so hard
for. In some unkown situatons, it may jeopardize one's own
existence. After all, today's hot technology is tomorrow's burnt
toast (and it doesn't take much).
All do respects and your humble servent,
Browd Owner of a Mac
MTC-00029196
From: Joseph Schwartz
To: Microsoft ATR
Date: 1/28/02 9:35pm
Subject: Microsoft Settlement
1/28/2002
Joseph L. Schwartz
2116 Lombard St.
Phila, PA 19146
215-;985-;1047
[email protected]
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW Suite 1200
Washington, DC 20530-;0001
[email protected]
I want to register my comments on the Microsoft Antitrust Case.
I believe the agreement is reasonable and fair to all parties
involved. The settlement is in the best interest of everyone and
allows the industry to move forward. I urge the Justice Department
to settle this case.
Sincerely yours,
Joseph L. Schwartz
MTC-00029197
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:36pm
Subject: Microsoft Settlement
From: James B. Callahan, Orlando, FL (407) 234-;3744
I am a Microsoft Certified Systems Engineer in Orlando, Florida.
I looked into the possibility of our local school system, Orange
County Public Schools (OCPS) receiving software in schools where 70%
or more of the students participate in the school lunch program. My
concern is that donation of software which can be used as clients
does not trigger additional (Microsoft) licensing fees.
Specifically, I am concerned about a licensing fee known as
``Client Access Licenses (CAL)'' that might be required if
a new computer at a disadvantaged school accesses a centralized
server at school board headquarters for file and print sharing (MS
Windows 2000 Server) e-mail (MS Exchange), database (MS SQL Server)
or thin client (MS Terminal Services).
I would like to see Microsoft CALs explicitly included in the
software donation. I would hate to see ``free'' or low
cost computers costing the school system thousands or dollars in CAL
fees or alternatively, disadvantaged schools missing out on the
benefits of centralized school board services. As to the larger
question of the suitability of the entire remedy; that depends on
what specifically was alleged in court and proven in court. In
theory, I could support a drastic structural remedy based on what I
have read in the trade press over they decades. As a practical
matter most of what was alleged over the years in the trade press;
was not alleged, let alone proven, in court.
Therefore, I will try to do the best that I can for our local
schools--;even through my impression is that the antitrust suit
as a whole was a fiasco on all sides.
James B. Callahan (Jim) MBA, BA Economics & MCSE
1927 Grand Isle Circle, #723-B
Orlando, FL 32810
(407) 234-;3744
CC:[email protected]@
inetgw
MTC-00029198
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:36pm
Subject: MISROSOFT SETTLEMENT
MICROSOFT HAS DONE MORE THEN ANY ORHER CO. TO MAKE IT EASIER FOR
ME TO USE THE COMPUTER AND THEIR PROGRAMS RUN I CANT SAY THAT FOR
ANY OTHER CO. GIT OFF THEIR BACK.
FRED HEFTON
MTC-00029199
From: Peggy Ann Carrick
To: Microsoft Settlement
Date: 1/28/02 9:31pm
Subject: Microsoft Settlement
Peggy Ann Carrick
3901 E. Pinnacle Pk #339
Phx., AZ 85050-;8126
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue,
NW Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
[[Page 28538]]
Thank you for this opportunity to share my views.
Sincerely,
Peggy Ann Carrick
MTC-00029200
From: Robert Schleiger
To: Microsoft ATR
Date: 1/28/02 9:36pm
What is the most recent antitrust issues regarding microsoft?
MTC-00029201
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:37pm
Subject: Microsoft Settlement
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D. Street NW, Suite 1200
Washington, DC 20530-;0001
Now that an agreement has been made, I believe that we need to
move forward and let Microsoft do what they need to do. I feel that
it would be wrong to reject this settlement. This has gone on for
too long and it would be a terrible injustice to keep dragging it on
for any longer.
Sincerely,
Richard L. Trantham
MTC-00029202
From: Greg G. Arakelian
To: Microsoft ATR
Date: 1/28/02 9:38pm
Subject: Microsoft Settlement
REQUIRE MICROSOFT TO PUBLISH ALL ``FILE FORMATS''
SPECIFICATIONS: It is imperative that Microsoft release detailed
technical ``file format'' specifications to the public.
We, the companies that compete with Microsoft, can do so, if we
can build products which work well with the files people currently
use (i.e. Microsoft Word documents, Microsoft Excel files, and so
forth).
Microsoft should be required to publicly document
``all'' files used by ``all'' of their
application. If in fact, WordPerfect corporation had not published
their file format specification many years ago, Microsoft Word would
have had a much harder time gaining acceptance in the marketplace
since WordPerfect files were the defacto standard file format.
People may be willing to switch products, but they need to be able
to take their data with them. That is the ``real'' way
Microsoft keeps people imprisoned.
Thanks for listening,
Greg
MTC-00029203
From: --;
To: Microsoft ATR
Date: 1/28/02 9:38pm
Subject: Microsoft Settlement
Hello--;
Thank you for the opportunity to express my opinion on the
proposed antitrust settlement against Microsoft Corporation.
I sincerely believe that Microsoft has a long and demonstrated
history of un-ethical behavior towards its competitors, its business
partners, and the general public. To try and stop some of the most
egregious of these behaviors, I would recommend:
1) That Microsoft be split into 3 separate companies:
A) Operating Systems
B) End-User Applications (Microsoft Office, Money, TripMaker,
games, etc.....)
C) Development Tools (Computer languages, databases, etc...)
Each company should be a separate and distinct entity, with
separate management, board of directors, etc. All interface
information ( API--; Application Program Interface ) shall be
made public to all software development companies. In other words,
there shall be no ``hidden'' or ``undocumented''
functions or features which allow one Microsoft company an unfair
advantage over any other competitor, due to intimate knowledge of
the workings of another Microsoft company's products, which other
companies do not have access to.
2) Bill Gates, Paul Allen, Steve Balmer, and other current top-
level management should be transferred to the Development tools
company. They can own stock in the other two companies, but should
be prohibited from ANY other activities in the other two companies
for a period of at least 10 years.
3) All Microsoft contracts and agreements which require the
second party to either: install Microsoft software products on each
and every machine that the second party is providing, or which
prohibit the second party from installing Microsoft's competitor's
software products on the machines, or any similar contracts which
require the use of Microsoft products, should be ordered null and
void.
4) Microsoft has a long history of stealing other company's
intellectual property (Stack Electronics is a prominent example), of
predatory pricing (selling at a loss, or even ``bundling for
free'') to drive other competitors from the market (too many
companies and products to list), of playing ``dirty
tricks'' to ``break'' a competitor's product and keep
it from running (Caldera won a lawsuit against Microsoft), and on
and on and on. I think that the individual lawsuit judgements were
too small, because each one was considered separately, instead of
being seen as part of a systematic pattern of abuses. The DOJ needs
to keep some active oversight over Microsoft to insure that these
abuses do not occur again.
MTC-00029204
From: Virginia B. Kennedy
To: Microsoft Settlement
Date: 1/28/02 9:33pm
Subject: Microsoft Settlement
Virginia B. Kennedy
5104 Eastgate Drive
Tyler, TX 75703-;9113
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Virginia B. Kennedy
MTC-00029205
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:39pm
Subject: (no subject)
619 Chartier Drive
Saint Louis, MO 63135
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
Dear Mr. Ashcroft:
I believe that it is time to end the anti-trust lawsuit against
Microsoft. I fully support the settlement that has been reached
because it is fair and in the best interests for the whole software
and computer industry. Microsoft has standardized the whole
industry. Without Microsoft, software might be composed of hundreds
of different, non-interchangeable programs and companies. Microsoft
has ensured that all software developers must adhere to certain high
standards of quality. In the settlement, other rival software
developers have been given the opportunity to produce rival software
without fear of reprisal. For this reason alone, the settlement
should be agreed to.
Microsoft has agreed to not respond to rival products. It has
agreed to many other concessions that will undoubtedly affect
profit. The Justice Department should recognize what Microsoft has
sacrificed and agree unconditionally to the settlement.
Sincerely,
William Dehmer
CC:[email protected]@inetgw
MTC-00029206
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:40pm
Subject: Microsoft Settlement
Mr. Attorney General:
I urge you to consider the state of the United States''
current environment of
[[Page 28539]]
cohesiveness in spirit and united in spirit and in need to support
our infrastructure of corporate and government cooperation. Further,
that the majority of all issues as related to the original suit
have, in time, in free enterprise, and in expanded technology, have
resolved themselves.
And so I ask that you endorse and support settlement of
litigation between the United States Government and Microsoft
Corporation.
Thank you for considering my request.
Sincerely,
Peggy Belflower
MTC-00029207
From: Chester D. Hall
To: Microsoft ATR
Date: 1/28/02 9:43pm
Subject: Microsoft Settlement
It is time the US Government get out of the free enterprise
business. Without Microsoft I would not be sending you this message.
Microsoft is a very creative highly competitive organization.
Clinton and Reno attacked Microsoft for two reasons:
1] Line the trial lawyer and the DNC pockets.
2] Make computer usage more expensive and not widely used. Lets
face it Socialists want to control the news media. They cannot
control the Internet.
Bring this issue to a close.
C. D. Hall
4400 Gattis School Rd.
Round Rock, TX. 78664
MTC-00029208
From: Macy Courtney
To: Microsoft Settlement
Date: 1/28/02 9:36pm
Subject: Microsoft Settlement
Macy Courtney
4352 Fairfax
Avenue Dallas, TX 75205
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Macy C. Courtney
MTC-00029209
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:44pm
Subject: Microsoft Settlement
Chris Solberg
4331 S Mamer Road
Spokane, WA 99206-;9384
(509) 926-;6966
January 26, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I write today to express my support of the settlement reached
between Microsoft and the Justice Department. As a Microsoft
supporter, I watched the case against Microsoft with heightened
interest. Three years have now passed since the inception of this
lawsuit. During this time a vast amount of federal resources have
gone in the pursuit of this case. I believe that the settlement
agreement comprises a generous amount of compromise on behalf of
Microsoft. The settlement agreement should be enacted at the end of
January.
To expand, the terms of the settlement are enormously equitable.
Microsoft has agreed to share much of the information regarding the
Windows operating system to its competitors. Namely, Microsoft will
now disclose the protocols in Windows. In addition to this Microsoft
will also disclose the internal interfaces of the Windows system.
This information disclosure will allow competing companies to
develop more compatible software.
I believe that the settlement is fair. Further, it is time that
the issue is finally resolved. Thank you so much for your time
regarding this issue.
Sincerely,
Chris Solberg
MTC-00029210
From: Leland Hildebrand
To: Microsoft ATR
Date: 1/28/02 9:44pm
Subject: Microsoft Settlement
403 Prestwick Drive
Florence, South Carolina 29501
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Help! Microsoft has endured three long years of litigation.
Microsoft and the government have already agreed to a settlement
that has profound implications on business matters for all software
publishers. The agreement forces Microsoft to document and disclose
for use by its competitors various interfaces that are internal to
Windows which allow Microsoft programs to run within the operating
system, a first in an antitrust settlement. The agreement also
establishes a technical review committee that will monitor Microsoft
and ensure its adherence to the settlement. Therefore, this
settlement should be finalized.
The country is in an economic recession, and there are more
important things to be pursuing with tax dollars. Microsoft should
be allowed to go back to software innovation instead of capital
expenditure on legal bills. In my opinion, no more action should be
taken against this settlement. Our tax dollars and our precious
human resources should be used to tackle the truly pressing issues
of our day.
Sincerely,
Leland Hildebrand
cc: Senator Strom Thurmond
CC:[email protected]@inetgw
MTC-00029211
From: Andreanne Herring
To: Microsoft Settlement
Date: 1/28/02 9:40pm
Subject: Microsoft Settlement
Andreanne Herring
840 Brawley School rd,
Mooresville, NC 26117-;6852
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue,
NW Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies. Thank you for
this opportunity to share my views.
Sincerely,
Mrs Andreanne Herring
MTC-00029212
From: Lindner,James
To: `Microsoft.atr(a)usdoj.gov'
Date: 1/28/02 9:41pm
Subject: Microsoft Settlement
I think that it is kind of sad that companies trying to compete
against Microsoft resort to legal action instead of trying to make a
better product to compete against Microsoft.
[[Page 28540]]
Microsoft is a monopoly due to the fact that they have created a far
superior product, not because what they have done is anti-
competitive. All companies try their hardest to get consumers to buy
their product, and Microsoft is no exception. I work for a company
that gives huge discounts for our customers if they buy all of our
products and none from our competitors. That is competition. Our
competitors do the exact same thing.
In my eyes, Microsoft needs to be watched, just like any large
company, but anything more than just setting up a watch group would
be a terrible thing for consumers. Microsoft help create what
computers are today. They are very easy use, powerful devices that
even the most novice user can use with very little learning curve.
What was a computer like before Microsoft? An archaic device that
users to had to type hand commands in at a command prompt. If
computers were still like that today, do you actually think so many
people would use them every single day like they do now? I think
not. Microsofts competitors are just jealous. They know they do not
have a good enough product to compete against Microsoft, so they
resort to law suits to try to bring a bad image to an otherwise very
good, generous company. Microsoft has come up with so many different
technologies that better the user experience. It would be a travesty
to punish them for this.
James Lindner
Chief Software Architect
Cerner Corporation
MTC-00029213
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:45pm
Subject: Microsof Settlement
Dear Sir or Madam,
I want to voice my opinion regarding the upcoming Microsoft
settlement. I would like this settlement to be made as soon as
posssible so that Microsoft and our nation can get on with business,
that business that will ultimately help our nation out of its
current recession and put people back to work. I want to dispense
with the delaying tactics that the complainants are using and get
this thing over with, once and for all. This premise of this lawsuit
is ridiculous. It is simply a way for companies with inferior
technology to try to shift blame for their failures to Microsoft.
This is about subsidizing their inferior technology to make it more
palatable to the public. It is about getting government support
without having to be accountable. Let's stop this insanity now and
get this thing over with!
Patricia Ross
13526 Shadow Falls Ct., Houston Tx, 77059
PH 281-;286-;0753
MTC-00029214
From: William Foster
To: Microsoft Settlement
Date: 1/28/02 9:40pm
Subject: Microsoft Settlement
William Foster
7203 Lindenmere Dr.
Bloomfield Hills, MI 48301
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
William A. Foster
MTC-00029215
From: David Watson
To: Microsoft Settlement
Date: 1/28/02 9:39pm
Subject: Microsoft Settlement
David Watson
931 Sun Circle Way Baltimore, MD 21221
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
David Watson
MTC-00029216
From: Scott K Bramwell
To: Microsoft ATR
Date: 1/28/02 9:49pm
Subject: Microsoft Settlement
Dear District Court Judge:
I am writing to congraulate you on the prosecution of Microsoft.
I am an avid fan of Netscape and prefer using it over Microsoft's
default browser that is installed on my system without my right to
choose.
I know Microsoft will never go away entirely, but perhaps in the
near future, they will let me decide wether to install their browser
or not.
Sincerely
Scott Bramwell
CC:[email protected]@inetgw
MTC-00029217
From: Dwain Fick
To: Microsoft Settlement
Date: 1/28/02 9:41pm
Subject: Microsoft Settlement
Dwain Fick
612 W Turnpike
Bismarck, ND 58501
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dwain Fick
MTC-00029218
From: mary jane newell
[[Page 28541]]
To: Microsoft Settlement
Date: 1/28/02 9:42pm
Subject: Microsoft Settlement
mary jane newell
pob 43 south paris, me 04281
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
I am very upset with my government suing microsoft in my (the
consumers) name. I have used Microsoft products for ten years and
they have never harmed me or prevented me from using Netscape..In
fact I had both programs on my computer until the Government sued
Microsoft. Then I removed Netscape. My government is using unfair
business practices, by sueing a major company that has on my opinion
done nothing wrong. I suggest you drop the case and settle. Mary
Jane Newell POB 43 South Paris, Maine 04281 207-;539-;4547
Sincerely,
Mary Jane Newell
MTC-00029219
From: Edward D'Ovidio
To: Microsoft Settlement
Date: 1/28/02 9:43pm
Subject: Microsoft Settlement
Edward D'Ovidio
835 Hermitage Ridge
Hermitage, TN 37076
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Edward D'Ovidio
MTC-00029220
From: Scott Slack
To: Microsoft ATR
Date: 1/28/02 9:49pm
Subject: Microsoft Settlement
I think that the best solution is to cause Microsoft to compete
with itself.
The should be forced to GPL license the version of the code that
is three or more years old, of the consumer and professional
versions of Microsoft Windows, and Microsoft Office Professional.
Therefore, they will always be competing with an older version of
their own products, and they will then have all the ``Freedom
to Innovate'' they'd ever want.
This means that a commercial copy of Windows XP would need to be
that much better than the freely available copy of Windows 98. Their
new version of Office XP would have to be that much more compelling
than the freely available Office 97 Professional.
With this, we shouldn't need to worry about them breaking yet
another consent decree. Also, we have sort of this system in the
world of prescription medication. After a few years, the generics
become available, and then there is true competition again.
-Scott
MTC-00029221
From: Thomas Leung
To: Microsoft ATR
Date: 1/28/02 9:51pm
Subject: Microsoft Settlement
To whom it may be concern
Starting from 1975, Microsoft continually generates exceptional
products and makes such products available in ever-improved
versions, at ever-lower prices. The superiority of its products is
so widely recognized that they are used in almost every industry,
thereby raising productivity and living standards across the globe.
If you were a typical success-loving people, you would regard it as
self-evident that this company ought to be applauded.
However, Microsoft is denounced as an evil exploiter. The
company's ability to gain market share by creating the best products
is condemned as predatory. Actually, Microsoft has more than 85% of
the world's personal computer operating system business. That is
certainly a dominant position, however, it is not a monopoly. If
consumers want, they can buy a computer from Apple. Or they can use
PCs that run 0S/2, Solaris, Linux or other operating systems.
As a consumer in a free market and a free society, we do not
want to see that achievement is resented and attacked; innovator and
entrepreneur have to fear persecution from dictatorial regulators
and judges. Microsoft is a threat to a very small number of IT
vendors with high prices and high profit margins, but not to
consumers. Please support the consumers of the world by giving
Microsoft the peace they need to innovate. The world needs that!
Thomas Leung
Managing Consultant
Infocan Computer (Hong Kong) Ltd.
MTC-00029222
From: Wayne Hedrick
To: Microsoft ATR
Date: 1/28/02 9:52pm
Subject: Microsoft Settlement
The Microsoft court case is one of the biggest money wasters in
US Government history. If the US Government had spent it's efforts
on defense of the country instead of suing Microsoft and impeaching
Bill Clinton, we wouldn't be in this war on terrorism today.
The reason why Microsoft is so strong is simple. Their products
work. Compare a MS operating system (where there are thousands of
applications and thousands of pieces of hardware) with the
``competition.'' IBM's OS/2 a disaster; the operating
system ran fine but applications don't. Call the IT department at
American Express and ask them.
Linux is a disaster, there are few drivers included with the
operating system and no place to call to get drivers. Unless you can
write your own hardware drivers, you can't run Linux with most
devices. (They call that the beauty of ``Open
Source''...it should be called ``No Source.'') Buy a
digital camera and try to run it on Linux.
Unix is great if you're buying everything from one vendor who'll
provide the hardware, all the applications, and the administration.
But, you can't buy anything else to run on that system. And, it's
very, very expensive.
Try that digital camera on Unix...
Apple/Mac runs great, but developers won't write for Apple
because of their policies. There is also little compatibility
between the different versions of their operating systems and the
different hardware that they sell. And, on a related point, Apple is
a total monopoly. Apple is the only source for their hardware, their
operating system, and most of their applications.
Other companies cannot compete at all. Try to buy an ``iMac
com patible'' computer.
Novell 3.x and 4.x was good at file/printer sharing, but that
was about it. Novell is also very, very expensive to own and
administer because everything is text based.
Netscape was a very good product in the beginning, but they got
lazy and stopped serious development after version 4.x. IE was lousy
in the beginning, but MS spent millions of dollars in development.
IE is superb now and has been since version 4.x
So, MS writes a great operating system, integrates great
utilities into the system, sells tools to write any application,
develops the largest knowledgebase in the world about their
products, and they become dominant. If Apple had done the same
thing, I'd be working on Apple's. At any time, the computer industry
can change. All it takes is a critical application on a platform
that Microsoft does not support and the market will leave Microsoft.
Look at how well Palm took off.
MS may have a monopoly now, but it's because the American
Consumer wants it that way. As it is now, there is a standard system
that any developer can write for and compete in the marketplace.
That standard is a PC with Microsoft Windows. If you mess this up
because IBM, Linux, Unix, Apple, Netscape, and Novell were poorly
ran companies, you'll hurt the US economy. Stay out of the market.
Let the consumer choose.
Wayne Hedrick
JK Technologies
[[Page 28542]]
757-;291-;5545
MTC-00029223
From: David Sheehan
To: Microsoft Settlement
Date: 1/28/02 9:45pm
Subject: Microsoft Settlement
David Sheehan
1208 Wine Spring Lane
Baltimore, MD 21204
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
David J. Sheehan
MTC-00029224
From: bob friedmann
To: Microsoft ATR
Date: 1/28/02 9:51pm
Subject: microsoft settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW Suite
1200 Washington, DC 20530-;0001
The proposed remedy is insufficient to prevent further
monopolistic practices by the defendant, Microsoft. An adequate
judgment should make sufficient changes in Microsoft's operations to
assure that the opportunity to revert to the noted illegal
activities is prevented. Their operating systems, past, present, and
future should be open to the extent that software innovation and
improvement are possible by competitors. Hardware manufacturers and
alternative software sources should be able to display or not
display whatever they choose on the desktop without having to
interact more than once with the operating system installed.
Regards,
Robert C. Friedmann
22 Cinnamon Ridge
Old Saybrook, CT 06475
MTC-00029225
From: Eugene Maslar
To: Microsoft ATR
Date: 1/28/02 9:53pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
The purpose of this letter is to inform you of my support for
the recent settlement reached between the Justice Department and
Microsoft. Microsoft has always had my support as a company. I
believe that Bill Gates has brought his company enormous success. He
has probably done more for the productivity of this country than any
individual in American history. The case against him is highly
unmerited. I am pleased to see the end of this ridiculous suit,
however.
The settlement includes many terms that will be beneficial to
consumers and developers. Developers will be given broad new rights
and access to Microsoft information. Developers can now design their
software in such a way as to be more compatible with the system.
Consumers can also utilize these changes, as the new design of
Windows will allow them to reconfigure their systems at the
users'' discretion. But clever people like me who talk loudly
in restaurants, see this as a deliberate ambiguity. A plea for
justice in a mechanized society. The time has come to resolve this
issue once and for all. Please enact the settlement as soon as
possible.
Sincerely,
Eugene Maslar
MTC-00029226
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:53pm
Subject: microsoft settlement,
we approve of the present settlement.do no prolong this issue
any further.
ed bratton,mckinney texas
MTC-00029227
From: Andrew Rolfe
To: Microsoft ATR
Date: 1/28/02 9:53pm
Subject: Comments on the proposed final judgment in the Microsoft
case
As a computer professional who has been directly affected by the
anti-competitive actions of Microsoft, I wish to voice my
disapproval of the Proposed Final Judgment (PFJ).
Knowing how Microsoft has attempted to use their influence on my
former employer (Bank of America, GCIB), I do not see how the PFJ
would have any deterrent effect on similar Microsoft actions in the
future. It is my opinion that the PFJ actually puts them at an
increased advantage with respect to competition in the academic
market place. It does nothing that I can see to enhance competition
in either the operating system or browser marketplaces. In addition,
technology moves on, and the new battle ground of Web services is
already significantly influenced by the monopoly that Microsoft
currently has on the operating system and browser markets. Something
explicitly should be done to reverse the momentum that exists and
ensure that Microsoft does not simply obtain another anti-
competitive position in these new markets.
Sincerely,
Andrew R Rolfe
MTC-00029228
From: stinsonman
To: Microsoft ATR
Date: 1/28/02 9:53pm
Subject: Microsoft Settlement
Good day Ms. Hesse,
It is time! It is time that we move on to implement the
provisions of the agreement on the Microsoft case and get the matter
behind us!.
It is time! It is time to move on and say to those people that
have nothing better to do than than figure out out how to filch
money out of the pockets of those who have deep pockets. Get over
it! It is time! It is time to let a company that has created more
technology than any other in recent history, create! It is time! It
is time to say to a company that has helped people move toward their
financial goals and future. Keep helping! It is time! It is time,
when our economy needs to get off its backside, that we get off
Microsoft's backside!
It is time! It is time that we reward innovation, rather than
throw it in a courtroom! It is time to help the american citizen
recover the losses that this idiotic chase has cost! Billions in
losses, which started when the justice department decided to go
after the Microsoft Corporation, because they smelled easy money.
This is not about justice!It's about cash money! Microsoft has it,
the government wants it! Everyboby sees an easy mark here! Let's get
going! Implement the agreement!
Thank You,
Stan Brown 253-;927-;6402
MTC-00029229
From: Mary Kiekhofer
To: Microsoft Settlement
Date: 1/28/02 9:47pm
Subject: Microsoft Settlement
Mary Kiekhofer
1669 220th St.
Emerald, WI 54013-;7910
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken
[[Page 28543]]
up Microsoft. If the case is finally over, companies like Microsoft
can get back into the business of innovating and creating better
products for consumers, and not wasting valuable resources on
litigation. Competition means creating better goods and offering
superior services to consumers. With government out of the business
of stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Mary L. Kiekhofer
MTC-00029230
From: Richard Deahl
To: Microsoft ATR
Date: 1/28/02 10:02pm
Subject: Microsoft Settlement
The Deahls
712 Lakewinds Boulevard
Inman, South Carolina, 29349
January 27, 2002
Attorney General Ashcroft
US Department of Justice
950 Pennsylvania Avenue
Washington, DC 20530
Dear Mr. Ashcroft,
As supporters of Microsoft, we are writing to help support the
enforcement of the recent settlement. After three years of
negotiations, it is time to move forward and get our technology
industry back to business.
Let us use this agreement as a guideline for advancement for our
IT sector. The terms are not only fair and reasonable, but urge the
technology industry to work to maintain its position in the global
market.
Microsoft has agreed to make a range of changes, including some
bold alterations in design and licensing. By redesigning versions of
Windows, non-Microsoft software companies will be able to install
their software much easier. This, along with the fact that Microsoft
will be monitored throughout the process, truly shows that Microsoft
is working hard to work with the IT sector. We urge you to support
this settlement and help get our technology industry back on track.
We thank you for your support.
Sincerely,
Richard & Linda Deahl
MTC-00029231
From: George Godwin
To: Microsoft Settlement
Date: 1/28/02 9:48pm
Subject: Microsoft Settlement
George Godwin
1212 Summit St
Dothan, Al 36301
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies. Thank you for this opportunity to share
my views.
Sincerely,
Mr. & Mrs. George Godwin
MTC-00029232
From: Sharon Wood
To: Microsoft Settlement
Date: 1/28/02 9:50pm
Subject: Microsoft Settlement
Sharon Wood
3401 Granny White Pike D-;208
Nashville, TN 37204
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Sharon L. Wood
MTC-00029233
From: Richard Davenport
To: Microsoft Settlement
Date: 1/28/02 9:51pm
Subject: Microsoft Settlement
Richard Davenport
54 Brunswick Drive
Warwick, RI 02886-;5147
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies. Thank you for this opportunity to share
my views.
Sincerely,
Richard Davenport
MTC-00029234
From: Virgie Bryant
To: Microsoft ATR
Date: 1/28/02 10:00pm
Subject: Judgement
I am for leaving Microsoft alone. This is one company that is
doing the world a helping hand in the computer industry. If it was
not for Microsoft technology would not be where it is today. Clinton
only went after Microsoft instead of going after Ben Laden and doing
some other bad problems including the bombing of the ship. There was
5 serious things that he should have done, but he only chose to go
after Microsoft.
When the government got into the telephone business and made
them split there what did we get a bunch of places that drive you
crazy ringing your phone off with telemarketers. Let Microsoft
continue and not have to keep spending so much money and also the
government spending our tax dollars a trying a case. They have done
nothing wrong. They have done more for the economy than any one
else. Government just can't stand to see anyone be a success. Bill
Gates has given millions out to help the needy and charities. LEAVE
HIM ALONE.
MTC-00029235
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:00pm
[[Page 28544]]
Subject: Microsoft Settlement
6656 Evening Street
Worthington, OH 43085-;2487
January 12, 2002
Attorney General John Ashcroft
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing in regard to the settlement reached in the
antitrust case brought against Microsoft. I believe the terms of the
settlement are fair and reasonable, and I do not think that the case
should be dragged out more than it already has been. Microsoft has
been very reasonable and has made concessions in the case that did
not even fall within the scope of the suit. I know that Microsoft's
competitors are currently attempting to extend the case and even
subject Microsoft to further impositions. I do not believe this is
necessary.
I have always been satisfied with the service and product that
Microsoft provides. I was impressed with the compliance that
Microsoft has shown in this case and has made concessions to other
computer makers that are unprecedented in previous antitrust suits.
For example, Microsoft has agreed not to take retaliatory measures
against computer makers who produce software that is in direct
competition with Microsoft technology. Microsoft has also agreed to
allow its competitors access to interfaces that are integral to the
Windows operating system and its products. Microsoft was not let off
the hook.
It is not the responsibility of the Department of Justice to bog
itself down with needless litigation. There are better things to be
done with their resources. Microsoft has paid whatever debt to
society that they may have owed.
Best regards,
Marianne Grant
MTC-00029236
From: Charles Boyle
To: Microsoft Settlement
Date: 1/28/02 9:53pm
Subject: Microsoft Settlement
Charles Boyle
104 McConnel Drive
Jackson, MI 49201-;8636
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Charles F. Boyle
MTC-00029237
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 9:58pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Kevin Campbell
106 W. Apache St.
St. Marys, KS 66536-;1857
MTC-00029238
From: Stu and Mary Anderson
To: Microsoft ATR
Date: 1/28/02 10:00pm
Subject: Re: Microsoft Settlement
P.O. Box 1985 Kingston, WA 98346
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Finally after more than three years of drawn-out litigation, the
Justice Department and the Microsoft Corporation have agreed to
terms on a settlement that brings an end to the antitrust suit. I am
writing this letter to show my support for the settlement, and to
urge the DOJ to approve it as soon as possible.
Microsoft has been hounded long enough. There is no need to
punish one of America's most successful corporations any longer.
Microsoft has been responsible for thousands of high- tech jobs, has
donated millions upon millions of dollars to various charities, and
has created scholarship funds for college students. Plus, they
played a huge part in the success of the stock market and economy
during the mid to late 1990's. Why go after a company that has been
so good to this country? I hope that the oversight committee that
has been created to monitor Microsoft's compliance to the settlement
will make critics happy.
Put this issue to bed and move on to more important issues. I
support the settlement between Microsoft and the DOJ. Thank you.
Sincerely,
Stuart Anderson
MTC-00029239
From: Bradford L. Barrett
To: Microsoft ATR
Date: 1/28/02 10:01pm
Subject: Microsoft Settlement
Dear Sirs,
I have been a professional in the computer industry since the
late 70's and have first hand seen the damage Microsoft has imposed
upon our industry. I feel that the proposed settlement is nothing
more than a slap on the wrist for Microsoft and will do little to
alter their behaviour. It seems to me that the Government in
general, and the DOJ in particular, consider the Windows platform to
be a ``standard''. Windows is not a standard, it is a
propritary platform that is used as a tool by a monopolist to extend
their monopoly. Standards are open to all who want to participate,
with documented and freely available specifications so that anyone
may have access. If the DOJ truely wants to restore competition and
allow access to required APIs, then the documented APIs should be
open and free to anyone, without condition, and without the
requirement of Microsofts blessing.
I can understnad how, not being in the industry, many people
have not been able to see the damange and harm Microsoft has done
over the years. I have been there, and I have seen it, first hand. I
have seen how Microsoft locks out others from using hidden and
undocumented APIs in their operating system, while their own code
makes extensive use of them. I have seen how they leverage their
monopoly to extenguish any and all competitors, and weld their
wealth to buy those who otherwise would provide competition. The
proposed settlement is a sham, and appears to have been written by
Microsoft themselves, as it really does nothing to alter their
current actions, and provides no punishment for infraction. Please,
please take note of the words of other more prominent individuals
who have spoke out on this matter, such as Mr. Ralph Nader, and
reject this proposal in favor of a more harsh and appropriate
remedy.
Thank You.
Bradford L. Barrett
Senior Systems Architect
USBid Inc.
Miami, Florida
MTC-00029240
From: William Robinson
To: Microsoft Settlement
Date: 1/28/02 9:57pm
Subject: Microsoft Settlement
William Robinson
P.O.Box 710/410 Fort Rock Rd.
Seligman, AZ 86337-;0710
January 28, 2002
[[Page 28545]]
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
William A. Robinson
MTC-00029241
From: Doug Warner
To: Microsoft ATR
Date: 1/28/02 10:04pm
Subject: Microsoft Settlement
I think the proposed settlement is bad idea. Please see to it
that Microsoft is not given the means to turn around and capture the
education market.
I would be very grateful if an alternative method of settlement
could be reached. Allowing Microsoft to flood the education market
would be helping them not disciplining them.
Respectfully yours,
Doug Warner
Austin, Texas
MTC-00029242
From: Victor Tello
To: Microsoft ATR
Date: 1/28/02 10:05pm
I have been a resident of the United States since birth and a
user of Microsoft products for some twelve years. I believe that you
should withdraw your consent to the revised proposed Final Judgment
settlement. This settlement will not provide a sufficient influence
on Microsoft to abandon its monopolistic practices. Microsoft should
NOT be allowed to use its popularity to limit choice among computer
manufacturers and therefore, computer users across the world.
Here's why:
There are several good operating systems out there today. Each
has its own strengths and its own weaknesses. None of them are the
perfect solution to every problem. I believe that we all do
ourselves a great disservice by forcing users to grow accustomed to
the fact that Microsoft (and maybe Apple) is all that there is.
Manufacturers should be allowed to provide, NAY! encouraged to
promote, side-by-side operating system comparisons on the same
machine. For better or worse, let the people decide! So again,
please rescind your agreement. Make Microsoft act properly. Besides,
I doubt that it's going to break them!
Sincerely,
Vic Tello
8103 Parkdale
Austin TX 78757
512-;453-;4981
MTC-00029243
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:16pm
Subject: Microsoft Settlement
Dear Sir/Madam:
This ``settlement'' is laughable. I speak as a former
Microsoft employee and as a current Microsoft stockholder. Microsoft
can reach into its pocket and pull out a couple of $billion. That
won't hurt the company one bit. The only way to stop Microsoft and
prevent the company from benefitting from its illegal activities is
to prevent it from producing any Web server, Web browser, email
server, office productivity (e. g. MS Office), or any other general
application software. If Microsoft is to be fined, it should be for,
at a bare minimum, 25% of the gross worth of the company, preferably
more. Remember, the wealth that they gained was gained illegally.
Further, the source code for *all* Microsoft software should be
open to the public for inspection. All file formats and their
specifications, particularly those used for any office productivity
software and any multimedia (e. g. Word document, Excel spreadsheet,
movie files, etc.), should be released into the public domain,
similar to PKWare, Inc.'s ZIP format. Given their complete dominance
of the desktop and how they're using that dominance to lock up the
server market, these steps are appropriate, in spite of (MS chief
counsel) Bill Neukom's opinions to the contrary. I remind you that I
am a MS stockholder and a former employee. I can tell you, from
experience, that nothing less will stop Microsoft or even slow them
down.
Sincerely,
Terrell Prude'', Jr.
Network Engineer/Administrator
MTC-00029244
From: Gerald Plischke
To: Microsoft ATR
Date: 1/28/02 10:05pm
Subject: Microsoft Settlement
microsoft offer should be accepted
MTC-00029245
From: Mary Huckaby
To: Microsoft ATR
Date: 1/28/02 10:06pm
Subject: microsoft settlement
I support the Microsoft settlement.
MTC-00029246
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:06pm
Subject: microsoft settlement
Dear Mr. Ashcroft,
Please strongly urge the final settlement of the Microsoft case.
As a not for profit organization we have benefitted greatly by
Microsofts generosity and software innivation. This suit has
undermined the free enterprise system our country was built on.
Thank you, Mark Rourke
Director, Bement Center
MTC-00029247
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:06pm
Subject: Microsoft settlement
Dear Mr. Ashcroft:
Attached are my thoughts on the Microsoft settlement. I
appreciate the opportunity to express my opinion on the matter.
Thank you for your time and effort.
Sincerely,
Katharine Cahill
Katharine Cahill
2 Sagner Court
Frederick, MD 21701
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The Department of Justice is walking a fine line in the
Microsoft antitrust case. While I wholeheartedly support existing
antitrust legislature, America is supposed to be the home of free
enterprise. The federal courts are stifling Microsoft's ability to
innovate. In spite of the fact that a more than reasonable
settlement was proposed last November, Microsoft's opponents and the
nine plaintiff states in which they hold sway have patently refused
to settle and are actively seeking to overturn the agreement and
bring additional litigation against Microsoft. I believe the
proposed settlement is more than fair.
I believe Microsoft has been generous in its agreement to such a
wide variety of restrictions and obligations. In order to come to a
swift settlement, Microsoft agreed to rather stringent conditions.
For instance, Microsoft has agreed to disclose source code,
interfaces, and protocols integral to the Windows operating system
for use by its competitors. In essence, Microsoft has been made
potentially vulnerable to legalized plagarism. Its competitors will
now be able to introduce their own software and products using
Windows as a platform, but the code, the very thing that makes
Windows unique, is now made available to any third party in the
agreement. Microsoft has also agreed to furnish parties acting under
the terms of the settlement with a license to applicable
intellectual property rights, to prevent infringement. Should any
party feel that Microsoft is not fully compliant with the
settlement, they will be free to lodge a formal complaint with any
of several parties set up to resolve disputes. Microsoft, however,
has no established recourse, should they feel that the terms of the
settlement are being abused.
Ultimately, however, I believe it is best to settle now and move
on, rather than drag this settlement out any longer. The case
already
[[Page 28546]]
had a tremendous negative impact on the economy and the technology
industry. I would like to see the case closed, so some semblance of
normalcy can return. I urge you and your office to support the
finalization of the settlement.
Sincerely,
Katharine Cahill
MTC-00029248
From: Steven Power
To: Microsoft Settlement
Date: 1/28/02 10:01pm
Subject: Microsoft Settlement
Steven Power
2286 East Tolbert Road
Wooster, OH 44691
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Steven Power
MTC-00029249
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:10pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing in full support of the recent settlement between
the US Department of Justice and Microsoft. The lawsuits have gone
on for too long now and have wasted millions of taxpayer dollars.
Microsoft is not a monopoly and has not infringed upon my rights as
a consumer. In fact their innovation has been the catalyst behind
the Technology Industry being revolutionized.
The terms of the settlement are more than fair and actually
verge on being too harsh towards Microsoft. Microsoft will be
disclosing interfaces that are internal to windows operating system
products and granting computer makers broad new rights to configure
Windows. This is a first in an antitrust case.
Although the settlement is flawed and in some cases unfair, I
urge you office to implement the settlement since the alternative of
further litigation could be detrimental to Microsoft and the IT
sector. Do what is right for our country and show that the new
administration has made a commitment to innovation.
I am a loyal AOL customer and have used their product since
1993. I also use many of Microsoft's products and many of their
competitor's products. Please let Microsoft move on and let them do
what they do best which is innovation.
They raise the bar of excellence for all.
Sincerely,
Catherine Hamlin Walker
MTC-00029250
From: Richard Mendes
To: Microsoft ATR
Date: 1/28/02 10:10pm
Subject: Microsoft
Microsoft has been exercising monopoly power for years, and is
continuing to do so today. Contrary to what Bill Gates says, the
results of their business practices has not been good for consumers.
Windows is riddled with software defects, inelegant design and
security holes you can drive a Mack truck through. Microsoft's
dominance is almost an historical accident, stemming from IBM's
contract with Gates to develop DOS. Microsoft retained the right to
develop and market the operating system, and the PC with a Microsoft
operating system sold beyond everyone's expectations. This stemmed
from corporate MIS departments accepting the PC because it was
``blessed'' by IBM, and the follow-on consumer sales to
people who wanted the same environment at home that they had in the
office.
Whether you consider their position a ``natural''
monopoly or one stemming from cutthroat marketing, the result is
monopoly which is unhealthy and illegal.
Richard Mendes
[email protected]
MTC-00029251
From: Stephen Baker
To: Microsoft ATR
Date: 1/28/02 10:11pm
Subject: Microsoft settlement
Having kept up with events regarding the Microsoft case, I
wanted to comment for the Federal Register in this regard. My view
is that Judge Kollar-Kotelly should approve the settlement between
Microsoft, the Department of Justice and nine attorneys general and
that this will serve the taxpayers of American very well.
Earlier as this case unfolded, I communicated to elected
officials from North Carolina my opposition to the initial case as I
believe it showed undue interference from the federal government
against a company which was one of the most successful the world has
ever known. The fact that nearly all home and business users depend
on Microsoftp roducts simply means that their products are efficient
and economical. Noc onsumer harm has ever been shown, even by the
attorney arguing the case. That is why that I hope the judge will
approve this settlement since Microsoft will allow monitoring and
agree to guarantee equity to suppliers and others. In fact,
Microsoft was willing to settle with the government a year ago, but
the state attorneysg eneral blocked the settlement and Microsoft
stock fell sharply.
As a person who believes in the less government intervention the
better, I don't want any company to ever get in a situation where
their economic future is mandated by the federal government. If the
company cannot perform in the marketplace, has lousy products or is
outgunned by competitors, so be it. But that's the way it's supposed
be--;not getting lambasted by the Department of Justice.
Thanks for your time in reviewing my views on this issue
Sincerely,
Mark Baker
2965 Rhonswood Dr.
Tobaccoville, NC 27050
mugsyb;@peoplepc.com
336-;969-;4913
MTC-00029252
From: Timothy C. York
To: Microsoft Settlement
Date: 1/28/02 10:02pm
Subject: Microsoft Settlement
Timothy C. York
7139 Hampstead Lane
Indianapolis, IN 46256-;2315
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Timothy C. York
[[Page 28547]]
MTC-00029253
From: Leo Stevenson
To: Microsoft ATR
Date: 1/28/02 10:11pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
Please accept the settlement for Microsoft. Let's move on
without further litigation. Our national economy needs to move on.
Accepting the Microsoft settlement will help our national economy
move forward.
MTC-00029254
From: Richard Ludwig
To: Microsoft Settlement
Date: 1/28/02 10:05pm
Subject: Microsoft Settlement
Richard Ludwig
104 Hunstanton
Williamsburg, VA 23188-;9144
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief. Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies. Thank you for this opportunity to share
my views.
Sincerely,
Richard M. Ludwig
MTC-00029255
From: Keith Duemling
To: Microsoft ATR
Date: 1/28/02 10:13pm
Subject: Microsoft Settlement
Dear Attorney General John Ashcroft,
Please see attached to this email a Microsoft Word document
which adequately summaries my opinions regarding the Microsoft
Settlement. Thank you for your time.
Keith Duemling
[email protected]
MSN Messenger: kduemling
Support the Freedom To Innovate: http://www.freetoinnovate.com/ //
end
CC: [email protected]@inetgw
711 W Smith Road
Medina, Ohio 44256
January 14, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
As a supporter of Microsoft, I write you with concern regarding
the recent settlement. The terms of this settlement were part of a
well thought out process, which was monitored throughout the entire
time. It seems impossible that there could be any more room for
scrutiny. Let us let these terms speak for themselves and help get
our technology industry back to business.
As our economy continues to take a dip, we must do all we can to
support our technology industry. Since it acts as a large part of
our economy, we need to help solidify its place in the global
market. The terms of this agreement help to create a more unified IT
sector, which can only help us to work together to keep our place in
this global market. By delaying the process, we only open the doors
for our competitors, while we focus on litigation. Please help to
support this settlement by stopping any further action against the
agreement. Help us to help our IT sector get back to business, I
thank you for your support.
Sincerely,
Keith Duemling
MTC-00029256
From: Brent Wilde
To: Microsoft ATR
Date: 1/28/02 10:14pm
Subject: Microsoft Settlement
M. Brent Wilde, MAI
1980--;112th Ave. NE, Suite 270
Bellevue, WA 98004
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing, today, the last day of the public comment period,
to show my support for the settlement of the Microsoft antitrust
case. This case has gone on long enough. The antitrust case against
computer company, IBM, dragged on through the 1960s, 1970s and into
the 1980s. Nothing like that should happen again. The new judge in
the case appointed a mediator who helped the parties to negotiate
together for three months. The settlement should be approved in the
best interest of the American people. The settlement will make its
easier for other companies to work with Microsoft in using its
software codes and changing the programs included in its very
popular Windows operating system installation. There will be a
technical committee of experts who will inspect Microsoft's software
and its facilities to see that the agreement is complied with. The
committee will also hear and investigate complaints file by third
parties. I would appreciate your continuing support for the
Microsoft antitrust settlement. Thank you.
Sincerely,
Brent Wilde
MTC-00029257
From: Walt
To: Microsoft ATR
Date: 1/28/02 10:15pm
Subject: Microsoft Settlement
Memo
To: Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
From: Walt Chambers
Date: 1/28/02
Re: Microsoft Settlement.
Dear Mr. Ashcroft:
I am writing to express my support for the settlement that was
reached between Microsoft and the Justice Department. First let me
state that I have been in the Industry since 1976 and have worked
with Major retailers such as Zales Corp., Major credit card
processors such as MBNA. Major banks such as American Savings,
Australian New Zealand Bank, State Bank of South Australia. Major
manufacturers such as Alp's Electric. I have worked as a consultant
for Arthur Andersen Consulting, Cap Gemini Sorgetti, and Computer
People Australia. In my various positions with these firms I have
been involved with contract negotiations with IBM, Microsoft,
Fujitsu, Honeywell, etc? In all my dealings with Microsoft I have
never witnessed any unfair dealings and they were usually the
industry norm or even a little less competitive than say IBM.
The consumers were in my opinion already well protected by
Microsoft from Hardware manufacturers which were trying to make
their configurations of Microsoft proprietary and lock business
consultants like myself out? If you look back to when PC's first
came out this was the biggest problem.. Until Microsoft stepped up
to the plate and forced conformity so that the user would have a
consistent experience across all platforms and vendors. I feel the
settlement would end the waste of time and money by our government.
In my opinion the whole legal battle was never really about the
consumer but was focused on corporate access to government
lobbyist's by hardware and other software manufacturers who weren?t
smart enough to compete.
I believe the settlement which ends the wasteful court battles
is good for consumers and the entire computer industry. The terms of
the settlement indicate an extensive agreement that requires many
concessions from Microsoft. Microsoft has agreed to grant computer
makers broad new rights to configure Windows so as to promote non-
Microsoft software programs that compete with programs included
within Windows. And Microsoft will not retaliate against any
computer maker who takes advantage of these new rights. Microsoft
will also be monitored by a three-member Technical Committee that
will assure the company meets its obligations.
As a member of the computer industry, I know the importance of
Microsoft not only to our industry but also to the entire economy.
Concluding this settlement will provide certainty to the industry
and give Microsoft the freedom to design new technology. I hope you
will continue to support the settlement and take no further action
in litigating this case
[[Page 28548]]
Sincerely,
Walt.
CC:[email protected]@inetgw
MTC-00029258
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:15pm
Subject: microsoft settlement
it is my opinion that the case between states and microsoft
should be settled as per the DOJ.- Thank you.
MTC-00029259
From: Steve Townsend
To: Microsoft ATR
Date: 1/28/02 10:17pm
Subject: Re: U.S. v. Microsoft: Settlement Information
To Whom It May Concern,
The terms of the settlement with Microsoft are completely
unacceptable. I hope that it is apparent to those persons in power
to make such decisions that Microsoft will not be stemmed from their
monopolistic practices with any settlement that allows them such
freedom of interpretation.
They (Microsoft) have shown their contempt for and avoidance of
any measures attempting to restrict their behavior. It was obvious
from the demeanor of CEO Bill Gates during the trial and the
continuation of monopolistic practices by Microsoft during the trial
and after the findings of guilt that anything short of structural
changes to the company will be ineffectual in limiting their
monopolistic tendencies.
Microsoft is positioning to extend its reach into key areas of
our emerging economy. The operating system monopoly that they enjoy
is allowing them to push their .Net product. Microsoft, who's record
on security issues is horrendous, is looking to become part of all
internet financial transactions by forcing the .Net infrastructure
and wants us to entrust them with our sensitive data. Their browser
monopoly will insure that the interface for virtually all internet
shoppers will be controlled by Microsoft. Their monopolistic might
is forcing restrictive marketing of the MSN network product.
Microsoft has a history of pushing ahead with it's own
``standards'' circumventing the international standards
committees that help to provide a secure and level playing field.
The fact that 99.99% of all viruses and data security threats that
exist thrive on Microsoft technology. The holes in Microsoft
programs that are left to provide businesses easy marketing
opportunities are included at the expense of public privacy and
security concerns.
In a marketplace free of the heavy handed monopolist NO customer
would opt to expose themselves to the additional risk involved in
using Microsoft internet products. Whatever the final solution, it
must prevent the continued free reign by this megalomaniacal
corporation.
Sincerely,
Stephen J. Townsend
Cottage Grove, MN
MTC-00029260
From: Sandra Helmich
To: Microsoft ATR
Date: 1/28/02 10:17pm
Subject: Microsoft settlement
Attorney General John Ashcroft
US Dept. of Justice
c/o email [email protected]
Dear Sir Ashcroft:
I am a Microsoft user. I want to say I fully support the recent
Microsoft-Department of Justice settlement. It's great Microsoft
will not be broken up. However, the lawsuit was too costly and long.
The terms agreed upon seem to violate Microsoft's intellectual
property rights, by being forced to disclose internal info about the
Windows operating system and requiring future design versions making
it easier for competitors to promote their products within Windows.
Our economic future depends on intellectual innovation and it is to
be protected to insure future incentive and financial success. I
strongly urge your office to imlement the settlement, as the
alternative ..more litigation, will only impact our tech economy and
stifle our markets.
Respectfully submitted,
Sandra M. Helmich/signature
cc: Rep. Jeff Flake
MTC-00029261
From: Jerry Schultz
To: Microsoft Settlement
Date: 1/28/02 10:09pm
Subject: Microsoft Settlement
Jerry Schultz
7007 L.5 Lane
Escanaba, MI 49829
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Jerry L. Schultz
MTC-00029262
From: Ryan Bender
To: Microsoft Settlement
Date: 1/28/02 10:10pm
Subject: Microsoft Settlement
Ryan Bender
P.O. box 774
Topeka, IN 46571
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ryan Bender
MTC-00029263
From: Sarah Carroll
To: Microsoft Settlement
Date: 1/28/02 10:09pm
Subject: Microsoft Settlement
Sarah Carroll
P.O. Box 490
Valders, WI 54245
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
[[Page 28549]]
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Sarah L. Carroll
MTC-00029264
From: Mark MacNeil
To: Microsoft ATR
Date: 1/28/02 10:11pm
Subject: Microsoft Case Comment
DOJ,
I think your case against Microsoft Corp. was a disgrace to the
American Legal System. It seems you allowed a group of businessmen
from the likes of Sun Microsystems and AOL, who couldn't compete
with Microsoft on the field of software design and customer service,
and allowed them a chance in a courtroom to do what they could never
have done through any work of their own. I use all Microsoft
products because of their good design and customer service. I think
you should point your legal gun somewhere else...and perhaps you
should read Greenspan's work entitled: AntiTrust. Found in Ayn Rands
collection of works ``For the New Intellectual''.
Mark MacNeil
MTC-00029265
From: RWB
To: Microsoft ATR
Date: 1/28/02 10:15pm
Subject: Microsoft Settlement
The proposed settlement does not begin to address the market
arrogance and bullying behavior which characterized Microsoft's
marketing over the past decade. The public destruction of Netscape
by giving away it's browser for free and then simply including it in
the operating system are just one of many acts which the company has
taken to reduce or destroy competition. The beginnings of a
sufficient remedy would include requiring Microsoft to cease to
offer a browser at all and to agree to never sell a product at less
then a competitive product even if they have a minority market
share. The agreement not to sell must be adjusted for the effects of
``bundling'' which Microsoft has used not only against
Netscape but also WordPerfect and many others.
Rodger Barkus
(formerly Software Association of Oregon board member and the
COO of a software company.)
MTC-00029266
From: Diane Collins
To: Microsoft Settlement
Date: 1/28/02 10:09pm
Subject: Microsoft Settlement
Diane Collins
944 Ark 175
Hardy, Ar 72542
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Diane Collins
MTC-00029267
From: Bernard Katz
To: Microsoft Settlement
Date: 1/28/02 10:08pm
Subject: Microsoft Settlement
Bernard Katz
17 Riesling Ct.
Commack, NY 11725-;1735
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Bernard Katz
MTC-00029268
From: George Lawrence Storm
To: Microsoft ATR
Date: 1/28/02 10:20pm
Subject: Microsoft Settlement
I am opposed to the Microsoft settlement. If accepted it would
penalize those schools involved, greatly reward the monopolistic
practices of Microsoft and highly penalize the only creative
computer developer left in the US.
As the current settlement stands Microsoft will pay virtually
nothing by donating obsolete equipment which has already been
written off and donating software that they never would have sold.
This settlement places a significant financial penalty on those
schools that would be foolish enough to accept this farce. It is a
fact that support costs for the windows platform are on the order of
ten to one. If we were to accept the notion that this
``donation'' was one billion dollars the schools involved
would need to raise ten billion dollars to support the hardware,
software and training needed to support it during the very short
life remaining in it.
If however a cash fine of one billion was made with that cash
going to the purchase of new Macintosh hardware and software those
same schools would only need to raise three billion, six hundred
million, a bit more than a third the support cost. Additionally the
life of the equipment would offer more than twice the longevity of
Microsoft's proposed donation. This would further reduce the strain
on school budgets by extending the support costs over a five year
verses a two-year period of time.
(The factors of 10 and 3.6 are a few years old and need to be
researched to see if they have changed recently.) If we are to teach
our children the values of honesty and integrity it should be that
these values are important. Letting the proposed settlement stand
only teaches them that success is based on lies and theft.
If you want to teach justice the only way is to impose the
severest of penalties which must include significant jail time for
all those involved. Anything less is to reward the criminals
involved.
Sincerely,
George Lawrence Storm
George Lawrence Storm
1916 Pike Place / Suite 12 / #441
Seattle, Washington 98101
Telephone: (206) 334--;7236
E-mail: [email protected]
MTC-00029269
From: Wayne Borean
To: Microsoft ATR
Date: 1/28/02 10:20pm
Subject: Microsoft Settlement
The Proposed settlement will have virtually no effect on
Microsoft. The settlement is deeply flawed, and needs to be totally
recast to have any real and lasting effect on the monopolistic
practises of Microsoft Corporation.
Wayne Borean
President
forkliftguy.com
[[Page 28550]]
MTC-00029270
From: Sirena Lau
To: Microsoft ATR
Date: 1/28/02 10:22pm
Subject: microsoft settlement
Stella L. Lau
1139 Bacon Street
San Francisco, CA 94134
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The purpose of this letter is for me to go on record as favoring
the settlement agreed to by Microsoft and the Justice Department. It
is about time that the two sides came to an agreement, and I only
hope that this settlement is approved without any delay. Competition
in the computer industry is going to benefit greatly from this
decision. Microsoft will be producing future versions of Windows
that will allow other computer makers and software developers to add
their own versions of software that compete with programs included
within Windows. They will also be able to remove easily
Windows'' software. Companies will now be free to compete with
one another, and the quality of software will rise as a result.
This settlement is just what is needed, and I stand behind it
100%.
Sincerely,
Stella Lau
MTC-00029271
From: Patricia Deibler
To: Microsoft Settlement
Date: 1/28/02 10:15pm
Subject: Microsoft Settlement
Patricia Deibler
25742 Cervantes
Mission Viejo, CA 92691-;5604
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Patricia Deibler
MTC-00029272
From: Jeff Clearwater
To: Microsoft ATR
Date: 1/28/02 10:22pm
Subject: Microsoft Settlement
Your Honor, Colleen Kollar-Kotelly,
Please do what you can to stop this juggernaut from doing more
damage to an already over monopolized industry!
I agree totally with the filing by ProComp regarding the
Microsoft ``settlement''. This is a travesty of justice.
Microsoft clearly has grossly violated antitrust legislation and has
monopolized the market in ways that clearly suppresses innovation
and competition in the operating system, browser, and scripting
software industries. The filing by Procom says it the best. I
reproduce an article with the specifics below.
``This proposed decree is so ineffective that it would not
have prevented Microsoft from destroying Netscape and Java, the very
acts that gave rise to this lawsuit,'' said Judge Robert H.
Bork. ``It is so ineffective in controlling Microsoft that it
might as well have been written by Microsoft itself.''
The ProComp filing explained that Judge Kollar-Kotelly must make
a truly independent determination of whether the proposed settlement
is in the public interest, with the public interest standard defined
by the Court of Appeals ruling in this case.
Sincerely,
Jeff Clearwater
Reference Article:
Judge Bork and Judge Kenneth W. Starr were among those signing a
Tunney Act filing on the settlement submitted today by the Project
to Promote Competition and Innovation in the Digital Age (ProComp),
a leading opponent of the settlement.
The ProComp filing also included an affidavit critical of the
proposed settlement from Nobel Prize-winning economist Kenneth J.
Arrow, a professor at Stanford University, who had supported the
1995 consent decree between the federal government and Microsoft.
The ProComp filing explained that Judge Kollar-Kotelly must make
a truly independent determination of whether the proposed settlement
is in the public interest, with the public interest standard defined
by the Court of Appeals ruling in this case.
``Because this proposed settlement does not follow the
mandates of the Court of Appeals judgment, it must be rejected.
Neither the Department of Justice or the District Court have the
constitutional authority that does not satisfy the Court of Appeals
ruling,'' Starr explained. ``This proposed settlement not
only fails to meet the Court of Appeals standard, it doesn't even
purport to do so. It is simply based on an inappropriate legal
standard, and we don't believe it satisfies even this modest
standard.''
In his affidavit, Professor Arrow said the new proposed
settlement between Microsoft and the Department of Justice fails to
eliminate the benefits to Microsoft of its illegal conduct, fails to
restore competition in the market, and fails to strengthen the
possibilities of competition and deter the exercise of monopoly
power now and in the future.
Arrow noted that the Court of Appeals ruled that Microsoft
violated federal antitrust law by impermissibly maintaining its
monopoly through anticompetitive actions against Netscape and Java.
``Given that finding, the remedies in this case should
eliminate the benefits to Microsoft of its illegal conduct; should
restore, if possible, the possibility of competition in operating
systems; and should not allow Microsoft to protect its illegally
maintained monopoly from current and future competition in related
markets, such as server operating systems and Web services,''
Arrow said in his affidavit. ``In my opinion, the PFJ (proposed
final judgment) fails to accomplish these objectives.''
Arrow said the market position that Microsoft has
today--;with 92 percent of the PC operating systems market and
91 percent of the browser market--;``makes it difficult for
any set of conduct remedies to lead to significant middleware
competition. Neither the PFJ nor any other set of conduct remedies
can re-create the technological disruption or competitive head start
that existed before Microsoft acted illegally.''
ProComp's Tunney Act filing also notes that the proposed
settlement fails to adequately deal with competitive issues that
will determine the future of the software industry, and does not
contain the safeguards needed to prevent Microsoft from extending
its monopoly into more markets.
``The proposed decree hardly deals at all with Microsoft's
likely future anticompetitive conduct. Microsoft's prodigious market
power is now directed at the next threat to the Windows
platform--; applications and services provided via the Internet
and other networks--;not the Netscape/Java threat of
1995-;99,'' according to the ProComp filing, which was
signed by Bork, Starr, ProComp President Mike Pettit and others.
``Microsoft has destroyed those revolutionary technologies that
are a source of operating systems competition and has moved on to
other areas that the proposed decree all but ignores.''
The ProComp Tunney Act filing notes that the proposed
settlement's strong-sounding provisions are often undercut by other
sections that give Microsoft broad discretion in interpreting the
agreement. For example, the proposed settlement permits Microsoft to
design and bundle its products in different ways to evade the
disclosure requirements by giving Microsoft ``sole
discretion'' to decide what software is part of a
``Windows Operating System Product.''
``The API disclosure provisions are riddled with numerous
deficiencies that render them ineffective in promoting
competition,'' the ProComp filing said. ``These are not
loopholes, but triumphal arches that allow Microsoft to proceed
uninhibited by the antitrust laws.'' Judges Bork and Starr and
the others supporting the ProComp filing urged Judge Kollar-Kotelly
to defer a decision
[[Page 28551]]
on the proposed decree until after the hearing on the stronger
remedies proposed by the nine states which have objected to the
proposed settlement.
``The proposed decree supported by Microsoft and the
Department of Justice is hopelessly vague and inherently
unenforceable,'' Starr said. ``We believe that divestiture
remains the preferable and most effective remedy for Microsoft's
antitrust violations.''
Jeff Clearwater
Ecovillage Design Associates
2525 Arapahoe Ave, Suite E4, #280
Boulder, CO 80302
303-;546-;0460,
[email protected]
[email protected]
MTC-00029273
From: Marilyn Laurie
To: Microsoft Settlement
Date: 1/28/02 10:15pm
Subject: Microsoft Settlement
Marilyn Laurie
6520 Walden Pond Ln. SE
Southport, NC 28461
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Marilyn K. Laurie
MTC-00029274
From: John G. Ata
To: Microsoft ATR
Date: 1/28/02 10:24pm
Subject: Microsoft Settlement
This letter is written to urge the acceptance and adoption of
the proposed settlement between the Department of Justice, Microsoft
and nine states. This agreement addresses perceived concerns of
``monopolistic practices'' while allowing Microsoft to
continue to developing software that is useful. The fact that the
Department of Justice and 9 states have signed on shows that it has
merit. No alternative has been shown to be better in the long run.
Those pushing for such alternatives are those who truly wish to put
Microsoft out of business which is not the best course of action for
either the industry or our country in the long run. Hopefully, cool
heads will prevail and the rhetoric of those who wish for harsher
sanctions can be seen for what they are.
Sincerely,
John G. Ata
MTC-00029275
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:21pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen. Please put a stop to this travesty
of justice now. Thank you.
Sincerely,
Raymond L. Put
10845 Link Rd.
Fountain, CO 80817-;3380
MTC-00029276
From: CHRISTOPHER A PETERS
To: Microsoft ATR
Date: 1/28/02 10:24pm
Subject: Microsoft Settlement
Dear Sirs,
I am writing to express my belief that the proposed settlement
of the Microsoft anti-trust case is too weak and should be rejected
by the Court. The remedies proposed would not, in my opinion, go
nearly far enough to restrain the company from it's proven
monopolistic behaviour. I write this as an IT professional with over
10 years of experience in the field.
I am also a conservative who believes in limited government
regulation. However, in this case, I believe that it is in the best
interest of the U.S. taxpayers that harsher penalties be handed down
to Microsoft. By leveraging its'' near-monopoly on desktop
operating systems, Microsoft has damaged competition and reduced
consumer choice.
In my opinion, the settlement announced in October by the nine
states and the Dept. of Justice with Microsoft would be nothing more
than a slap on the wrist. A proper remedy would begin with requiring
that Microsoft ``unbundle'' its'' Web browser from
the underlying operating system and force the company to release the
source code for versions of its'' popular Office suite of
programs to the general public. Such a remedy would begin to allow
more competition in the marketplace.
I do not, however, believe that the company should be broken up.
Sincerely,
Christopher A. Peters
(Microsoft Certified System Engineer)
MTC-00029277
From: Shannon Littlefield
To: Microsoft Settlement
Date: 1/28/02 10:21pm
Subject: Microsoft Settlement
Shannon Littlefield
202 W Lockesburg Street
Nashville, AR 71852
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Shannon Littlefield
MTC-00029278
From: David Rose
To: Microsoft Settlement
Date: 1/28/02 10:17pm
Subject: Microsoft Settlement
David Rose
2721 NW Cascade
East Wenatchee, Wa 98802
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a
[[Page 28552]]
serious deterrent to investors in the high-tech industry. It is high
time for this trial, and the wasteful spending accompanying it, to
be over. Consumers will indeed see competition in the marketplace,
rather than the courtroom. And the investors who propel our economy
can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
David M. Rose
MTC-00029279
From: Jeffrey Horn
To: Microsoft ATR
Date: 1/28/02 10:26pm
Subject: Microsoft Settlement
United States Justice Department:
As an assistant professor of Computer Science, with a Ph.D. in
Computer Science and four years of industry experience as a computer
networking consultant, it is my opinion that the currently proposed
settlement between Microsoft and the US Justice Department is
fundamentally flawed. As a researcher and developer in the field of
computers, I have seen first hand, time and again, how Microsoft has
used its monopoly status to stifle competition and innovation. It is
clear to me that Microsoft, in its corporate philosophy, is not
interested in innovating, but rather it seeks power and control (and
profit). I won't bother with the details of examples, as they have
been well-documented, but I will simply list some examples: the
elimination of the browser as an alternative desktop, the attempt to
eliminate the platform-independent programming language Java (which
supports OS independent processing), the attack on the open-source
model of software development, etc.
It is my considered opinion that without Microsoft, or at least
without its monopolistic influence, the computer industry, the user-
computer interface, and indeed our entire understanding of the how
computers can help people, would have progressed much further than
we actually have so far. I strongly recommend a restructuring of the
corporation, and not simply punitive measures. Microsoft has
demonstrated repeatedly that it cannot change its corporate culture.
Instead, the operating system itself must be made open to support of
third-party products, to include new paradigms of computation.
Microsoft must not be allowed to keep the entire software
``pie'' to itself, as it cannot be trusted to do anything
beneficial with it.
Thank you for your attention.
Jeffrey Horn, Ph.D.
Assistant Professor of Computer Science
Department of Mathematics and Computer Science
Northern Michigan University
Marquette, Michigan 49855
CC:[email protected]@inetgw
MTC-00029280
From: Alix Barstow
To: Microsoft ATR
Date: 1/28/02 10:24pm
Subject: Microsoft Settlement
1) Thank you for bringing this suit on my behalf as an American!
2) I am very concerned that the final settlement be effective,
not just in punishing Microsoft for past wrongs, but in creating an
environment that hinders future wrongdoing by truly enabling
vigorous competition in the middleware as well as operating systems
markets. Microsoft has a near monopoly with its Microsoft Office
suite and I would like to see stronger competition for these
programs in particular.
MTC-00029281
From: Matt Gainer
To: Microsoft ATR
Date: 1/28/02 10:26pm
Subject: Microsoft Settlement
To whom it may concern,
First, even as I type this e-mail in Microsoft Entourage I want
to thank you for pursuing an aggressive action against the Microsoft
corporation. There is no disputing the quality of Microsoft's
products, and the extent that we have come to depend on them; but
how Microsoft positioned itself as a leader is definitely worthy of
debate, and hopefully critical action as well.
Thank you for the opportunity to share the following brief story
with you: In 1997 I finished Graduate school in Los Angeles and
accepted my first part time teaching job at a small, private two-
year catholic college located in Palos Verdes, California.
I was the first lecturer hired to teach Digital Imaging in the
school's new computer lab. From what I understand, the main computer
lab, along with the college's central server were at least partially
(perhaps completely) funded by Microsoft...with the agreement that
non-microsoft software was not allowed on any of the machines if a
microsoft brand software existed for a particular task. For
instance, I was not allowed to install netscape on any of the
machines since Internet Explorer could perform the same tasks.
Other teachers complained that they were also forced to use
microsoft products when there were better alternatives available.
The issue was not money...since some of the software, like netscape,
were available as free downloads. The reason that we were not
allowed to use non microsoft product to teach with was because
microsoft had defined the parameters of what could be done in the
lab when they donated the equipment.
I'm not sure if the agreement with microsoft was legal or not,
but it made for an extremely frustrating teaching experience, and
severely limited the ways in which we could use the computers in our
lab.
Thanks for listening,
Matt
Matt Gainer
(323)660-;2846
MTC-00029282
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:27pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Henry Mastran
400 Mark Drive
Tallmadge, OH 44278
MTC-00029283
From: Susan Dillard
To: Microsoft ATR
Date: 1/28/02 10:30pm
Subject: Microsoft Settlement
11720 81st Avenue NE
Marysville, WA 98271
January 23, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 205301
Dear Mr. Ashcroft:
Although not a member of technology industry, I would like to
voice my thoughts on finalizing the Microsoft anti-trust case. To
claim that Microsoft is operating as a monopoly, with apparently so
many competitors available that they can bring on this lawsuit,
comes off as an overblown attack on a company that has succeeded
through consumer support, not monopolistic practices.
As I've seen in the telephone industry, there are many more
monopolies causing much more harm to the consumer than Microsoft has
ever done. Now that a settlement has been reached, the conditions
seem highly favorable to the Justice Department, even surpassing
some of the initial complaints. So, with so many other distractions
of greater importance on the government's plate, it would seem time
to finally end this process.
With regular oversight of a technical committee to ensure
compliance, Microsoft
[[Page 28553]]
will provide ample opportunities for their rivals to succeed with
this deal, including more flexible configuration of the Windows
platform, access to its internal source code and licensing of its
intellectual property.
Please move forward with this process and allow these companies
to go compete in this new environment without further intervention.
Sincerely,
Susan Dillard
CC:[email protected]@
inetgw
MTC-00029284
From: CHARLES DELANEY
To: Microsoft Settlement
Date: 1/28/02 10:20pm
Subject: Microsoft Settlement
CHARLES DELANEY
1219 GLENRIDGE LANE
ELKHORN, WI 53121
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
CHARLES R. DELANEY
MTC-00029285
From: Tanuj T
To: Microsoft ATR
Date: 1/28/02 10:30pm
Subject: Microsft Settlement
This is too easy a way out for Microsoft, predominantly because
Microsoft has so much money, the charges Microsoft need to pay to
settle its monopoly won't even scratch the company. This is
meaningless because large companies will continue to get monopolies
and pay them off without any problems. The settlement needs to go
farther than that, to prevent large companies from getting away with
monopolies easily. Just like Carnegie's vertical monopoly on steel,
he had made so much money, he still had his monopoly on steel.
What should be done is Microsoft should break up into two
competing companies. Thus they will not be able to form trusts more
overtly than what they're doing now. Another solution would be to
force Microsoft to have two versions of Windows available; one with
all the features and software it has now, and one with just the
operating system itself. However, I believe this aspect is not an
issue because Microsoft just has a better product. The Operating
System doesn't prevent one from installing Netscape or anything of
that nature, it's equal opportunity for all ventures.
In addition to it being too easy for large companies to get away
with monopolies, other companies also bundle up their software, such
as Apple. So in reality they are also cutting off the market because
Apple requires you to purchase their software and hardware because
it won't work any other way.
For example, the Mac Operating System obliges you to also buy a
Mac printer, Mac compatible word processors, Mac games, Mac
compatible browsers, etc.. They are cutting off the market from
Microsoft and other companies, who can't put too much software on it
because it's not compatible or else pay Apple to get it on. Because
Microsoft doesn't want to waste their money, they just place it on
their own OS. It's exactly the same idea: Microsoft bundles up
Office and IE, just the same way Apple bundles up their software.
However, if Apple receives the lawsuit, they will suffer a lot more
than Microsoft, who won't get affected by the lawsuit because they
have so much money.
MTC-00029286
From: ALEXANDER R KOBIEC
To: Microsoft ATR
Date: 1/28/02 10:20pm
Subject: microsoft settlement
REQUEST THAT MICROSOFT SUIT BE SETTLED IN A TIMELY AND FAVORABLE
OUTCOME IN MICROSOFT'S FAVOR.
I AM A MICROSOFT USER AND FEEL THAT THEIR PRODUCTS ARE FAIR AND
REASONABLE. TO RULE AGAINST THEM WOULD STIFLE INNOVATION. I FEEL
VERY STRONGLY IN MICROSOFT'S FAVOR.
SINCERELY,
ALEXANDER R. KOBIEC
MTC-00029287
From: Donald Kochanek
To: Microsoft Settlement
Date: 1/28/02 10:25pm
Subject: Microsoft Settlement
Donald Kochanek
757 W. 406 S.
Marion, IN 46953
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Donald R. Kochanek
MTC-00029288
From: Janet Gillette
To: Microsoft Settlement
Date: 1/28/02 10:24pm
Subject: Microsoft Settlement
Janet Gillette
3419 El Serrito Dr
Salt Lake City, UT 84109
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Janet W. Gillette
[[Page 28554]]
MTC-00029289
From: Dora Cividino
To: Microsoft Settlement
Date: 1/28/02 10:24pm
Subject: Microsoft Settlement
Dora Cividino
14457 Indian Springs Road
Penn Valley, CA 95946
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dora Cividino
MTC-00029290
From: Aleks Totic
To: Microsoft ATR
Date: 1/28/02 10:32pm
Subject: Microsoft Settlement
To: The Antitrust Division
My name is Aleksandar Totic. I am writing to comment on the
proposed Microsoft settlement, and document anti-competitive MS
behavior that occurred in October 2001. I believe that the behavior
I've documented clearly demonstrates that MS will inconveniences the
consumer if it helps to protect its monopoly.
In ``Competitive Impact Statement'', you claim that
the settlement will ``restore the competitive threat that
middleware products posed''. I do not believe that the
settlement will achieve this goal. This is because:
A)
There are many exceptions in the settlement that Microsoft can
use to hinder competition:
Section III.D
Why make interoperating with Windows the sole purpose of the
disclosure? MS could use this to deny Linux developers access to the
APIs. The APIs should be public, without any strings attached.
Section III.H.2 (Windows may invoke MS Middleware) I bet that the
line ``designated Non-Microsoft Middleware Product fails to
implement a reasonable technical requirement'' can be used to
disqualify any middleware MS disagrees with.
B)
The only real threat to MS was that the web would make OS
irrelevant. This can only happen if there is browser competition.
With IE, MS will make sure that surfing the web on Windows is the
only good web experience.
That's all as far as my complaint about the settlement goes. Now
here is my documentation of Microsoft continuing to clean up any
remaining competition in browser wars in October 2001.
DOCUMENTATION OF ANTI-COMPETITIVE BEHAVIOR, OCTOBER 2001
I was one of the founding engineers of Netscape, employee
#11, followed Marc from Illinois. I was one of the authors of
the Plugin API for Netscape, back in 95.
Microsoft cloned our API right away in IE, and then removed in
October of 2001 as a part of Service Pack 2 for IE5.5/IE6. This
caused all Plugin API plugins to stop working, including QuickTime.
Some of the Apple's engineers spent a few sleepless nights,
frantically rewriting the Quicktime plugin to support ActiveX.
To understand how sinister this move was, you need to know a bit
about the Plugin API. It is a standard by which 3rd party developers
can extend browser functionality, allowing movies, complex
animations to be played in web pages. Flash, RealPlayer, and
Quicktime are examples of plugins. The Plugin API was cross-
platform, and was widely used, implemented in other browsers, such
as Opera.
Microsoft cloned Netscape's Plugin API under competitive
pressure in IE 2, and also created a competing standard called
ActiveX. ActiveX of course was available only on Windows, and no
other browsers ever supported it.
ActiveX and Plugin API were competing standards. Despite MS much
more extensive support for ActiveX, Plugin API was widely used,
because it was simpler to use, and cross-platform.
When MS removed it, movies stopped playing for millions of movie
watching consumers that relied on Quicktime. In one stroke, MS
killed PluginAPI, and hurt Quicktime, a competitor of Movie Player.
The move inconvenienced the consumers, who had to go to Quicktime
site to upgrade or start using Microsoft movie, developers. The only
benefit was to Microsoft, to lock people into using IE. And this
occurred in October 2001, after they were found guilty.
Microsoft statement about removing the API can be found at:
``Netscape-Style Plug-ins Do Not Work After Upgrading Internet
Explorer'' http://support.microsoft.com/support/kb/articles/
q303/4/01.asp The list of plugins supporting the Plugin API: http://
browserwatch.internet.com/plug-in/plug-in-big-ah.html
Later, they also decided not to ship Java, further destroying
the cross-platform promise of the web.
As one of the original visionaries of the web that transcends
Operating Systems, this makes me very mad. I applaud Microsoft
winning through quality and innovation, but they keep pursuing API
lock-in and monopoly as their favorite means of competition.
If you need any further help, I'd be happy to fly out to
Washington, testify, do more competitive analysis, code review, etc.
Thank you for your time,
Aleksandar Totic
2023 Pacific Avenue
San Francisco, CA 94109
MTC-00029291
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 10:33pm
Subject: Microsoft Settlement
As a user of Microsoft's products, I object to the company being
punished for its success. The suit was brought by Microsoft's
competitors, who were not able to produce a product as good as
Microsoft's. Business must be allowed to function in a free society,
and to function competitively.
The consumer always has the choice to buy from Microsoft, or
not. Noone is being cooerced. I stand for Microsoft's right to
produce the best product it can. And it's right to own that which it
produces.
Susan Crawford
Silver Spring, Md.
MTC-00029292
From: Ronald Hall
To: Microsoft Settlement
Date: 1/28/02 10:29pm
Subject: Microsoft Settlement
Ronald Hall
PO Box 2020
Hew Hartford, NY 13413
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
[[Page 28555]]
Sincerely,
Ronald D. Hall
MTC-00029293
From: Lester Hixson
To: Microsoft Settlement
Date: 1/28/02 10:27pm
Subject: Microsoft Settlement
Lester Hixson
173 San Marcos Dr
Lodi, CA 95240
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Lester N Hixson
MTC-00029294
From: Frank West
To: Microsoft ATR
Date: 1/28/02 10:37pm
Subject: Microsoft Settlement
Just a short comment.
Why pick on Microsoft when the real ``monopolies''
consist of Big Government's overstuffed ``Bureaucracies''!
Of course, all the shysters in congress need something to turn the
attention away from themselves since ``statesmanship'' is
so lacking in this modern age.
F T West
Elyria, OH
MTC-00029296
From: brad
To: Microsoft ATR
Date: 1/28/02 10:35pm
Subject: Microsoft Settlement
Brad Smith
5011 Dixie Highway NE, Suite A-308
Palm Bay, Florida 32905
January 21, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I want to take a moment to express my support for the settlement
reached between Microsoft and the Department of Justice in November.
I believe the settlement is reasonable and fair to all sides
involved in this case.
The agreement requires significant changes in Microsoft's
practices. For example, Microsoft will have to design future
versions of Windows that provides a mechanism to make it easy for
computer makers, consumers and software developers to promote non-
Microsoft software within Windows. This will give consumers who do
not like Microsoft products the freedom to change their
configuration at any time.
And to assure compliance with the agreement, Microsoft has
agreed to be monitored by a Technical Committee formed by the
Justice Department.
As a frequent user of Microsoft products, I know firsthand of
the innovation Microsoft has brought to consumers over the years.
This settlement allows Microsoft to shift their focus back to
innovation and away from litigation. This alone makes the settlement
definitely in the public interest.
Thank you for the opportunity to give my public comment on this
matter. Hopefully with your office's continued support of this
settlement, a final conclusion can be reached in the near future.
Sincerely,
Brad Smith
MTC-00029297
From: warren (038) florence schreiner
To: Microsoft ATR
Date: 1/28/02 10:37pm
Subject: Microsoft settlement
I am a relatively newcomer to the PC scene ( about five years)
and have followed the judicial proceedings re the charges involving
monopolistic practices on the part of Microsoft. As a user of
windows 95, 98 and soon XP Home Edition I have only the highest
admiration for the products Microsoft has put out and cannot believe
the country would benefit from the Draconian measures some have
called for. The settlement now proposed between the US government
and Microsoft seems to me to be entirely reasonable from my standing
as a consumer. When I had some dissatisfaction with the browser and
email programs bundled with W 95 I switched to the Navigator
software. Anyone was and is free to do the same. The sane was true
of the McAfee virus protection software from which I switched to
Symantec's. Since then Microsoft has improved its products and in XP
I'll rely on Explorer and Contact Express. Microsoft maintains an
upgrading system and is responsive to complaints about bugs in its
product by providing free patches. I urge you to proceed and
finalize the settlement along the lines as I understand them from
media reports.
Respectfully yours,
Warren C. Schreiner
2351 Stag Run Blvd
Clearwater, FL 33765
727 791 1179
MTC-00029299
From: Vincent Papa
To: Microsoft Settlement
Date: 1/28/02 10:32pm
Subject: Microsoft Settlement
Vincent Papa
1313 Mockingbird Ln.
Mineola, ny 11501
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Vincent Papa
MTC-00029300
From: Huland B. Gardner
To: Microsoft Settlement
Date: 1/28/02 10:33pm
Subject: Microsoft Settlement
Huland B. Gardner
4300 Tartt ``s Mill Rd
Wilson, NC 27893-;7927
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better
[[Page 28556]]
products for consumers, and not wasting valuable resources on
litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views. Let this
stand!!! Enough is ENOUGH !!!
Sincerely,
Huland B Gardner
MTC-00029301
From: Larry Young
To: Microsoft ATR
Date: 1/28/02 10:40pm
Subject: Microsoft Settlement
Please settle the Microsoft case based on the terms agreed
between the Justice Department and Microsoft.
I believe this case has always been about Oracle, Sun and AOL
not wanting to compete in the marketplace. These companies would
rather stifle competition by wasting court time. For sure there are
some actions on Microsoft's part that can be altered, such as
publishing all of the API's to the development community. Making
sure Microsoft treats all companies the same and not withholding
information to competitors, another issue that should be addressed
and is addressed in the Government agreement with Microsoft. However
many of the same policies and procedures are practiced by the
companies that initially brought attention to Microsoft. Oracle is
now bundling their software and is attempting to prevent the Oracle
user from installing products not sold by Oracle. Sun wants to tie
all of its products to Java. AOL refuses to open their Instant
Messenger software to other companies. How can AOL accuse Microsoft
an antitrust violator when AOL may also be an antitrust violator?
Now AOL wants all of its users to stay on servers owned and
maintained by AOL instead of having them surf the Internet.
While Microsoft is attempting to promote sites that have a
relationship with Microsoft they are also big defenders and
promoters of the Internet. If AOL has its way the Net will die on
the vine the way Main Street withers when a Wal-Mart comes to town.
Please allow Microsoft to remain strong to prevent AOL from
destroying the open commerce that is thriving today on the Net.
Oracle, Sun and AOL are laughing while the courts enhance their self
interest by at best stifling and at worse destroying a competitor
they wish not to compete with in the open market place.
Palm
Palm believes Microsoft is destroying their business. Consider
that initially 3Com refused to create a separate company thereby
forcing the hand of the original developers to leave the company.
After the original developers left and started Handspring, 3Com
created the separate company. Now with the loss of prime talent,
Palm has languished. By all accounts it has been the misdirection
and lack of creativity of the Palm management that has allowed
Microsoft to take some market share and create a viable product. Why
should Palm be allowed to be the only product in the market? If this
economy can support more than one automobile company, it can have
the Pocket PC alongside the Palm.
Netscape
Netscape lost the browser war because they did not have the
better product. It doesn't get any simpler than that and now AOL
wants treble damages for making a product that could not compete and
was allowed to languish for years without any effort directed at
fixing the product. Where is the justice?
FTP Software
If any company should have brought Microsoft to court it is this
one. When Microsoft bundled TCP/IP software in the operating system
this company could not survive. Today it is unthinkable to consider
that an operating system can exist with out TCP/IP services. In fact
the UNIX operating systems had this before Microsoft, suggesting
that this was indeed a service that belonged in the operating
system. In the early years Microsoft didn't even have memory
management. That also was provided by a third party. In this case
Norton, now owned by Symantec, has been able to morph into other
areas. Symantec is a company that knows how to create software the
market needs without running to the courts. The point I am trying to
make is that government and the courts should not micromanage the
bundling of products in the operating system. If it was done years
ago then memory management and TCP/IP services would not have become
a part of the operating system. This would have been an incredible
injustice to Microsoft and the consumer. If we cannot see into the
future or look at the present to determine if the customer is
damaged then we should look at the past. Companies like Symantec
would not have become a strong competitor. The operating system
capable of supporting consumers and the business community would not
exist. The computer would still be behind glass walls, out of reach
of the consumer. I only suggest that Microsoft be required to either
sell a feature as a standalone product or be aloud to include the
feature in the operating system.
The number of software companies that have formed and flourished
because of Microsoft is probably greater than any other company. The
number of Microsoft managers and developers that have left to form
their own companies is greater than any other company. Microsoft has
not only brought computing to the masses but enabled an industry to
become world class. These actions have enabled consumers to realize
a marketplace rich in products and services that would not have
happened if Microsoft did not exist. All Sun and Oracle want to do
is sell expensive products that only companies can afford. Sun,
Oracle and AOL do not want to compete fairly in the marketplace. AOL
won't open their messenger product. Oracle bundles and is creating
an operating system under their products. How can Oracle justify
that type of bundling? All these companies want to do is overcharge
the consumer and create products that have no competition. How does
wounding Microsoft help the customer under these circumstances?
I am not an Attorney and therefore I can not even consider the
possibility of forming my thoughts into a cohesive legal brief. I
therefore appreciate the chance to express my feelings about the
case rather than crafting a legal argument.
Thank you.
Larry Young
MTC-00029302
From: Myron Schreiner
To: Microsoft Settlement
Date: 1/28/02 10:36pm
Subject: Microsoft Settlement
Myron Schreiner
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Myron M Schreiner
MTC-00029304
From: Ron Peterson
To: Microsoft ATR
Date: 1/28/02 10:42pm
Subject: Microsoft Settlement
As Microsoft has already been found guilty of abusing it's
monopoly power, I shall confine my comments to the remedy phase of
the trial. At minimum, I hope the court can restore competition to
those markets where Microsoft's abuse of their operating system
monopoly has given them unfair advantage. This would be a minimal
remedy, in the sense that it restores things to the way they should
be, without imposing any punitive damages for Microsoft's illegal
conduct. Speaking as a career systems manager, I live by a
commonplace aphorism: ``Buy computers for the
applications''. Not for the packaging. Not for the fancy
hardware. No,
[[Page 28557]]
not for the operating system. For the ways they extend people's
capabilities. For the applications.
These days, that doesn't leave me much choice. Like Microsoft, I
value the ``freedom to innovate''. I also believe this
freedom should extend to everyone, not just Microsoft. I don't have
that freedom. Microsoft's competitors don't have that freedom
either.
I buy computers that will most cost effectively run Microsoft
operating systems and Microsoft applications, because I must. If I
do not, the people I serve will not be able to effectively
communicate with collegues, clients, patrons, vendors, friends, and
family. Microsoft's dominance in the applications arena hinges on
its proprietary data formats. I cannot reasonably ask my patrons to
run applications that cannot faithfully, reliably, and consistently
both read and write Microsoft documents. However, applications that
meet these criteria do not exist, because Microsoft controls the
format, but does not divulge the operational details. If a
competitor comprehends the format, Microsoft changes it. Microsoft
gets an upgrade fee; the competitor starts over.
There is only one way to restore competition to the market for
computer applications. Microsoft *must* be compelled to divulge its
applications'' file formats. Without this restriction,
Microsoft will continue to monopolize the market for computer
applications indefinitely. Considering that these applications
intrude into almost all aspects of our daily lives--;even, as
I'm sure you are aware, into the very operation of
government--;this situation *must* end.
Additionally, Microsoft must be compelled to divulge the format
of its network protocols. Microsoft understands full well that
compatibility is the key to the kingdom. If they control proprietary
de-facto standards for file formats and networking protocols, they
control everything. Please don't be mislead by so-called
``compromise'' positions advanced by Microsoft that would
open their ``API's'' or Application Programming
Interfaces. This position is simply a ruse to promote further
adoption of Microsoft applications.
If you compell Microsoft to open their file formats and their
networking protocols, you will invigorate the marketplace. You will
compell competition on the merits, rather than binary compatibility.
You will restore the market to where it should have always been. And
you will establish a worthy precedent for how to deal with similar
future abuses of monopoly power in the software marketplace.
Best wishes
Ron Peterson
Network & Systems Manager
Mount Holyoke College
http://www.mtholyoke.edu/rpeterso
MTC-00029305
From: Dave Stewart
To: Microsoft ATR
Date: 1/28/02 10:43pm
Subject: Microsoft Settlement
Attached please find the comments of RealNetworks, Inc.
addressing the Revised Proposed Final Judgment filed by Microsoft,
the Department of Justice and certain plaintiff states.
In the event you have any questions or problems relating to the
transmission of this document, please call Dave Stewart at (206)
892-;6122.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, v. Civil Action No. 98-;1232 (CKK)
MICROSOFT CORPORATION,
Defendant.
STATE OF NEW YORK, et al.,)
Plaintiffs, v. Civil Action No. 98-;1233 (CKK)
MICROSOFT CORPORATION,
Defendant.
COMMENTS OF REALNETWORKS, INC. ON THE REVISED, PROPOSED FINAL
JUDGMENT SUBMITTED BY MICROSOFT CORP., THE U.S. DEPARTMENT OF
JUSTICE AND CERTAIN PLAINTIFF STATES DATED: JANUARY 28, 2002
I. INTRODUCTION
The United States Court of Appeals for the District of Columbia
Circuit has held that, over the last seven years, Microsoft has
engaged in a broad range of anticompetitive conduct seeking to
stifle the development and distribution of innovative middleware
technologies. Microsoft's actions have been directed at
entrepreneurial competitors that have, through innovation and
ground-breaking competition, invented new products, such as internet
browsers, electronic mail, instant messaging, digital imaging,
digital media and voice recognition, that have given rise to
entirely new industries and new sources of consumer welfare. By
imposing an effective remedy to curb Microsoft's anticompetitive
abuses, this Court can help ensure that the varied markets for
innovative middleware products remain fertile ground for competition
and innovation.
Driven by a desire to maintain the dominance of its operating
system monopoly, Microsoft has, as the trial court's factual
findings and the Court of Appeals' opinion demonstrate, consistently
used its monopoly power in a manner that harms consumers and
competition. By manipulating the design of its operating system and
its own middleware products, Microsoft has effectively denied
personal computer manufacturers (``OEMs'') the ability to
choose whether or not they want to include Microsoft middleware
products on the computers they sell and similarly denied consumers
the ability to remove such software from the computers they buy. By
imposing broad, exclusionary licensing restrictions by fiat,
Microsoft has denied OEMs the opportunity to configure their
personal computers in the way they choose, being required instead to
favor Microsoft's middleware products over those offered by
competitors. By entering into exclusive contracts with a broad range
of parties, such as Internet Access Providers (DIAPs�),
Internet Content Providers (DICPs�), Independent Software
Vendors (DISVs�) and Independent Hardware Vendors
(DIHVs�), Microsoft has to a significant extent foreclosed
the distribution of competing middleware products. At every step of
this process, Microsoft has wielded its monopoly power to threaten,
coerce and retaliate against parties that resist its demands.
As a result, Microsoft has effectively denied consumers the
choice of buying a personal computer that is not laden with
Microsoft middleware products. This harms not only today's computer
users, but tomorrow's purchasers of personal computers, cellular
telephones, personal digital assistants, digital home entertainment
centers, set-top boxes, and game consoles, all of whom may have
their choices substantially limited if Microsoft's anticompetitive
curbs on innovation are not constrained today. It is long settled
that such broad findings of liability demand even broader, forward-
looking remedies designed to prohibit Microsoft from continuing its
anticompetitive acts and finding new ways to hinder the growth of
other innovative middleware products. The failure of the last
consent decree agreed to between Microsoft and the Department of
Justice (DDOJ�) in 1995 serves as a stark reminder of the
waste of judicial resources and harm to competition that results
from a narrow, backward-looking remedy. Neither consumers nor
competition will be served through imposition of yet another flawed,
ineffective remedy that will make the next antitrust suit a foregone
conclusion.
Unfortunately, the Revised Proposed Final Judgment offered by
Microsoft, the DOJ and certain states (``RPFJ'') fails to
heed the all-too-recent lessons of history. As discussed herein, the
contours of the RPFJ reflect the concessions required to gain
Microsoft's agreement rather than the safeguards required to
constrain Microsoft's anticompetitive conduct. The loophole-laden
RPFJ is full of exceptions and ambiguities that will not only fail
to terminate Microsoft's anticompetitive conduct, but will ensure
that extended judicial proceedings will be required to clarify, if
not enforce, its provisions.
For the reasons set forth below, RealNetworks respectfully
submits that entry of the RPFJ would not be in the public interest.
II. REALNETWORKS AND THE DIGITAL MEDIA MARKET
RealNetworks, which was founded in Seattle, Washington in
1994,\1\ is a pioneer in the development of digital media technology
and services that enable people to create, deliver, discover, and
play digital audio and video content over the Internet and other
networks, both through downloading and through a method RealNetworks
developed called ``streaming.'' Streaming allows digital
media files to be compressed and broken into packets, then delivered
and decompressed seriatim, so that consumers can enjoy
uninterrupted, real-time broadcasts over the Internet. For example,
following the events of September 11, 2001, CNN streamed its
newscast via the Internet 24 hours a day to
[[Page 28558]]
provide people with immediate access to the breaking news from their
desktops. Innovation in the market for media players has
consistently been driven, not through integration of functionality
into operating systems, but by independent developers creating a new
market for sophisticated digital media technologies with robust and
integrated features and functions. RealNetworks developed the first
streaming media player and the first streaming media server in 1995.
Since then, RealNetworks has continued to lead innovation in the
digital media delivery market, consistently bringing industry-
leading innovations--;such as a built-in radio tuner, delivery
of stereo audio at 28.8 kbps modem speeds, bookmarking of favorite
streams, links to media programming, support for animation, and
automatic updating and just-in-time installation of codecs--;to
consumers ahead of Microsoft. Rather than being a source of
innovation, Microsoft's commingling of its media player into its
operating system has constituted a means by which it has sought to
suppress, rather than spur, innovation and competition.
RealNetworks' technology falls squarely within the Court of Appeals'
definition of middleware as ``software products that expose
their own APIs,'' or Application Programming Interfaces.\2\
---------------------------------------------------------------------------
\1\RealNetworks was originally named Progressive
Networks. It changed its name to RealNetworks in September 1997.
\2\United States v. Microsoft Corp., 253 F.3d 34, 53 (DC
Cir. 2001), cert. denied, 151 L. Ed. 2d 264, 122 S. Ct. 350, 70
U.S.L.W. 3267 (2001). APIs are interfaces exposed by operating
systems and middleware that support the functions of software
programs, called ``applications,'' that perform specific
user-oriented tasks. APIs ``are synapses at which the developer
of an application can connect to invoke pre-fabricated blocks of
code in the operating system. These block of code in turn blocks of
code in the operating system. These blocks of code in turn perform
crucial tasks, such as displaying text on the computer
screen.'' United States v. Microsoft Corp., 84 F. Supp. 2d 9, N
2 (D.DC 1999), aff'd, 253 F.3d 34 (DC Cir. 2001), cert. denied, 151
L. Ed. 2d 264, 122 S. Ct. 350, 70 U.S.L.W. 3267 (2001).
---------------------------------------------------------------------------
RealNetworks makes available software development kits to enable
software developers to build applications and extensions using
RealNetworks' technologies to create, deliver and playback digital
media. Over 500 ISVs are developing applications using RealNetworks
SDKs and websites that provide access to content in RealNetworks'
RealAudio and RealVideo formats utilize RealNetworks' middleware.
Microsoft competes with RealNetworks in seeking to convince software
developers and content providers to build applications using their
respective technologies. Applications created using RealNetworks'
technology include news broadcasts, distance learning, financial
reporting, security for streamed and downloaded content, radio
broadcast services, music subscription services, video-on-demand
services, web conferencing, e-commerce services and more. One need
only look as far as the extensive use of RealNetworks' technology in
the pervasive Internet coverage of the events of September 11th to
see how important and pervasive such technologies are becoming.
alNetworks offers a universal platform designed to provide the
highest quality digital media creation, delivery, playback and
security experience across multiple operating systems, transport
technologies, media formats and digital devices. This RealSystem
technology works on over 20 different operating systems (e.g., Unix,
Linux, Windows, Solaris, AIX, HP/UX, Symbian), delivers and plays
over 50 different formats or datatypes (e.g., MP3, MPEG-1, MPEG-2,
MPEG-4, Quicktime, Macromedia Flash, RealAudio, RealVideo), and
works with a wide variety of digital devices (e.g., personal
computers, Sony PlayStation2, Hewlett Packard's Digital
Entertainment Center, Nokia cell phones, portable music players and
personal digital assistants). Applications built using RealNetworks'
technology are operating system independent, so that consumers,
content providers, businesses, network operators, and others using
such applications do not need to install Windows operating systems
on either their personal computers or on the servers that deliver
media.
The opportunities for digital media are enormous. The current
U.S. market for audio and visual media amounts to over $200 billion
per year.\3\
---------------------------------------------------------------------------
\3\See ``Market Opportunity'' Adapted from
source: Kagan World Media estimates 2001.
---------------------------------------------------------------------------
Current estimates for spending in the streaming digital media
sector alone exceed $10 billion by 2010.\4\
---------------------------------------------------------------------------
\4\See ``Streaming Media Market Growth,''
Source: Paul Kagan Associates Streaming Media Investor.
---------------------------------------------------------------------------
The pace of innovation and adoption of digital media is rapidly
increasing as more content is digitized, more consumer electronics
equipment supports digital formats and broadband growth continues to
accelerate. By 2007, there will be an estimated 120 million
streaming media users in the U.S. alone.\5\
---------------------------------------------------------------------------
\5\See ``Total Active Streaming Media Users,''
Source: Kagan World Media, June 2001.
---------------------------------------------------------------------------
There are over 10 million broadband customers in the U.S., a
number expected to grow to over 35 million by 2006.\6\
---------------------------------------------------------------------------
\6\See ``Consumer Broadband Adoption Blooms over the
Next Five Years,'' Source: Jupiter MMXI.
---------------------------------------------------------------------------
Broadband use is important because it greatly improves and
facilitates streaming media resulting in significantly higher
streaming media usage rates.\7\
---------------------------------------------------------------------------
\7\See ``Percent of U.S. home Internet users
accessing streaming media,'' Source: Nielsen/NetRatings, July
2001.
---------------------------------------------------------------------------
III. THE COURT HAS BROAD AUTHORITY TO ENSURE THAT THE REMEDY
IMPOSED PROHIBITS MICROSOFT FROM AGAIN LIMITING THE DEVELOPMENT OF
MIDDLEWARE IN AN ILLEGAL MANNER.
In affirming the trial court's holding that Microsoft illegally
maintained its operating system monopoly, the Court of Appeals
broadly condemned a wide range of actions through which Microsoft
attempted to reduce usage of competing middleware products.\8\
---------------------------------------------------------------------------
\8\See Microsoft, 253 F.3d at 60. Assistant Attorney
General Charles A. James acknowledged that this was a middleware
case, a middleware case, a middleware case. Mark Wigfield, Antitrust
Chief Defends Government's Settlement with Microsoft, DOW JONES
NEWSWIRES, Nov. 16, 2001.
---------------------------------------------------------------------------
Under the reasoning of the Court of Appeals' decision, actions
taken by Microsoft that have the effect of hindering competing
middleware developers from gaining the critical mass of users
necessary to attract developer attention away from Windows as the
platform for software development--;other than Microsoft's
efforts to improve the quality of its own products violate Section 2
of the Sherman Act.\9\
---------------------------------------------------------------------------
\9\Id. at 60, 62.
---------------------------------------------------------------------------
Among other things, the court condemned Microsoft's conduct that
falls within the following four broad categories: (1) licensing
restrictions limiting the ability of personal computer original
equipment manufacturers (OEMs) to configure their personal computers
in the manner they determine to be appropriate;\10\
---------------------------------------------------------------------------
\10\Id. at 59-;64.
---------------------------------------------------------------------------
(2) Microsoft's design of the Windows operating systems and
Microsoft Middleware in a manner that limits the ability of OEMs and
consumers to remove Middleware code from the operating
system;\11\
---------------------------------------------------------------------------
\11\Id. at 64-;67.
---------------------------------------------------------------------------
(3) Microsoft's entry into exclusive contracts designed to limit
usage of competing middleware products\12\ and (4)
Microsoft's threats and intimidation designed to limit the
development and distribution of middleware.\13\
---------------------------------------------------------------------------
\12\Id. at 70-;73, 75-;76.
\13\Id. at 77-;78.
---------------------------------------------------------------------------
In condemning Microsoft's actions, the Court of Appeals rejected
Microsoft's assertions that integrating Middleware into the
operating system or otherwise attempting to keep developers focused
upon its APIs somehow provides any procompetitive justification for
Microsoft's actions.\14\
---------------------------------------------------------------------------
\14\See id. at 71.
---------------------------------------------------------------------------
A. The Breadth Of The Court Of Appeals' Liability Holding
Demands Imposition Of Broad Remedies
The guiding principles underlying our antitrust laws make clear
that the broad grounds of liability affirmed by the Court of Appeals
demand imposition of an even broader range of remedies. The Supreme
Court has repeatedly held that, in enacting the Sherman Act,
Congress sought to ``preserv[e] free and unfettered competition
as the rule of trade.''\15\
---------------------------------------------------------------------------
\15\Northern Pacific Railway Co. v. United States, 356
U.S. 1, 4 (1958). See also National Society of Professional
Engineers v. United States, 435 U.S. 679, 692 (1978); United States
v. Crescent Amusement Co., 323 U.S. 173, 187 (1944).
---------------------------------------------------------------------------
This need to safeguard free competition is a direct result of
the fundamental premise of our economic system that unrestrained
interaction of competitive forces will yield the best allocation of
our economic resources, the lowest prices, the highest quality and
the greatest material progress, while at the same time providing an
environment conducive to the preservation of our democratic
political and social institutions.\16\
---------------------------------------------------------------------------
\16\Northern Pacific Railway, 356 U.S. at 4. See also
National Society of Professional Engineers, 435 U.S. at 695.
---------------------------------------------------------------------------
This policy is embodied in two types of legal
standards--;those applied to the liability phase of antitrust
cases and those governing the relief phase. As the Supreme Court has
observed, the formulation of adequate remedies is the most
significant phase of the
[[Page 28559]]
case.\17\ Courts have broad discretion during the relief phase to
ensure that the antitrust remedies imposed ``effectively pry
open to competition a market that has been closed by
defendants'' illegal restraints.''\18\
---------------------------------------------------------------------------
\17\United States v. Glaxo Group, Ltd., 410 U.S. 52, 64
(1973).
\18\International Salt Co. v. United States, 332 U.S.
392, 401 (1947). See also 2 P.A REEDA & H. H OVENKAMP, A
NTITRUST LAW 325 (2000) [hereinafter A REEDA.
---------------------------------------------------------------------------
An antitrust decree must ``break up or render impotent the
monopoly power found to be in violation of the
Act.''\19\
---------------------------------------------------------------------------
\19\United States v. Grinnell Corp., 384 U.S. 563, 577
(1966). See also United States v. United Shoe Machinery Corp., 391
U.S. 244, 251 (1968); Schine Chain Theatres, Inc. v. United States,
334 U.S. 110, 128-;29 (1948).
---------------------------------------------------------------------------
In other words, the decree must leave the defendant without the
ability to resume the actions which constituted the antitrust
violation in the first place.\20\
---------------------------------------------------------------------------
\20\United States v. AT&T, 552 F. Supp. 131, 151
(D.DC 1982), aff'd sub nom., Maryland v. United States, 460 U.S.
1001 (1983).
---------------------------------------------------------------------------
For these reasons, the decree should not be limited to past
violations; it must also effectively foreclose the possibility that
similar antitrust violations will occur or recur. As the Court noted
in International Salt, it is not necessary that all of the
untraveled roads to [anticompetitive conduct] be left open and that
only the worn one be closed. The usual ways to the prohibited goals
may be blocked against the proven transgressor.\21\
---------------------------------------------------------------------------
\21\International Salt, 332 U.S. at 400. See also
National Society of Professional Engineers, 435 U.S. at
697-;98; United States v. United States Gypsum Co., 340 U.S.
76, 88 (1950); Associated Press v. United States, 326 U.S. 1, 22
(1945); Crescent Amusement, 323 U.S. at 188; United States v. United
Shoe Machinery Corp., 110 F. Supp. at 346-;47.
---------------------------------------------------------------------------
In evaluating the adequacy of an antitrust remedy, the court's
inquiry necessarily looks forward, considering evidence that was not
necessarily placed in the trial record and, indeed, may not have
even been in existence at the time of trial.\22\
---------------------------------------------------------------------------
\22\2 A REEDA at 325c.
---------------------------------------------------------------------------
It is long settled that the Court may at the relief stage
prohibit practices that have not been found unlawful if such a
prohibition is necessary to avoid the recurrence of
monopolization.\23\
---------------------------------------------------------------------------
\23\United States v. United Shoe Machinery Corp., 110 F.
Supp. 295, 346-;47 (D. Mass. 1953), aff'd, 347 U.S. 521 (1954).
See also Hartford-Empire Co. v. United States, 323 U.S. 386, 409
(1945).
---------------------------------------------------------------------------
In addition, restraints may be imposed upon the defendant that
are designed to allow the development of nascent competition within
the relevant market.\24\
---------------------------------------------------------------------------
\24\Ford Motor Co. v. United States, 405 U.S. 562, 575,
578 (1972).
---------------------------------------------------------------------------
Such a remedy is critical here, given the Court of Appeals'
explicit conclusions regarding the nascent potential of middleware
to erode the applications barrier to entry that protects Microsoft's
operating system monopoly.\25\
---------------------------------------------------------------------------
\25\253 F.3d at 53-;55.
---------------------------------------------------------------------------
B.The Antitrust Procedures And Penalties Act Authorizes The
Court To Engage In A Broad Inquiry To Determine The Adequacy Of The
Proposed Decree
Congress has directed the Court here to determine whether entry
of the RPFJ is in the public interest. In making that determination,
the Antitrust Procedures and Penalties Act authorizes the Court to
undertake a wide-ranging inquiry into two broad areas of evaluation.
First, the Court is to consider the competitive impact of the
proposed consent decree, including whether the proposed decree would
actually terminate the defendant's violations and whether the
proposed decree's enforcement provisions are adequate. In making
this determination, the statute expressly authorizes the court to
consider the anticipated effectiveness of alternative remedies, as
well as any other considerations bearing upon the adequacy of such
judgment.\26\
---------------------------------------------------------------------------
\26\15 U.S.C. 16(e)(1).
---------------------------------------------------------------------------
Second, the statute authorizes the court to consider the impact
of the proposed decree on the public generally and on those
individuals harmed by Microsoft's violations of the Sherman Act.\27\
Highly relevant to both of these areas of inquiry is the clarity
ofthe proposed decree. As the Court of Appeals has recognized, the
district judge who must preside over the implementation of the
decree is certainly entitled to insist on that degree of precision
concerning the resolution of known issues as to make [her] task, in
resolving subsequent disputes, reasonably manageable.\28\
---------------------------------------------------------------------------
\27\Id. at 16(e)(2).
\28\United States v. Microsoft Corp., 56 F.3d 1448,
1461-;62 (DC Cir. 1995).
---------------------------------------------------------------------------
In this way, Congress intends the courts to be an
``independent force'' in reviewing the adequacy of
proposed consent decrees.\29\ As broad as this language is, it is
clear that the statute which references alleged violations rather
than violations proven at trial, as well as benefits to be derived
from a determination of the issues at trial\30\
---------------------------------------------------------------------------
\29\Antitrust Procedures and Penalties Act: Hearings on
S. 782 and S.1088 Before the Subcomm. on Antitrust and Monopoly of
the Senate Comm. On the Judiciary, 93rd Cong., 1st Sess. 1 (1973)
(statement of Sen. Tunney).
\30\See id. at 16(e)(1-;2).
---------------------------------------------------------------------------
--;primarily contemplates review of consent decrees settling
claims that have not yet been adjudicated. Where, as here, federal
and state antitrust enforcers have actually proven during the course
of a 76-day bench trial that Microsoft illegally maintained its
operating system monopoly in violation of the Sherman Act, and that
holding has been affirmed on appeal, the court's powers of review
are at their maximum level. Unlike Judge Sporkin's review of the
DOJ's previous, ill-fated consent decree with Microsoft, which
settled claims that had not been proven, this is not a case in which
the court's review will implicate the DOJ's prosecutorial discretion
in framing the complaint and in appraising whether to pursue its
claims through trial, nor does it raise the constitutional concerns
of impinging upon the prosecutorial discretion of the executive
branch.\31\
---------------------------------------------------------------------------
\31\See United States v. Microsoft Corp., 56 F.3d at
1455, 1457-;59. and ensure that there remain no practices
likely to result in monopolization in the future.
---------------------------------------------------------------------------
Because the Court's determination here is concerned solely with
the proper extent of the remedies to be imposed to redress proven
violations of the Sherman Act, the Court's evaluation of this
proposed decree should be guided by the well-settled principles
governing the adequacy of antitrust remedies. As set forth below,
careful review of the proposed consent decree demonstrates that it
falls woefully short of meeting these standards, which were
reflected in the Court of Appeals' admonition that the remedy for
Microsoft's illegal acts must seek to unfetter [the] market from
anti-competitive conduct, to terminate the illegal monopoly, deny to
the defendant the fruits of its statutory violation,\32\
---------------------------------------------------------------------------
\32\253 F.3d at 103 (quoting Ford Motor, 405 U.S. at 577,
and United Shoe Machinery, 391 U.S. at 250).
---------------------------------------------------------------------------
IV. THE RPFJ NEITHER FREES THE MARKET FROM MICROSOFT'S
ANTICOMPETITIVE CONDUCT NOR DENIES MICROSOFT THE FRUITS OF ITS
ILLEGAL CONDUCT.
The RPFJ fails to satisfy the Court's clear and simple standard.
The RPFJ neither terminates Microsoft's illegal monopoly nor denies
it the fruits of its statutory violations. It fails to ensure that
no practices remain that are likely to result in future
monopolization. Certainly, Microsoft's current dominance in the
browser market for personal computers is a fruit of its illegal
conduct. The RPFJ reads like a tacit approval of Microsoft's newly
imposed browser monopoly; indeed, it is not even mentioned in the
DOJ's Competitive Impact Statement (CIS). Nor does the CIS address
how the RPFJ is designed to terminate the illegal monopoly or
restore JAVA to the position it would have held absent the illegal
conduct. The CIS is silent regarding the market conditions that
would currently exist were it not for Microsoft's anticompetitive
acts market conditions that should be restored as part of any
adequate remedy. The RPFJ fails to understand and address the long-
term impact of Microsoft's conduct.
Moreover, the RPFJ's provisions are vague, internally
inconsistent and replete with exceptions and loopholes that will
allow a determined and proven illegal monopolist to delay and even
avoid the remedies. Indeed, the many instances in which the CIS
reads into the RPFJ substantial additional terms/restrictions
necessary to create a reasonable interpretation of the provisions
foreshadows the difficulty of enforcing the RPFJ. Disagreements at
this stage between the parties to the RPFJ will pale in comparison
to the disagreements that will arise between Microsoft on the one
hand and antitrust regulators and impacted parties on the other hand
as the Court seeks to enforce the RPFJ. Because it provides
insufficient remedies relating to middleware, OEM/ISV flexibility,
information disclosure and enforcement, it is likely that Microsoft
will be able to continue with many of its current anticompetitive
practices virtually unchanged. In addition, it in effect imposes
upon Microsoft's competitors several restrictions and conditions on
doing business and innovating that do not exist today. This
following discussion outlines only some of the deficiencies in the
RPFJ. It is not intended to
[[Page 28560]]
be an exhaustive review of the deficiencies and implications of the
proposed settlement.
A. The RPFJ's Definitions Are Confusing, Inadequate And Create
Loopholes And Exceptions To The Actual Remedial Provisions.
Unfortunately, the definitions set forth in the RPFJ severely
undermine the RPFJ's proposed remedies by offering a number of
significant loopholes and exceptions to the application of the
remedial provisions. By contrast, the Litigating States have
proposed a set of definitions that do not allow Microsoft to avoid
application of the remedial provisions and that are designed to
create a more certain and fair remedial framework. A sample of some
of the more obvious definitional problems are addressed below.
1. Incredibly, the definition of ``Windows Operating System
Product'' states that: The software code that comprises a
Windows Operating System Product shall be determined by Microsoft in
its sole discretion. This provision appears to allow Microsoft to
avoid any future claim for illegally tying applications to the
operating system, which clearly could not have been the DOJ's intent
nor would this be consistent with established legal doctrine
concerning illegal tying. However, as written, Microsoft could
declare that Microsoft Office, including Word and Excel, is part of
the operating system with apparent impunity. This provision also
allows Microsoft to gerrymander whether a given set of functions
will be placed in the operating system, middleware or an application
depending on whether Microsoft is attempting to avoid the
requirements of the remedies. For example, because Microsoft need
only disclose APIs relating to Microsoft Middleware, Microsoft could
declare that applications that would otherwise qualify as Microsoft
Middleware are instead part of the operating system. This provision
creates a serious loophole in the RPFJ and also conflicts with the
definitions for middleware contained in the RPFJ.
There is no indication in the CIS as to how these issues would
be addressed under the RPFJ. 2. The definition of Timely Manner
leaves it to Microsoft to decide when it will disclose APIs. Because
it is triggered by the date Microsoft first releases a beta version
of its operating system to more than 150,000 testers, Microsoft can
simply limit the number of testers to 149,999 and thereby avoid
disclosing APIs until it is too late for competing ISVs to make
effective use of the information. This is strikingly easy to
manipulate. By contrast, the Litigating States have proposed a
reasonable solution that generally requires Microsoft to disclose
information to third parties at the same time it makes the
information available to its own developers or to any third party,
reflecting the importance of early access to APIs to foster fair
competition.
3. The definition of Microsoft Middleware, upon which the
application of Sections III.D (Information Disclosure) and III.G.2
(Exclusive Dealing) depend, is designed to exclude a large body of
Microsoft middleware. Moreover, there is a confusingly similar,
though subtly different, definition for Microsoft Middleware
Product. Incredibly, under the definition of Microsoft Middleware,
Microsoft may even argue that the Windows Media Player 8.0 does not
constitute Microsoft Middleware, despite the trial court's
recognition that media players are middleware,\33\ because it is no
longer distributed separately from the operating system.\34\
---------------------------------------------------------------------------
\33\84 F. Supp. 2d at 78, 104-;114.
\34\Although previous versions of the Windows Media
Player are distributed separately from the Windows operating
systems, Microsoft now requires consumers to purchase Windows XP to
acquire Windows Media Player 8.0.
---------------------------------------------------------------------------
The consequence of this provision is that Microsoft would not
have to disclose any APIs relating to any middleware that is not
Microsoft Middleware. Moreover, Microsoft could freely engage in
exclusive dealing with IAPs and ICPs with respect to such middleware
under Section III.G.2 because that provision relates only to
Microsoft Middleware. Microsoft should be required to clearly state
its position in this regard before the efficacy of the remedy can be
judged.
4. The definition of Microsoft Middleware Product, which is
pivotal to a number of provisions relating to middleware relief
(e.g., III.C, III.G., III.H, definition of Microsoft Platform
Software), contains substantial loopholes and exceptions. For
example, Microsoft Middleware Products must be Trademarked or they
are free of the RPFJs remedial provisions. The definition of
Trademarked is itself problematic, as described below. Any product
using a generic or descriptive word with the trademarks Microsoft
and/or Windows would not be a Microsoft Middleware Product. There is
no valid, pro-competitive reason to apply a remedy according to how
Microsoft chooses to name its middleware. In addition, the Microsoft
Middleware Product is limited to Microsoft middleware that was
distributed separately in the past year and is similar in
functionality to other middleware on the market. Thus, if
Microsoft's middleware is first to market, it could be argued that
it is not a Microsoft Middleware Product. This creates unnecessary
ambiguity, and the rationale for this loophole is unclear. It is
also unclear why the definition of Microsoft Middleware Product is
limited to functionality provided by certain products, rather than
the products themselves. Microsoft can use this subtlety to further
limit the application of the RPFJ's remedial provisions.
5. The definition for Non-Microsoft Middleware Product is
unreasonably limited to products of which more than one million
copies were distributed in the prior year. This is a huge number of
copies (and affected consumers) that will take a great deal of time,
money and resources for most middleware companies to reach. This
will allow Microsoft to engage in its anticompetitive acts against
small middleware providers during their most vulnerable beginnings.
Moreover, if a middleware distributor delivered 900,000 copies year
after year to new customers, they would never be protected under the
settlement despite the fact that they may have millions of
customers. This provision is distinctly anti-innovation, because it
allows Microsoft to deny technology access to small, entrepreneurial
companies with innovative new technologies--;just the type of
company Microsoft was in its earliest days. Finally, the RPFJ does
not 14 address how new versions of existing middleware products will
be counted. Must they accumulate one million distributions of each
new version before they are protected? This type of unanswered
question creates substantial ambiguity and room for disagreement
going forward.
6. The definition of Top-Level Window is limited to windows that
have their own window controls, like move and resize, enable sub-
windows, and contain user interface elements under the control of at
least one independent process. This definition is critical because
it determines whether middleware is entitled to certain remedial
provisions pursuant to Section III.H of the RPFJ. This loophole
allows Microsoft substantial control over whether competing
middleware will get the benefit of the remedies. Microsoft could
engineer its middleware to launch without using all of the Top-Level
Window components and argue that competing middleware cannot avail
itself of the remedy. Whether or not Microsoft's middleware enables
sub-windows certainly should not be the determining factor as to
whether competing middleware is entitled to a remedy.
7. The definition of Trademarked does not include [a]ny product
distributed under descriptive or generic terms or a name comprised
of the Microsoft and/or Windows trademarks together with descriptive
or generic terms. This definition is critically important because
whether any Microsoft product can be Microsoft Middleware or a
Microsoft Middleware Product inexplicably depends upon whether the
product is Trademarked. Under the definition, products named
Microsoft Windows Radio, Microsoft Windows TV, Microsoft Windows
Theater, Microsoft Windows Music, etc. arguably could not be either
Microsoft Middleware or Microsoft Middleware Products, regardless of
functionality because they would not be Trademarked. The inclusion
of the requirement that any Microsoft Middleware or Microsoft
Middleware Product be Trademarked before it is included in the
definition provides Microsoft a handy loophole to avoid the RPFJ's
remedial provisions. The Litigating States have not allowed this
type of loophole in their remedy proposal.
8. The definition of API is unduly narrow and limited to
Microsoft Middleware rather than including Microsoft Middleware
Products and other Microsoft applications that call on functionality
included in, or bundled with, the operating system. The definition
is circular in that, rather than requiring Microsoft to disclose to
competing middleware developers the same interfaces and related
information that it discloses to its own application developers, it
allows Microsoft to manipulate the interfaces that it will define in
an API and thereby limit all related information. In addition, the
related term, Documentation, is also unduly limited to only the
documentation that Microsoft currently makes available on its
Microsoft Developer Network (MSDN) network.
[[Page 28561]]
Competing middleware providers should be entitled to all of the
documentation and information available to Microsoft's application
developers and in no event less than that typically made available
on MSDN. B.The RPFJ Does Not Effectively Prevent Microsoft From
Using Anticompetitive Tactics Against Competing Middleware. The
Court of Appeals held that Microsoft's restrictions limiting the
ability of OEMs to configure their personal computers in a manner
that promotes the use of non-Microsoft middleware violates the
Sherman Act.\35\
---------------------------------------------------------------------------
\35\Id. at 59-;64.
---------------------------------------------------------------------------
In any effective remedy, OEMs, ISVs and others must be free to
bundle, distribute and promote non-Microsoft middleware applications
with their products and completely remove Microsoft middleware.
They, and end users, must be free to automatically launch competing
middleware at any time and must be free to set that middleware as
the default applications under any circumstances, irrespective of
what Microsoft's middleware does or does not do. Microsoft should
not be able to use its operating system monopoly to override the
considered decisions of consumers, OEMs and ISVs without explicit
consumer consent, or to automatically prompt consumers override such
choices. Whether Microsoft has competing middleware is utterly
irrelevant to the threat posed to Microsoft's monopoly operating
system by middleware and should not form the basis for the many
exclusions provided in the proposed Settlement. The Litigating
States have in fact suggested remedies that accomplish these goals
without providing Microsoft a litany of loopholes. Section III.H
purports to provide some limited additional freedom to allow OEMs
and third parties to use competing middleware. Unfortunately, the
provision is undermined by exceptions and limitations that fail to
comply with the Court of Appeals' admonitions regarding OEM freedom
and protection for competing middleware. Section III.H.3 limits
Microsoft's ability to use its Windows Operating System Product to
override the freedoms granted to OEMs, but that limitation only
lasts for fourteen days, after which Microsoft is completely free to
use its commingled and bundled middleware to override the OEM
configurations. Microsoft can use this gaping loophole to override
OEM/consumer choice instantly, automatically, and without notice to
consumers to OEMs as long as Microsoft does so through its
commingled middleware, rather than through its operating system.
Furthermore, a mere fourteen days after an end user starts using his
or her personal computer, Microsoft can use its monopoly operating
system to recommend that the user change his or her default settings
to favor Microsoft middleware to the exclusion of competing
middleware. Thus, on day fifteen we can expect Windows to start a
daily process of exhorting the user to reject competing middleware.
Windows XP currently uses similar behaviors to consistently attempt
to reclaim default status for its favored Microsoft middleware. For
example, even after a user has selected competing middleware to play
back CDs, Windows XP prompts the user to change to Windows Media
Player when a CD is inserted. The prompt includes Windows Media
Player as the preselected application at the top of the list.
The exception provided in the last paragraph of Section III.H.
limits application of that section to Microsoft Middleware Products
that exist more than seven months prior to the last beta test
version of the operating system. This loophole allows Microsoft to
engineer its releases of new middleware to be less than seven months
from the final beta in order to completely avoid the remedial
provisions in Section III.H. For instance, because Windows Media
Player 8 was released within 7 months of the final beta for Windows
XP, Microsoft can be expected to argue that competing middleware
would not be entitled to the protections of Section III.H.
Certainly, this could not be the intended result of the language and
the Court must ensure that the parties to the RPFJ clarify the
interpretation of the exception to avoid such unintended results.
Oddly, the RPFJ's limitations protect Microsoft's middleware from
innovative competitors. For instance, Section III.H.2 allows OEMs to
set competing middleware as the default only if Microsoft has a
Microsoft Middleware Product that would otherwise launch in its own
separate Top-Level Window. There is no legal or procompetitive
justification for so limiting OEMs, ISVs or end users based on the
existence or performance of Microsoft middleware products. As the
Court of Appeals recognized, middleware is important because it has
the potential to erode Microsoft's operating system monopoly and the
applications barrier to entry that protects it.\36\
---------------------------------------------------------------------------
\36\Id. at 53-;55.
---------------------------------------------------------------------------
Conditioning middleware protections on actions within
Microsoft's control obviously presents Microsoft with the ability to
manipulate its software design, as it has in the past, in a manner
that will further impede the development and distribution of
competing middleware products. Whether Microsoft has competing
middleware and by extension the performance characteristics of that
middleware is irrelevant to the nascent threat that middleware poses
to Microsoft's operating system monopoly and ignores its past
anticompetitive efforts to harm competing middleware. Third party
innovators should not be excluded from the application of the RPFJ
until and Microsoft first develops its own competing product. In the
CIS, the DOJ states that Microsoft Middleware is the concept that
triggers Microsoft's obligations, including those relating to
Microsoft's licensing and disclosure obligations without providing
any rationale.\37\
---------------------------------------------------------------------------
\37\Pl. DOJ's Competitive Impact Statement at 17-;18
(Nov. 15, 2001) [hereinafter CIS].
---------------------------------------------------------------------------
The applicability of the remedies set forth in Sections III.C.3,
H.1 and H.2 should not depend upon the presence or performance of
Microsoft's middleware in any way, nor should any other provision.
Section III.H.1 of the RPFJ allows Microsoft to override OEM
configurations and consumer choice for default middleware as long as
Microsoft uses one of its own servers to communicate with its own
competing middleware. This allows Microsoft to use its Passport,
MSN, Dot.net, Hotmail and other servers to avoid and override the
explicit choices made by OEMs/ISVs and consumers. Section III.H.1
has no procompetitive justification and once again places competing
middleware at an unfair disadvantage. The RPFJ would grant Microsoft
the right to require consumers who expressly choose to use Non-
Microsoft Middleware to subsequently confirm their choices to
Microsoft. Some Non-Microsoft middleware products provide consumers
with an opportunity to choose whether to establish the middleware
product as the default for certain functions and, if so, to
authorize the middleware product to protect against attempts by
Microsoft to override the consumer's choice. Rather than requiring
Microsoft to honor such consumer choices, Section III.H.2 would
allow Microsoft to require the consumer to confirm his or her choice
every time Microsoft attacks it.
C. The RPFJ Does Not Provide OEMs With Appropriate Freedom To
Choose Competing Middleware, Remove Microsoft Middleware, And
Customize The User Interfaces, Menus, Desktop And Other Windows
Elements.
The need for an effective remedy that prevents Microsoft from
illegally abusing its operating system monopoly to harm competitors
is beyond dispute. The undisputed facts, as found by the trial court
and affirmed by the Court of Appeals, establish in detail the broad
power that Microsoft possesses over OEMs and the broad manner in
which it has abused that power to maintain its monopoly in violation
of the Sherman Act. As the DOJ and the plaintiff States proved in
this litigation, Microsoft's operating system monopoly grants it
tremendous sway over OEMs. For example, in June 1996 Compaq
executives opined that their firm could not continue in business for
long without a license for Windows.\38\
---------------------------------------------------------------------------
\38\38 84 F. Supp. 2d at 206
---------------------------------------------------------------------------
This is consistent with Hewlett Packard's lament to Microsoft in
March 1997 that [i]f we had a choice of another supplier, based on
your actions in this area, I assure you [that you] would not be our
supplier of choice.\39\.
---------------------------------------------------------------------------
\39\Id. at 214 (bracketed text in original).
---------------------------------------------------------------------------
Based on such statements, the trial court found that OEMs had no
commercially viable alternative to pre-installing the Windows
operating system on their personal computers.\40\
---------------------------------------------------------------------------
\40\Id. at 158.
---------------------------------------------------------------------------
Moreover, Microsoft's power has actually increased since the
trial court made its findings in 1999: according to the
International Data Corporation, from 1999 to 2000 Microsoft's share
of the client operating system market, including Apple's Mac OS,
increased by 10.6% to 95.4% (when measured by shipment and upgrade
revenue) and by 11.1% to 92.6% (when measured by new license
shipments).\41\ As the trial court
[[Page 28562]]
found, Microsoft has used its monopoly power to impose its will on
OEMs.\42\
---------------------------------------------------------------------------
\41\INTERNATIONAL DATA CORPORATION, WORLDWIDE CLIENT AND
SERVER OPERATING ENVIRONMENTS MARKET FORECAST AND ANALYSIS SUMMARY
2001-;2005 at 11-;12 (Aug. 2001).
\42\For example, Microsoft delayed release of Windows 98
so as to miss the holiday shopping season in 1996 contrary to the
OEMs' economic interests, as well as Microsoft's own economically
rational interests solely to ensure that Internet Explorer 4.0 could
be commingled into the operating system, regardless of the economic
suffering imposed on OEMs in terms of lost sales. 84 F. Supp. 2d at
167 (Maritz agreed with Allchin's point that synchronizing the
release of Windows 98 with Internet Explorer was the only thing that
makes sense even if OEMs suffer.'')
---------------------------------------------------------------------------
First, Microsoft has used its monopoly power to force OEMs to
take its middleware applications with its operating system and, by
forbidding them to remove or obscure Microsoft middleware, has
ensured ubiquity for its middleware while increasing the costs of
competing middleware developers.\43\
---------------------------------------------------------------------------
\43\Id. at 203-;08, 213, 241.
---------------------------------------------------------------------------
Second, Microsoft has used its power to impose restrictions on
OEMs that have had the effect of restricting consumer access to
competing middleware and increasing the costs that competing
middleware developers must incur to promote their products.\44\
---------------------------------------------------------------------------
\44\Id. at 241, 240.
---------------------------------------------------------------------------
Third, Microsoft has used its power to threaten and retaliate
against OEMs that did not accede to its wishes.\45\
---------------------------------------------------------------------------
\45\Id. at 230, 235-;38, 241.
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Finally, Microsoft has offered OEMs valuable consideration,
which OEMs must accept in order to remain competitive with other
OEMs, as a means of coercion in connection with these efforts.\46\
---------------------------------------------------------------------------
\46\Id. at 213-;15, 230-;31, 236-;37, 241.
---------------------------------------------------------------------------
As the trial court found, the OEMs obeyed [Microsoft's]
restrictions because they perceived no alternative to licensing
Windows for pre-installation on their PCs.\47\
---------------------------------------------------------------------------
\47\47 Id. at 215.
---------------------------------------------------------------------------
As a result, the trial court concluded that Microsoft's actions
have stifled innovation by OEMs that might have made Windows PC
systems easier to use and more attractive to consumers,\48\ which is
diametrically opposed to Microsoft's legitimate interests as an
operating system developer.
---------------------------------------------------------------------------
\48\48 Id. at 241.
---------------------------------------------------------------------------
Plainly, any effective remedy for Microsoft's anticompetitive
conduct must put an end to such practices. The RPFJ, however, falls
woefully short of either unfettering OEMs from Microsoft's control
or ensuring that Microsoft will not continue to impose restrictions
on OEMs that harm the development of competing middleware.
1. The RPFJ does not require Microsoft to allow OEMs to remove
its middleware from Windows
The RPFJ does not even allow OEMs and end users to completely
uninstall and remove Microsoft's middleware once they have acquired
the bundled products. In affirming the trial court's conclusion that
Microsoft illegally maintained its operating system monopoly in
violation of the Sherman Act, the Court of Appeals twice held that
Microsoft's design of Windows in a manner that denied OEMs the
ability to remove middleware specifically, Internet Explorer from
Windows operating systems is anticompetitive because it deters OEMs
from pre-installing rival browsers, thereby reducing the rivals'
usage share and, hence, developers' interest in rivals APIs as an
alternative to the API set exposed by Microsoft's operating
system.\49\
---------------------------------------------------------------------------
\49\253 F.3d at 64-;66.
---------------------------------------------------------------------------
Moreover, the Court explicitly rejected Microsoft's assertions
that such integration is highly efficient and provides substantial
benefits to customers and developers, concluding instead that See
also Order (DC Cir. Aug, 2, 2001)(per curiam)(denying Microsoft's
petition for rehearing on the commingling issue). Indeed, in denying
Microsoft's petition for rehearing on this issue in the clearest
possible terms, the Court pointedly advised the parties that
[n]othing in the Court's opinion is intended to preclude the
District Court's consideration of remedy issues. Id. Microsoft was
simply protect[ing] its operating system monopoly from a middleware
threat in violation of Section 2 of the Sherman Act.\50\
---------------------------------------------------------------------------
\50\253 F.3d at 66-;67.
---------------------------------------------------------------------------
Notwithstanding the clarity of the Court's ruling on this issue,
the RPFJ would essentially endorse Microsoft's anticompetitive
commingling of its own middleware into Windows in a manner that
prevents OEMs from removing it from the operating system. This is
not an idle concern because Microsoft still prevents OEMs from
removing middleware, such as Internet Explorer and the Windows Media
Player, from the Windows operating systems. Nor would the
deceptively named add/remove remedy enable OEMs or consumers to
actually remove Microsoft middleware functionality or even disable
the middleware, as it simply hides icons without actually removing
the middleware code from the operating system. With the middleware
code intact, there are many ways in which Microsoft's middleware can
still be launched and take default status for all middleware
functions. Without appropriate remedies like those proposed by the
Litigating States, Microsoft will leverage its ability to bundle and
bind its middleware with every copy of the operating system to
attempt to convince developers to write to the Microsoft's
middleware APIs rather than competing middleware APIs. Allowing
Microsoft to commingle its middleware and refusing to allow OEMs to
remove Microsoft middleware flies directly in the face of the Court
of Appeals decision. 2. The RPFJ enshrines, rather than prohibits,
Microsoft's ability to require OEMs to provide access to Microsoft
Middleware while restricting the end-user access that OEMs can
provide for Non-Microsoft Middleware The findings of fact in this
litigation establish beyond dispute that Microsoft has required OEMs
to include certain icons, Start Menu entries and other forms of end-
user access for Microsoft middleware products while it has at the
same time restricted the ability of OEMs to promote competing
middleware products during the Windows operating system boot
sequence.\51\ Specifically, the trial court found that, in the
spring of 1996, Microsoft imposed a series of new operating system
licensing restrictions on OEMs explicitly intended to restrict the
ability of OEMs to reconfigure the Windows operating system desktop
and boot sequence in a manner that would improve usage of non-
Microsoft middleware. These restrictions included the following:
---------------------------------------------------------------------------
\51\84 F. Supp. 2d at 203.
---------------------------------------------------------------------------
First, Microsoft formalized the prohibition against removing any
icons, folders, or ``Start'' menu entries that Microsoft
itself had placed on the Windows desktop. Second, Microsoft
prohibited OEMs from modifying the initial Windows boot sequence.
Third, Microsoft prohibited OEMs from installing programs, including
alternatives to the Windows desktop user interface, which would
launch automatically upon completion of the initial Windows boot
sequence. Fourth, Microsoft prohibited OEMs from adding icons or
folders to the Windows desktop that were not similar in size and
shape to icons supplied by Microsoft.\52\
---------------------------------------------------------------------------
\52\52 Id. at 213.
---------------------------------------------------------------------------
Indeed, Microsoft went so far as to threaten to terminate
Compaq's operating system license based on its removal of such icons
for Microsoft's Internet-related middleware products.\53\
---------------------------------------------------------------------------
\53\Id. at 204-;08.
---------------------------------------------------------------------------
The Court of Appeals broadly condemned such actions, which
reduce usage of competing middleware products, not by improving
[Microsoft's] own product but, rather, by preventing OEMs from
taking actions that could increase rivals' share of usage.\54\
---------------------------------------------------------------------------
\54\253 F.3d at 60-;64.
---------------------------------------------------------------------------
Notwithstanding these clear legal findings and conclusions,
Section III.C of the RPFJ allows Microsoft to continue to retain
considerable control over how and whether OEMs can make competing
middleware accessible to consumers of its personal computers through
display of icons, menu entries and shortcuts. Section III.C.1 allows
Microsoft to set rules restricting the manner in which OEMs display
icons, menu entries and shortcuts for non-Microsoft middleware. The
discretion afforded to Microsoft provides it with yet another method
of limiting the prominence that OEMs can assign to competing
middleware on personal computers running Windows operating systems.
Section III.C.1 allows Microsoft to dictate which Non-Microsoft
middleware can be accessible in which places in the Windows
operating systems, without justifying its functionality-based
distinctions. There is no valid, pro-competitive reason to take this
control away from OEMs. As the trial court found, [s]ince OEMs share
Microsoft's interest in ensuring that consumers can easily find the
features they want on their Windows PC systems, Microsoft would not
have prohibited OEMs from removing icons, folders, or Start' menu
entries if its only concern had been consumer satisfaction.\55\ Nor
does the RPFJ protect the ability of OEMs to choose which middleware
products to establish as the default on its personal computers. In
light of the trial court's finding that Microsoft reduced the
Windows royalty price for certain OEMs, including Gateway, that set
Internet Explorer
[[Page 28563]]
as the default browser on their personal computers,\56\ such
protection is required. The proposed decree, however, safeguards the
ability of OEMs to designate competing middleware as the default
only in those situations where the Windows operating system would
otherwise launch Microsoft's application in a Top-level Window that
displays all of the user interface elements.\57\ For instance, this
significant loophole would allow Microsoft to continue to prevent
OEMs from launching competing middleware in a variety of instances
in which the middleware is invoked as an embedded component in
another application, like Internet Explorer. Similarly, by allowing
Microsoft to prevent OEMs from launching any non-Microsoft
middleware product that does not display a user interface or that
displays a user interface that is similar to or smaller than the
user interface of Microsoft's middleware product, Section C.3 of the
proposed settlement would hand Microsoft the ability to exercise
significant control over the design of middleware products and other
software applications. This loophole is particularly unjustifiable
given the trial court's finding that Microsoft had previously
prohibited OEMs from adding icons or folders to the Windows desktop
that were not similar in size and shape to icons supplied by
Microsoft.\58\
---------------------------------------------------------------------------
\55\84 F. Supp. 2d at N 222.
\56\Id. at 231.
\57\See RPFJ at Section III.H.2.
\58\84 F. Supp. 2d at 213.
---------------------------------------------------------------------------
A proposed remedy that endorses, rather than condemns,
anticompetitive conduct is not in the public interest. More
generally, there is no procompetitive justification for allowing
Microsoft, which maintained its operating system monopoly in
violation of U.S. antitrust law, to have a substantial impact on the
design decisions of competitors that have been disadvantaged by
Microsoft's anticompetitive practices. Because these conditions
would restrict the ability of OEMs to increase the usage of
middleware products that compete with Microsoft, it is apparent
that, were they imposed by Microsoft independently, they would be
found to violate the Sherman Act under the reasoning of the Court of
Appeals decision.\59\
---------------------------------------------------------------------------
\59\See 253 F.3d. at 61-;62.
---------------------------------------------------------------------------
3. The RPFJ does not prohibit Microsoft from continuing to
threaten and retaliate against OEMs that have resisted doing
Microsoft's bidding The trial court's findings of fact amply
document Microsoft's repeated and brazen efforts to threaten and
retaliate against OEMs when they have resisted doing Microsoft's
bidding.\60\
---------------------------------------------------------------------------
\60\84 F. Supp. 2d at 230 (Microsoft used incentives and
threats in an effort to secure the cooperation of individual OEMs in
its efforts to ensure that personal computer users would have ready
access to Internet Explorer). See also id. at 235-;38
(describing pressure exerted on Gateway and IBM).
---------------------------------------------------------------------------
For example, the trial court concluded that, as part of its
efforts to ostracize Navigator from the vital OEM distribution
channel, Microsoft threatened to terminate the Windows license of
any OEM that removed Microsoft's chosen icons and program entries
from the Windows desktop or the Start' menu. It threatened similar
punishment for OEMs who added programs that promoted third-party
software to the Windows boot' sequence.\61\ Such retaliatory efforts
extended so far as threatening to terminate Compaq's license for
Windows 95, demonstrating that Microsoft was prepared to go to the
brink of losing all Windows sales through its highest-volume OEM
partner in pursuit of its anticompetitive ends.\62\ Microsoft's
operating system monopoly enabled it to take such actions with
impunity, indifferent to the fact that such threats soured
Microsoft's relations with OEMs and stymied innovation that might
have made Windows PC systems more satisfying to users.\63\
---------------------------------------------------------------------------
\61\Id. at 203.
\62\Id. at 206, 208.
\63\Id. at 203.
---------------------------------------------------------------------------
In light of this sustained practice of intimidation, the DOJ
correctly points out that it is critical that the OEMs, through whom
the large majority of copies of Microsoft's Windows Operating System
Products reach consumers, are free to choose to distribute and
promote middleware without interference from Microsoft.\64\
---------------------------------------------------------------------------
\64\64 CIS at 11.
---------------------------------------------------------------------------
The RPFJ, however, fails to place any restriction on Microsoft's
ability to inflict financial retaliation on OEMs. Indeed, Section
III.A. of the proposed decree explicitly limits application of its
anti-retaliation provisions to newly introduced forms of non-
monetary Consideration. Neither Microsoft nor the DOJ offers any
justification for failing to restrict Microsoft from employing
financial penalties to threaten or retaliate against recalcitrant
OEMs.\65\
---------------------------------------------------------------------------
\65\Indeed, the Competitive Impact Statement is notably
bereft of any attempt to justify Section III.A's failure to prohibit
financially based threats and retaliation. See id. at 11-;12.
---------------------------------------------------------------------------
Moreover, in the face of the extensive record in this litigation
of Microsoft's past course of threats and retaliation, Section III.A
does not even prohibit Microsoft from withholding existing forms of
non-monetary consideration from OEMs that seek to develop,
distribute or use non-Microsoft middleware, distribute competing
operating systems, or otherwise seek to exercise their purported
rights under the RPFJ. Instead, Section III.A applies only to newly
introduced forms of non- monetary consideration. Such gaping
loopholes simply cannot be reconciled with the DOJ's assertion that
Section III.A ensures that OEMs have the contractual and economic
freedom to make decisions about distributing and supporting non-
Microsoft software products that have the potential to weaken
Microsoft's personal computer operating system monopoly without fear
of coercion or retaliation by Microsoft.\66\
---------------------------------------------------------------------------
\66\Id. at 11.
---------------------------------------------------------------------------
4. Similarly, the RPFJ does not prohibit Microsoft from
continuing to employ discounts and other financial inducements to
accomplish its anticompetitive ends The undisputed factual record in
this case similarly documents Microsoft's extensive use of discounts
and other financial inducements as a critical component of its
anticompetitive conduct. For example, it is no longer disputed that
Microsoft offered IBM substantial benefits, including soft dollars
and marketing assistance, in return for shipping its systems without
any software that competed with Microsoft.\67\
---------------------------------------------------------------------------
\67\84 F. Supp. 2d at 237.
---------------------------------------------------------------------------
The trial court also found that Microsoft grant[ed] Hewlett-
Packard and other OEMs discounts off the royalty price of Windows as
compensation for the work required to bring their respective
alternative user interfaces into compliance with Microsoft's
requirements restricting their ability to reconfigure the desktop
and boot sequence in Windows 95 and Windows 98.\68\
---------------------------------------------------------------------------
\68\Id. at 215. See also id. at 213-;14.
---------------------------------------------------------------------------
Similarly, Microsoft used incentives and threats in an effort to
secure the cooperation of individual OEMs to promote the Internet
Explorer to the exclusion of Navigator.\69\
---------------------------------------------------------------------------
\69\Id. at 230.
---------------------------------------------------------------------------
Indeed, the court found that Microsoft agreed to give OEMs
millions of dollars in co-marketing funds, as well as costly in-kind
assistance, in exchange for their carrying out other promotional
activities for Internet Explorer.\70\
---------------------------------------------------------------------------
\70\Id. at 231.
---------------------------------------------------------------------------
Consistent with this, Microsoft reduced the Windows royalty
price for certain OEMs, including Gateway, that set Internet
Explorer as the default browser on their personal computers and that
displayed Internet Explorer's logo and links to Microsoft's Internet
Explorer update page on their own home pages, and offered to
compensate Gateway if it would replace Navigator with Internet
Explorer.\71\
---------------------------------------------------------------------------
\71\Id. at 231, 236.
---------------------------------------------------------------------------
The RPFJ, however, would not prevent Microsoft from continuing
to use discounts, market development allowances and other such
programs as part of its efforts to coerce OEMs into favoring
Microsoft's middleware over competing software. Given the loopholes
that pervade the proposed decree, Section III.B.3 simply requires
that Microsoft identify the criteria on which discounts are based
and make them available to all OEMs covered by the decree. While
this may somewhat limit Microsoft's ability to discriminate among
OEMs, it does not prevent Microsoft from using such inducements to
coerce OEMs into discriminating against competing middleware
products.
For example, the RPFJ would not prevent Microsoft granting
discounts or other financial benefits to all OEMs that ship
Microsoft middleware products as the default on their personal
computers. This would place any OEM that wanted to establish
middleware as the default at a potentially serious disadvantage
compared to any competing OEMs that take the Microsoft payoff.
Moreover, because Microsoft controls pricing of its monopoly
operating system, it could establish the price of versions of
Windows without its middleware set as the default at some
artificially high price and use the difference between the
artificially high price and the actual price Microsoft wanted to
receive as a cash incentive to pay OEMs to carry Microsoft's
middleware as the
[[Page 28564]]
default application. This does not correct the present judicially
condemned situation.
D.The RPFJ Contains Insufficient Provisions To Ensure Adequate
And Timely Information Disclosure
Microsoft has a history of refusing to disclose APIs, delaying
disclosure of APIs, and selectively disclosing APIs to favored ISVs
at the expense of disfavored ISVs.\72\
---------------------------------------------------------------------------
\72\Id. at 90-;92.
---------------------------------------------------------------------------
For example, Microsoft has refused to disclose APIs relating to
Secure Audio Path (SAP)\73\ and has actively used its
exclusive access to this technology to market against its
competitors beginning at least as far back as October 2000. The RPFJ
does not end this type of head start and exclusive access. Microsoft
uses its control over Windows interfaces to thwart competition from
better, more compelling middleware applications. For instance,
Microsoft has refused to disclose critical interface and other
technical information used by it in Windows XP relating to a number
of functions, including direct access to SAP and to the Play all and
Burn CD features in the My Music folder. Access to all of the APIs
and technical interfaces available in the monopoly Windows OS is
critical to ISVs and should be in Microsoft's best interest given
its stated top goal of providing a platform upon which all ISVs can
build. Because of Microsoft's past anticompetitive behavior, it is
important to have a clear and broad remedy provision requiring full
disclosure of any technical interfaces, appropriately defined,
between Microsoft's operating system, bundled middleware and any
other Microsoft applications. The RPFJ contains several major
exceptions and loopholes that allow Microsoft to delay and avoid
disclosing the technical information necessary to allow competing
middleware providers to fully interoperate with Microsoft's
software. Section III.D of the RPFJ only requires Microsoft to
disclose APIs relating to Microsoft Middleware a very narrowly
defined term that does not include any middleware bundled with the
operating system (unless separately distributed as an update). This
subtlety in the RPFJ allows Microsoft to easily avoid the
information disclosure requirements. As long as Microsoft bundles
its middleware with its operating system, rather than distributing
it separately, it will no doubt argue that there is no information
disclosure requirement, although that would seem contrary to the
intent of the RPFJ.
---------------------------------------------------------------------------
\73\Secure Audio Path is a technology designed to
maintain the security of a file as it moves through the operating
system for eventual playback by a sound card. It is designed to
prevent interception of secure content along the route to the sound
card. Microsoft has been exhorting content providers to use its
Windows Media middleware in part because of its exclusive access to
Secure Audio Path.
---------------------------------------------------------------------------
Limiting Section III.D to Microsoft Middleware makes it easy for
Microsoft to avoid disclosing APIs for a host of features and
functions made available to Microsoft's application developers. This
is especially true given the fact that the RPFJ allows Microsoft, in
its sole discretion, to decide what is in the operating system and
what is not. This provides virtually unlimited opportunity for
gerrymandering. There is certainly no procompetitive justification
for this restriction. The Litigating States' proposed remedy, on the
other hand, requires Microsoft to provide all APIs that are used by
Microsoft's own application developers to interoperate with either
the operating system or middleware. It does not provide a complex
web of limitations and restrictions that are bound to create further
unnecessary litigation. The provision regarding server
interoperability excludes communications between Microsoft
Middleware Products even those that are commingled and bound with
the Windows operating system--;and Microsoft servers. This is an
enormous loophole. As written, Microsoft is likely to argue that the
provision does not allow ISVs to obtain any access to Microsoft's
communications protocols between Microsoft servers and applications
such as Internet Explorer, Windows Media Player and instant
messaging. Again, this does not seem consistent with the intent of
the RPFJ.
In an amazing reversal of fortune, the RPFJ would actually
require law-abiding ISVs to license their technology to Microsoft an
illegal monopoly if they want to take advantage of Microsoft's APIs.
The fact that an ISV might license and use technology from
Microsoft, as allowed under the proposed settlement, should not
entitle Microsoft to get a license to the ISV's technology relating
to the exercise of their options or alternatives. By ensuring that
Microsoft will obtain contractual rights to technologies that it
deems to be strategic, the RPFJ provides assistance to Microsoft's
continuing anticompetitive efforts to restrict the development and
distribution of competing middleware by bundling its own versions of
those technologies with its operating system in an attempt to
dominate the market to the detriment of its more innovative
competitors. Because Microsoft is not doing any development on
behalf of the ISVs as part of the RPFJ, it does not need licenses to
ISV technology to perform its obligations. This provision in effect
operates as a poison pill that presents substantial disincentives
for competing middleware developers to qualify for the protection of
the very provisions of the RPFJ that are designed to foster
competition in these nascent markets.
Microsoft Can Continue Its Anticompetitive Practices For Up To
One Year And Intends To Do So.
The RPFJ's time periods for Microsoft's compliance with a
variety of provisions, including those related to information
disclosure, place competing application developers at a serious
disadvantage. Middleware ISVs should have as much time as
Microsoft's own application developers to use the APIs and other
technical information necessary to access, utilize and support the
full features and functionality offered by the Windows operating
systems. Indeed, the extended time provided to Microsoft to comply
with the RPJF is in direct contradiction of one of the DOJ's stated
reasons for entering into the settlement: prompt relief. For
example, Microsoft has a full year to comply with the bulk of the
information disclosure provisions and other provisions related to
middleware in Sections III.D and H. Microsoft essentially has been
blessed to continue wield its monopoly power for long periods of
time to the detriment of consumers and competition. Instead, relief
should be immediately available. If Microsoft does not have the
technology ready, it should nevertheless be required to allow others
to implement the provisions on their own while Microsoft delays
disclosing the APIs. There is no competitive justification for
giving Microsoft nine or twelve months to disclose and license
interfaces that are readily available to, and now in use by,
Microsoft's own application developers. In fact, Microsoft is
already relying on the 12 month delay provision to avoid disclosing
APIs to SAP. Despite repeated requests, Microsoft has not provided
RealNetworks with any information or even confirmation that it would
provide access to SAP. In a January 2002 communication to
RealNetworks, Microsoft simply pointed to the twelve-month time
frame and claimed it was in compliance.
F. The RPFJ Does Not Materially Affect Microsoft's Ability To
Engage In Anticompetitive Exclusive Dealing
The RPFJ does not effectively prohibit Microsoft from using
deals with an IAP, ICP, ISV, an independent hardware vendor
(``IHV''), or OEM to limit competition. Microsoft has long
relied on such deals in an attempt to limit the development of
competing middleware solutions. For example, Microsoft has entered
into agreements specifically limiting or forbidding use of
middleware that threatens its operating system monopoly. Microsoft
has entered into agreements requiring independent content providers
to use technology designed to detect whether the end user has
Microsoft middleware installed on his or her computer and then using
that technology to the exclusion of competing middleware, even when
the consumer had chosen the competing middleware as their default.
Such conduct flies in the face of Microsoft's own statements that it
is trying to create a platform for ISVs; Microsoft's actions are
damaging to any ISV who build competing middleware on Microsoft's
platform. Section III.G allows Microsoft to demand parity with any
third party product that Microsoft considers to be a competitor to
its Platform Software in any deal with an IAP, ICP, ISV, IHV, or OEM
that distributes, promotes, uses, or supports the third party
product. This provision seems designed to prevent competitors from
getting ahead of Microsoft.
In addition, Microsoft is sure to continue to use its
investments as a vehicle to demand exclusivity or preference for its
products to the detriment of competing middleware. Microsoft can
enter into any agreement with an ISV, IHV, IAP, ICP, or OEM provided
that each contributes either significant developer or other
resources prohibiting the entity from competing with the object of
the agreement for a reasonable (undefined) period of time. This
would bless and legitimize Microsoft's current anti- competitive
behavior through which Microsoft leverages other assets to maintain
its illegal monopoly. Moreover, Microsoft can apparently avoid even
these
[[Page 28565]]
requirements simply by licensing intellectual property as part of
the deal (see Section III.G.2). Section G appears to allow Microsoft
to license third party intellectual property under whatever scenario
it desires. This presents a gaping loophole to the entire section,
as does the exception for any joint development or joint services'
arrangement. Virtually any technology deal could be styled as such.
The prohibitions of Section III.G.2 are strangely applicable
only to contracts with IAPs and ICPs (not IHVs, ISV or OEMs) to
obtain placement in Windows. In fact, it should simply prohibit
Microsoft from entering any contract conditioned on any third
party's agreement to refrain from or limit distribution, promotion
or use of competing middleware. As written, the provision would
allow Microsoft to require any ISV or IHV to refrain from
distributing or promoting competing middleware as a condition for
placement in Windows, or for placement on MSN, or for access to
Dot.Net or for anything else. Surely, this could not have been the
intent of the DOJ, yet it is the result of the language in the RPFJ.
G. The Enforcement Provisions Are Weak And Ineffective
The Court of Appeals conclusively established that Microsoft is
an illegal monopolist. Yet, remarkably, Microsoft has not modified
its anticompetitive behavior in any meaningful way despite the
Court's clear conclusions, just as previously the consent decree
entered by the DOJ failed to end Microsoft's anticompetitive
conduct. The necessary enforcement mechanisms must reflect the harsh
reality that Microsoft has repeatedly shown its complete disrespect
for the judicial process and directives of the courts.
Unfortunately, the enforcement mechanisms in the RPFJ are completely
ineffectual and are destined to fail. Any conduct-based remedies in
this complex environment will be effective only to the extent they
are capable of prompt, rigorous enforcement.
For instance, the proposed settlement fails to put in place a
meaningful mechanism for preventing, identifying and resolving
violations of the proposed agreement in an expedited manner. The
voluntary dispute resolution mechanism is designed for delay rather
than deterrence. It is essential that any decree establish clearly
defined procedures, with prompt, prescribed time deadlines, to
enable the government and the court to address violations of the
decree in a full and expeditious manner. By contrast, the
``voluntary dispute resolution'' provisions of the
proposed settlement are as inadequate as the name suggests. The only
``penalty'' for willful and systemic violations of the
proposed settlement is a one-time, two-year extension on the already
truncated five-year term, much of which does not even become
effective for an entire year. The time frames for investigating
complaints are loose or non-existent, with no clear or prompt
recourse to the court for resolution. Moreover, the ``Technical
Committee'' is housed at Microsoft, cannot independently go to
the court for redress and cannot present any of its findings or
information to the court, which ensures that the substantial time,
effort, and expense devoted to the Committee's processes would need
to be duplicated in future compliance efforts. Inexplicably,
Microsoft is allowed to appoint a member of the Technical Committee,
a sort of permanent seat on the security council to oversee its
overseers. Rather, the proposed decree needs to establish a Special
Master, that can make prompt recommendations directly to the Court.
This litigation has been going on for over three years. Microsoft
has reaped the rewards of its illegal conduct during that time, and
continues to do so. The RPFJ would provide Microsoft with an
additional 12 months to comply with several provisions that should
require immediate compliance. The proposed time frames greatly
overstate the difficulty of providing ISVs with technical
information that Microsoft has been using itself to develop
Middleware and other applications. Any purported hardship imposed by
more appropriate deadlines would certainly by justified by
Microsoft's history of illegal conduct. Consumers deserve swift and
certain relief.
V.CONCLUSION
As set forth above, entry of the ambiguous and loophole-laden
RPFJ would engender significant uncertainty as to its terms and
actual effect and would, in many respects, potentially assist
Microsoft in its anticompetitive efforts to restrict the development
and distribution of competing, innovative middleware. The full
anticompetitive harm that would result from a failure to effectively
redress the anticompetitive conduct identified by the Court of
Appeals cannot, however, be fully understood simply by examining
Microsoft's anticompetitive conduct to date, as substantial as that
is. As the trial court found in this litigation, the full effects of
Microsoft's anticompetitive conduct extend well beyond today's
consumers of personal computers to chill tomorrow's innovations and
the new products and markets that such innovations will make
possible:
Most harmful of all is the message that Microsoft's actions have
conveyed to every enterprise with the potential to innovate in the
computer industry. . . Microsoft has demonstrated that it will use
its prodigious market power and immense profits to harm any firm
that insists on pursuing initiatives that could intensify
competition against one of Microsoft's core products. Microsoft's
past success in hurting such companies and stifling innovation
deters investment in technologies and businesses that exhibit the
potential to threaten Microsoft. The ultimate result is that some
innovations that would truly benefit consumers never occur for the
sole reason that they do not coincide with Microsoft's self-
interest.\74\
---------------------------------------------------------------------------
\74\84 F. Supp. 2d at V 412.
---------------------------------------------------------------------------
By contrast, the Court has before it an eminently superior
remedy proposed by the Litigating States. Bereft of the ambiguity
and loopholes that benefit the monopolist they are ostensibly
intended to restrain, the States' proposed remedy highlights the
extent to which the RPFJ fails to effectively end Microsoft's
anticompetitive conduct. Forward- looking in scope and
straightforward in application, the States' proposed remedy is
appropriately tailored to redress the anticompetitive conduct
identified by the Court of Appeals, while preserving Microsoft's
ability to compete with other operating systems and other middleware
products on the merits.
For the reasons set forth herein, RealNetworks respectfully
submits that entry of the RPFJ would not be in the public interest.
MTC-00029306
From: Jessica Hollings
To: Microsoft ATR
Date: 1/28/02 10:44pm
Subject: Microsoft settlement
The proposed settlement is not in my interest.
Signed,
Jessica Hollings
Athens, Ohio
MTC-00029307
From: CHARLES A. CRAWFORD
To: Microsoft ATR
Date: 1/28/02 10:44pm
Subject: microsoft settlement
I ask that the current settlement be followed , and that the
dissenters be silenced by the court.
Charles A. Crawford
[email protected]
MTC-00029308
From: Maggie Hayes
To: Microsoft ATR
Date: 1/28/02 10:49pm
Subject: Microsoft Settlement
Maggie Hayes
13759 Morningbluff Lane
San Antonio, TX 78216
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Thank you for the exceptional service you have provided our
country. In the interest of furthering the cause of private
enterprise, the foundation upon which our country has been built, I
am compelled to speak out on the Microsoft settlement. As both a
customer and a stockholder, I hold strong opinions on the outcome of
this case.
Microsoft has long been a leader in the technology industry.
They have earned their place of leadership in the technology
industry through their focus on excellence. Due to this commitment
Microsoft has consistently outperformed the competition by providing
consumers with user-friendly products. As a believer in free
enterprise I was outraged by the case against Microsoft. Nonetheless
the resolution of this case is the most important matter at this
time.
Enacting the settlement will allow Microsoft to get back to
business. In addition the stipulations of the settlement will
benefit users as well. With the release of Windows XP, Microsoft
will be putting in a new mechanism that will allow users to add and
delete programs into the system with greater ease. The settlement
goes above and beyond the original scope of the case. The Justice
[[Page 28566]]
Department must enact the settlement at the end of
January.
Sincerely,
Maggie Hayes
MTC-00029309
From: J. Daniel Moss
To: Microsoft ATR
Date: 1/28/02 10:46pm
Subject: Microsoft Agreement
To Whom It May Concern,
As a citizen, taxpayer, and shareholder concerned with the
element of fairness, I want you to know that I support the
settlement agreement worked out between the U.S. Department of
Justice and Microsoft. I want to add my name to the support enlisted
for the agreement.
Joseph Daniel Moss
500 Fisher Avenue
Catawissa, PA 17820
1-;570-;356-;2138
MTC-00029310
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:46pm
Subject: Microft Settlement
In a message dated 1/28/02 6:45:37 PM Central Standard Time,
[email protected] writes: <<
[email protected] >>
Below is the letter we have drafted for you based on your
comments. Please review it and make changes to anything that does
not represent what you think. If you received this letter by fax,
you can photocopy it onto your business letterhead; if the letter
was emailed, just print it out on your letterhead. Then sign and fax
it to the Attorney General. We believe that it is essential to let
our Attorney General know how important this issue is to their
constituents. The public comment period for this issue ends on
January 28th. Please send in your letter as soon as is convenient.
When you send out the letter, please do one of the following:
Fax a signed copy of your letter to us at
1-;800-;641-;2255;
Email us at [email protected] to
confirm that you took action.
If you have any questions, please give us a call at
1-;800-;965-;4376. Thank you for your help in this
matter.
The Attorney General's fax and email are noted below. Fax:
1-;202-;307-;1454 or 1-;202-;616-;9937
Email: [email protected]
In the Subject line of the e-mail, type Microsoft Settlement.
For more information, please visit these websites:
www.microsoft.com/freedomtoinnovate/ www.usdoj.gov/atr/cases/ms-
settle.htm
8850 McClellan Boulevard
Anniston, AL 36206-;7548
January 13, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Attorney General Ashcroft:
I appreciate the Justice Department finally coming to a
settlement over the Microsoft issue. The three year long dispute has
brought up many issues regarding antitrust laws and the tech
industry. The settlement that was reached represents a good
compromise. I believe that it should be acceptable to everyone
involved.
Now that the Windows'' operating system will be made
available to producers at a uniform price, computer makers will not
have to gain favor with Microsoft in order to receive discounted
prices. This evens the playing field among computer makers. Further
the review committee that is to be created will guarantee that
everyone plays fair too.
The settlement comes at a good time. It represents both sides of
the issue. The government needs to move on to more important
matters. Thanks for listening.
Sincerely yours,
Harold Hall
MTC-00029311
From: daRcmaTTeR
To: Microsoft ATR
Date: 1/28/02 11:00pm
Subject: Microsoft Settlement
To whom it may concern,
Please do this country a big favor and split them up, take them
apart...do what ever you have to do to make them play by the same
rules everyone else has to if you can't put them out of business.
We're all so tired of watching and being able to do nothing while MS
gets rich over the dead bodies of smaller companies that are just
trying to make a living at what they do. MS stinks, their products
stink and the way in which they treat the end users by marketing and
selling inferior products stinks! Please give this country and the
world the Technological enema that it so desperately deserves and
needs and stick it to Microsoft. Though it won't even begin to make
up for the way they have stuck it to countless others at least it's
better then letting them get away with it unpunished.
Mark Weaver
Written from A Microsoft FREE environment
MTC-00029312
From: Allan G. Osborne
To: Microsoft ATR
Date: 1/28/02 10:47pm
Subject: Microsoft Settlement
5829 NE 198th Place
Kenmore, WA 98028
January 28, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I encourage you to support the recent antitrust settlement
Microsoft has reached with the DOJ. I can only imagine how much this
lawsuit has cost the little people in this country--;not Bill
Gates, but the people throughout the country, especially those who
are in pension funds.
Furthermore, I feel this attack on success is forcing Microsoft
to agree to terms that go far beyond the original scope of the
lawsuit so it can continue to develop software undisturbed by the
government.
As an example, Microsoft has agreed to provide the code so
competitors can alter Windows to remove Microsoft products and to
install competing products. Furthermore, Microsoft has agreed to
disclose various interfaces to its competitors--;a first in an
anti-trust settlement.
Further, Microsoft has agreed to not force third parties to
distribute or promote Windows exclusively or as a fixed percentage;
nor will Microsoft prevent computer makers or software developers
from developing competing operating systems or software that runs on
competing operating system.
For these reasons, I encourage you to support this settlement as
good for the consumer, and so that Microsoft can return to the
business of developing good software.
Sincerely,
Allan Osborne
MTC-00029313
From: Dolores Dembus
To: Microsoft Settlement
Date: 1/28/02 10:41pm
Subject: Microsoft Settlement
Dolores Dembus
3133 Connecticut Ave NW
Washington, DC 20008
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Dolores Dembus
MTC-00029314
From: Thomas Leszczynski
To: Microsoft Settlement
Date: 1/28/02 10:41pm
Subject: Microsoft Settlement
Thomas Leszczynski
4539 Greystone Dr
Richfield, WI 53076-;9405
January 28, 2002
Microsoft Settlement
[[Page 28567]]
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Thomas Leszczynski
MTC-00029315
From: Loyd D. Jacobs
To: Microsoft ATR
Date: 1/28/02 10:48pm
Subject: Micrsoft Antitrust Settlement
I believe the subject settlement is more than fair. Microsoft
was largely responsible for the tremendous economic gains of the
1990's. Yet the goose that laid the golden egg is severly attacked.
By whom? By a gang of competitors who could not compete in a free
market. By a gang of competitors who met together to costruct a case
against Microsoft and ask the federal goverment to prosecute it.
Collusion?
Yes Microsoft is agressive. In business you do not go far
without being agressive. Agressive action and words can stir up
emotional responses, but that does not make them illegal?
The general public has not been harmed by Microsoft. To the
contrary. Microsoft has made it easy for the novice to use computer
systems. They have provided a much needed standard. Compare that to
the incompatable wireless telephone systems. My wireless telephone
will not work in Europe. Old time computer users complain about
Microsoft. They know how to work around computer problems and do for
themself. The general public does not. Microsoft provides a
standard, a tool the general public can easily use.
Bunding. I want blundling. I do not want to buy my operating
software system a piece at a time. Only special applications do I
want to buy one piece at a time. I also do not want to make the
piece by piece selection of what goes in my basic operating system.
I am not smart enough. Microsoft lets me easily buy a complete
system that works great.
Cost. Per line of code, there is no maintaied software package
that is cheaper.
Do we really want to put overzealious tethers on the company
that had a large part in creating the golden egg economic era of the
1990's. I would think twice about that.
Thanks for the opportunity to comment.
Loyd D. Jacobs
P.S. I am a Boeing retiree.
MTC-00029316
From: RAJESH SATPUTE
To: Microsoft ATR
Date: 1/28/02 10:49pm
Subject: Microsoft Settlement
Dear Sir/Madam,
This settlement is in favour of the public. This settlement is
good for the industry, economy and above all the nation. As a US
Citizen I do agree this steelement.
Regards,
Raj Satpute
MTC-00029317
From: Hugh Inness-Brown
To: Microsoft Settlement
Date: 1/28/02 10:45pm
Subject: Microsoft Settlement
Hugh Inness-Brown
5351 State Hwy 37
Ogdensburg, NY 13669
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Hugh Inness-Brown
MTC-00029318
From: Swapan Gupta
To: Microsoft ATR
Date: 1/28/02 10:52pm
Subject: Microsoft Settlement
We the undersigned would like to submit our comments on the
Microsoft Settlement before the Antitrust Division. We are
displeased to note that much effort has been expended by the
government to listen to envious competitors, who unable to compete
in the open market, attack a productive company so that its
innovative ways can be hindered. We have been using Microsoft
products for over a decade and have never had any complaints about
their performance. Over the years their products have kept
improving. We are therefore opposed to any settlement, in which the
company which has become successful by dint of innovation, is
penalized for being too successful. We would also like to state for
the record that as free individuals, participating in the
marketplace, we have chosen Microsoft products without coercion.
Therefore we think that it is not the duty of the Government do
decide or restrict the marketing of Microsoft's products at what
ever price the market will bear. Also we think that as free
individuals we have an inalienable right to purchase and keep on our
computers software of our choice without government interference. In
other words, the government should not violate our personal
liberties in the realm of what we can buy and keep in our computer.
Since the business of Microsoft is producing software, we fail to
see how it is a threat to anyone. A free market, in essence requires
that a company be productive and offer a better product at the
lowest price. Microsoft has been able to do this--;- a testament
to it's success.
One important point to note here is that Microsoft has been
brought to court by its competitors, who when unsuccessful in the
open market, sought to use government force to not only shackle but
also to set the terms by which businesses in future must compete in
the market place. Failed businesses must not be allowed to set the
terms of the operation of the market place. Penalizing successful
businesses can only have a chilling effect on future iconoclastic
businessmen and industrialists from trying to be innovative if they
conclude that the price of success is the breakup of a company and
suffering long drawn out court battles and fines and unreasonable
penalties. The government should foster an environment whereby any
American entrepreneur with a new idea can start a business by
upsetting (if required, just as Henry Ford upset the horse and buggy
industry, or what Edison's invention of the light bulb did to the
candle makers) current businesses and starting a new field of
production just as the computer industry replaced and automated many
labor intensive functions of U. S. industry. After all a business
has a right to its own property and it is the constitutional duty of
the government is to secure and protect those rights.
CC:[email protected]@
inetgw
MTC-00029319
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:51pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft:
The free enterprise system in the United States has been the
catalyst for making the
[[Page 28568]]
United States the greatest country in the world. Within the system,
there will be winners and losers. Microsoft is perhaps the biggest
winner of all time; they have created and marketed a product that
satisfies the needs of an expanding market all over the globe.
The government has no business meddling into the affairs of
Microsoft, or any other business. Microsoft used its own ingenuity
and market know-how to achieve the level of success it has. The
entire lawsuit between Microsoft and the US government has become a
forum for Microsoft's competitors to tear a piece of Microsoft's
success away.
Microsoft has agreed to permanent government oversight in the
form of the three-person ``Technical Committee.'' This in
and of itself should silence most any critic of Microsoft, but the
settlement also agrees to make trade secrets such as operating
system protocols and interfaces available to its competition as
well.
I have strong reservations about this settlement, but if this is
what Microsoft wants, than I will support the company. Microsoft
performed as any company would in the open market, and has been duly
rewarded. The federal government needs to end the litigation and let
free enterprise and the market determine the final outcome for
Microsoft and its competitors.
Sincerely,
Richard Kissell
3903 23rd Ave. W.
Bradenton, FL 34205
MTC-00029320
From: Howard Hall
To: Microsoft Settlement
Date: 1/28/02 10:49pm
Subject: Microsoft Settlement
Howard Hall
9 Josefa Place
Moraga, CA 94556
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Howard G. Hall
MTC-00029321
From: barbara ward
To: Microsoft Settlement
Date: 1/28/02 10:49pm
Subject: Microsoft Settlement
barbara ward
box 404
carrizozo, NM 88301
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
barbara ward
MTC-00029322
From: NANCY LONG
To: Microsoft Settlement
Date: 1/28/02 10:52pm
Subject: Microsoft Settlement
NANCY LONG
3601 CHADSWORTH WAY
SACRAMNETO, CA 95821
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
NANCY LONG
MTC-00029323
From: Jerome Isham
To: Microsoft ATR
Date: 1/28/02 10:57pm
Subject: USAGIsham--;Jerome--;1002--;0125
10047 Main Street Apt #213
Bellevue, WA 98004
January 26, 2002
Attorney General John Ashcroft, DOJ
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
Today I take the time to encourage the Department of Justice to
accept the Microsoft antitrust settlement. The DOJ and Microsoft
have slugged this battle out for over three years. It is time to put
an end to it. A settlement is available and the terms are fair. It
is rally about time that the government accepted it. In order to put
this issue behind them, Microsoft has agreed to many terms. They
have consented to design future versions of Windows to be more
compatible with non-Microsoft software, making it so that features
like Explorer and Windows Messaging can be replaced by Netscape and
IM. They have also agreed to change several aspects in the way they
do business with computer makers. Microsoft has given up a lot in
order to settle the issue. It is time for the government--;and
the courts--;to accept the settlement and move on. Microsoft and
the technology industry need to move forward, and the only way to
move forward is to put this issue in the past. Please accept the
Microsoft antitrust settlement.
Sincerely,
Jerome Isham
MTC-00029324
From: Dale Boe
To: Microsoft ATR
Date: 1/28/02 10:59pm
Subject: 280 Yew Street Road
280 Yew Street Road
Belingham, WA 98226
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
[[Page 28569]]
Washington, DC 20530
Dear Mr. Ashcroft,
I wanted to take this moment to write you, during the 60-day
public comment period, to express my concern on this tedious lawsuit
plaguing the Microsoft corporation. For the past three years (in its
most recent version, anyway) Microsoft has concentrated its time,
energy and money under public and federal scrutiny and it has been
the unfair and unjustified bullying of an enterprise that built
itself on American ideals, the dreams that all Americans are made
of. The current proposed settlement, although harsh on Microsoft,
needs to be the ending of this lawsuit once and for all. If the case
goes back to the federal court, not only does the fundamental
principle of freedom of enterprise fly out this nation's window, but
our nation's economy will suffer further from the loss of potential
capital. How can our country criminalize a business that brought
this world out of the technological ``stone age?'' It is
beyond me how people that have prospered from Microsoft's success
are also the ones trying to put them out of business. Is this the
message we are instilling in our own people that too much success is
a crime and can legally be taken away from you?
By accepting the proposed settlement, Microsoft and the American
consumer can put this behind them, get back to business as usual,
and keep Microsoft as an investment this country needs to stay at
the top of the global market.
Your time and consideration in this matter is greatly
appreciated and I hope your actions will speak for the American
people and not the jealous competitors trying to take ingenuity away
from the Microsoft corporation.
Sincerely,
Dale Boe
MTC-00029326
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 10:59pm
Subject: Microsoft Settlement
Greetings.
I believe in the free enterprise society. Let the inventors
invent. I want Microsoft to give me the best of the best. I want all
the components in one pack of software.
Please let Mr. Gates advance our technology. Stop all the legal
action against Microsoft.
Regards,
Valerie Rogers
3428 Hillvale Rd
Louisville, Ky 40241
502-;423-STAR
MTC-00029327
From: Carol Wray
To: Microsoft Settlement
Date: 1/28/02 10:55pm
Subject: Microsoft Settlement
Carol Wray
10133 Ga.Hwy.42 South
Fort Valley, GA 31030-;9313
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Carol Wray
MTC-00029328
From: Dave La Bounty
To: Microsoft ATR
Date: 1/28/02 10:59pm
Subject: Microsoft Settlement
To whom it may concern:
I am very much against the proposed Microsoft Antitrust
Settlement ... it doesn't go far enough to level the playing field
against Microsoft or in punishing Microsoft. In it's present form,
it appears that the DOJ proposed settlement (once again) lets
Microsoft off the hook, and lets them continue their rampant /
unabaited, unethical, predatory / monopolistic practices ... it's
ALL in the details and crafting of the words ... by highly paid
Microsoft lawyers ... once again, there is no ``meat'' to
it. ``Nothing'' surprises me anymore ... but America and
the world deserves better. There IS an alternative ... ALL you have
to do is read the incisive, brilliantly presented descriptions of
the problems ... and solutions at the following web sites ... to
realize how woefully inadequate the DOJ settlement proposals truely
are.
http://www.kegel.com/remedy/letter.html,
http://www.kegel.com/remedy/remedy2.html
http://www.codeweavers.com/jwhite/tunney.html
The solutions proposed at these sites have some
``meat'' to them, and should just be a starting point of
``minimum necessary requirements''. These proposed
solutions, would finally, at least, force Microsoft to be more
forthright and honest. Hire these guys as consultants!!! IF there is
``any justice'', the DOJ verdict and settlement ought to
``punish'' Microsoft ``severely'', with more
than just a weak slap on the wrist ... Microsoft should not continue
to be ``rewarded'' by the Justice Dept. for their
continued ``best business practices'' ... business
practices at their worst.
I have been supporting Computer hardware / software for 40 years
from mainframes to PCs, including Microsoft products. There is
``no room'' in a democratic society ... for software code
(and a company) that wants to ``imbed'' itself
``everywhere'' ... to the ``exclusion'' of ALL
others. This fact is even intuitively obvious to the most casual
observer ... and also ought to be obvious to a ``US Justice
Dept'' as well.
There is no dispute that Microsoft has stifled innovation,
creativity and competition ... and in the process
``sucked'' the life out of an Entire industry / culture.
For years, Microsoft has ``rushed to market'' buggy /
inept, bloated software code / APIs, applications ... Operating
systems (OS) ... in order to circumvent previous, WEAK Justice Dept
settlements.
Just look at the security flaws in their ``latest &
greatest'' XP OS ... rushed to market to
``procreate'' and ``imbed'' itself ... before it
works ... and before the ``law'' can catch up with it ...
yet one more time. In Windows 9X, Internet Explorer (IE) was
blatently imbedded into the Windows OS, with requirements that IE be
the ``default'' browser in order for OTHER Microsoft)
applications (such as Outlook) to work properly ... to the exclusion
of other applications, including Netscape. Microsoft
``is'' the ultimate blood-sucking virus. It's time to get
out the RAID ... and a BIG flyswatter ... or gavel!!!
Surprise me ... do something right ... for a change,
Dave La Bounty,
San Jose, Ca,
Computer Engineer / Technologist (40 years)
MTC-00029330
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:01pm
Subject: Microsoft Settlement
Lester Ward
5604 Newman Davis Road
Greensboro, NC 27406
January 27, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I have been using computers since 1976. That is about adecade
before even the first PCs. (even before DOS). I could use computers
even without Microsoft. The question is would I want to do so.
Imagine the millions of Americans today that use computers and the
Internet without even a clue as to how difficult things once were.
I am writing this letter in hopes of restoring some sense to the
current course of affairs. I sold my Microsoft stock shortly after
Judge Jackson began to try to write himself into the history books.
The reason Microsoft is so successful is because we the consumers
want it to be. I do not want to purchase a menagerie of software
operating systems and user applications that very likely will not
work together. I know this started during the Clinton
Administration. I feel that it is time to put a halt to this auto-
immune attack
[[Page 28570]]
Microsoft is an important part of the U.S. economy. Please let
Microsoft get back to software production. In these difficult
economic times, we need to move forward. I would find it difficult
to do my job without the innovations that Microsoft has provided. I
will continue to depend on Microsoft. Microsoft has agreed to a
settlement that should provide any necessary compliance to
regulations and prevent any further perceived need for anti-trust
actions.
I hope that my opinion makes a difference. Thank you for your
attention in this matter.
cc: Representative Howard Coble
Sincerely,
Lester Ward
MTC-00029331
From: Kiyoshi Yu
To: Microsoft ATR
Date: 1/28/02 11:01pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street, NW
Suite 1200
Washington, DC 20530-;0001
Via email: [email protected]
Subject: Microsoft Settlement
Dear Ms. Hesse:
As a consumer whose activities both at work and at home rely
heavily upon the use of personal computer software, I welcome the
chance to comment on the proposed settlement between Microsoft and
the Department of Justice.
I feel that this agreement, as is, will leave Microsoft to
continue in its anticompetitive ways. It will not prevent the
monopoly from using strong-arm tactics in licensing deals with
computer makers, nor will it stop Microsoft from keeping competitive
products from coming to market. As a result, consumers like myself
will be forced to continue to pay for Microsoft's expensive
operating systems and software suite and the upgrades required to
keep them functional. In addition, our choice of software products
will continue to be limited and for those of us who do use non-
Microsoft operating systems or Internet browsers, compatibility with
other Microsoft products will continue to suffer.
The additional proposal put forth by Massachusetts Attorney
General Tom Reilly along with eight other states and the District of
Columbia is a far better remedy than one proposed by the Department
of Justice. This proposal includes key provisions that will put an
end to Microsoft's illegal business dealings, help ensure
compatibility of software products and bring consumers like myself
the benefits of greater choice and lower prices. Moreover, unlike
the Department of Justice's settlement, this proposal will provide
an enforceable solution with real penalties to guarantee compliance.
Therefore, it is my hope that the Court will find the Department
of Justice's settlement with Microsoft not to be in the public
interest and rather adopt the proposal of Tom Reilly and the other
State Attorney Generals.
Sincerely,
Kiyoshi Yu
388 Ocean Ave.
Revere Beach, MA 02151
MTC-00029333
From: Robert Boyer
To: Microsoft ATR
Date: 1/28/02 11:03pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
Us Dept of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530
Dear Mr. Ashcroft:
I have been following the Microsoft antitrust case in the papers
and media and I think it is time to come to a settlement. Microsoft
has met all , and more, of the competitors demands. We should meet
the simple request of Microsoft to have the settlement approved, so
Microsoft can go back to the business of innovating.
I appreciate your efforts to have the Microsoft approved by the
Court as in the best interest of the American public.
Thank you for your attention to this matter.
Billie Jo and Robert Boyer
2126 New Bedford Dr.
Sun City Center, Fl 33573
Phone- 813-;634-;1181
MTC-00029334
From: Kedar Soman
To: Microsoft ATR
Date: 1/28/02 10:57pm
Subject: Microsoft Settlement
Dear Madam / Sir,
This is in regard to Microsoft antitrust settlement case. I
sincerely feel if Microsoft continues to follow the current
practices, it will pose a grave challenge to the principle on which
the capitalism is based, free and healthy competition.
Simply put, if not curbed right now, following thing will
happen. Your children will wake up listening microsoft radio station
on microsoft radio. They will wear clothes made by microsoft, travel
in microsoft made car to office, where they work on windows and MS
OFfice. Later in evening, they will come back and watch Microsoft
televison. Before sleeping, they will read microsoft printed Bible.
And when they will open microsoft printed dictionery to read the
meanings of words freedom and customer choice, they will hate you
with their whole heart.
Thanking you,
Kedar Soman
MTC-00029335
From: linda rasband
To: Microsoft Settlement
Date: 1/28/02 10:57pm
Subject: Microsoft Settlement
linda rasband
670 west 91st ave.
anchorage, AK 99515
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers'? dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
linda rasband
MTC-00029336
From: Gretchen Huizinga
To: Microsoft ATR
Date: 1/28/02 10:57pm
Please see attached letter regarding the Microsoft Settlement.
Gretchen Huizinga
Millennium Arts Inc.
18404 148th Avenue NE
Woodinville, WA 98072
January 23, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I would like to take this time to voice my opinion on the
Microsoft case. The government had no right to intervene with
private business, but now that the case has been allowed to drag on
for three years, the American public needs to see that the case is
finally ended. Microsoft is a good company; they've provided
consumers with superior products and have changed our lives,
contributing so much to our nation's economy. I run a production
company and use Microsoft's products in my office. I am not forced
to do so; I use their products because I prefer to.
The proposed settlement will be more than favorable to
Microsoft's competitors and will consequently foster competition.
Microsoft has agreed to tone down its supposedly aggressive
marketing techniques and will allow their competitors to create and
promote non-Microsoft software in Windows. They are also going to
give away a lot of their technical secrets to their competitors.
This settlement is more than reasonable and is the right thing
to do. Our economy is struggling and our technology industry needs
to be restored. Ending this case is a perfect way to do that. Thank
you for your time.
Sincerely,
Gretchen Huizinga
MTC-00029337
From: Johannes Garcia
[[Page 28571]]
To: Microsoft ATR
Date: 1/28/02 11:04pm
Subject: Microsoft Settlement
Ladies & Gentlemen:
We must continue to promote the best technology and give the
opportunity to those who wants the freedom to innovate in all area
of business and industries. Lets keep the courts and the politicians
out of technology especially in this critical time ``The New
World Economic''. If AOL wants to continue to played this role
in promoting policy (and politics) over technology especially as
they have done in the last three years and contributing in the
impeding of new technology. Let us remember man is the maker of his
destiny and we are all guilty if allowed it to happen. Why should
the American people be punished to pay for the legal cost of this
platform?
As we all know AOL has promised to open up their instant
messenger as Microsoft has done, so that we all can have a platform
to build services for it, but has AOL complied? NO. They say one
thing and do another.
Microsoft has done bad things in the past but is not the evil
some people make it out to be. If you had studied them in some
depth, you'd understand that.
Microsoft has done great things for the United States Economic
and World Economic and their contribution to ordinary people is the
real story. Let's keep our head over water and we should continue to
review all the facts and put every things on the balanced (World
Economic) before we make the biggest mistake in this new World
Economic.
Johannes Garcia
MTC-00029338
From: Bertram Rogers
To: Microsoft ATR
Date: 1/28/02 10:56pm
Subject: Microsoft settlement
Dear Renata Hesse,
I would like to see the Microsoft litigation settled amicably
ASAP. Microsoft is one of only a few US companies that can compete
in the world market. I would not like to see it so cripple that it
can no longer compete.
Best wishes,
B. H. G. Rogers
MTC-00029340
From: jack eich
To: Microsoft Settlement
Date: 1/28/02 10:59pm
Subject: Microsoft Settlement
jack eich
18763 felton
morrison, IL 61270
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
jack l. eich
MTC-00029341
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:05pm
Subject: Microsoft Settlement
It is a common misperception that Microsoft built it's monopoly
upon the proprietary nature of its Windows operating system. In
truth, Microsoft built its monopoly upon the proprietary and secret
nature of its communication protocols. One historically important
example of a proprietary communication protocol is the secret file
format utilized by Microsoft application programs such as Microsoft
Word and Microsoft Excel.
Because Microsoft wholly controls its secret communication
protocols it has the ability to modify a specific protocol with each
upgrade to an application program that uses said protocol. For
example, when Microsoft issues an update for an application program
such as Microsoft Word it has the ability to modify the file format
used to encode Microsoft Word documents. Because Microsoft holds a
monopoly within the application space that Microsoft Word competes
the change in file format triggers a chain reaction of events. Once
a critical mass of users adopts the new application program using
the modified communication protocol (in this case the Microsoft word
file format) other users are compelled to purchase the new version
of the application program because the older version cannot
understand and use the new protocol. People who wish to communicate
within this particular space but who do not own Microsoft Word are
compelled to purchase it, not because because the program offers
innovative new features, but simply because the application program
uses a proprietary protocol. Microsoft possesses both a monopoly and
a secret proprietary protocol in many application spaces. This fact
compels users to purchase Microsoft products instead of potentially
superior competing products, and it allows Microsoft to set the
price for these products at artificially high levels.
This situation amounts to a de facto arbitrary tax on
communication imposed by a private entity.
The simplest and fairest solution with the best opportunity for
success is to compel Microsoft to publicly document all of its
communication protocols, including, but not limited to, all of its
file formats. This solution is the fairest because it allows all
competitors, including Microsoft, to innovate with respect to
application features and performance, letting the market determine
the price. It also frees users who wish to communicate within a
particular space from the compulsion of purchasing Microsoft
products.
The simplest and best method for enforcing this behavior is to
require the government to confiscate any and all revenue derived
from each and every Microsoft product that directly utilizes, or
contains any sub component which utilizes, any communication
protocol that is not completely documented, including, but not
limited to, file formats.
MTC-00029342
From: James W Duffett
To: Microsoft Settlement
Date: 1/28/02 11:04pm
Subject: Microsoft Settlement
James W Duffett
11690 County Farm Road
Lexington, Mo 64067-;7101
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Wayne Duffett
MTC-00029343
From: Janice Johnson
To: Microsoft ATR
Date: 1/28/02 11:10pm
Subject: Microsoft Settlement
I wrote to Attorney General Ashcroft about my feelings about the
settlement. Now, I would like to tell you how I feel.
I hope so much that there will soon be a settlement to this long
drawn out affair. The
[[Page 28572]]
settlement that was outlined in the newspaper a few weeks ago seems
fair and just to me. As a retired educator, I was particularly
pleased to see that it involved gifts of materials and software to
schools. It seems like a wonderful way to help children who are the
consumers of the future. As an ``older'' consumer, I have
grave doubts about the fact that this continued bickering has
anything to do with the consumer at all. It appears to me to be an
unjust form of competition by some rival companies i.e. Sun
Microsystems, AOL, Oracle etc. and they are using to court system
which I fund as a taxpayer to further their own ends.
Please, make a fair and equitable end to the squabble. Microsoft
is a good company who really has done a wonderful job of focusing on
the consumer.
Sincerely,
Janice Johnson
9308 190th ST SW
Edmonds, WA 98020
MTC-00029344
From: Scott Dallmeyer
To: Microsoft ATR
Date: 1/28/02 11:10pm
Subject: Microsoft Settlement
The proposed settlement should not be approved as is. I do not
believe that the proposed settlement does anything to rectify the
situation created by the found criminal antitrust activities of
Microsoft Corporation. The reason for antitrust laws is to maintain
healthy competition and markets to promote more and better products.
The settlement as proposed only legitimizes the anticompetitive
behavior that has killed off so many potential innovators in the
software industry.
The proposed settlement is not in the best interests of the
consumers of software, in spite of the posturing of Microsoft.
Nothing they do or propose can be taken as being in the interests of
the consumers. They make so-called ``standards'' and
patent them (their message block structure for Windows XP to kill
off Samba) and poison emerging standards such as Java all in the
interest of Microsoft, not the consumer.
I am totally opposed to this settlement as now structured.
Thank you for the opportunity to comment,
Scott Dallmeyer
Winnetka, IL
MTC-00029345
From: Bob Bezona
To: Microsoft ATR
Date: 1/28/02 11:10pm
Subject: microsoft settlement
2219 Lummi Shore Road
Bellingham, WA 98226
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I encourage you to accept the recent anti-trust settlement
between Microsoft and the United States Justice Department because
it's good for Microsoft's competitors and good for those who
purchase software.
Microsoft has agreed to make the software market more
competitive by providing the necessary information for computer
makers to remove Microsoft products from Windows and to install
competing products in their places. Further, Microsoft has agreed to
not take actions against computer makers who decide to take this
route, nor will Microsoft prevent computer makers or software
developers from shipping or promoting competing operating systems or
software that runs on competing operating systems.
For these reasons, I encourage you to support the recent
settlement as good for Microsoft, good for its competitors, and good
for the consumers.
Sincerely,
Robert Bezona
MTC-00029346
From: Mike Mammarella
To: Microsoft ATR
Date: 1/28/02 11:10pm
Subject: Microsoft Settlement
I believe that the terms of the revised proposed final judgement
are too ambiguous; there is ample room for loopholes depending on
the way Microsoft chooses to define, for instance, ``digital
rights management.'' Microsoft has recently received a patent
for digital rights management operating systems, which means that it
would be not unreasonable to claim that the entire operating system
(of some future version of Windows) is a digital rights management
system and therefore exempt from API disclosure.
The terms must be more well-defined, but also not so narrowly as
to be specific to the technology of today. Microsoft will soon be
boasting a new platform called ``.NET'', which could
escape the terms of a too-narrowly defined ``operating
system'' and therefore also be exempt from many of the terms of
the judgement. Furthermore, I believe that simply limiting
Microsoft's illegal monopoly abuse is insufficient. Microsoft has
been accused of the same practices before, and reprimanded as a
result. However, this does not seem to have stopped Microsoft from
continuing the abuse of its operating system monopoly. A more
drastic measure could be in order; however this measure must be
carefully considered. I'd personally love to see Microsoft dissolved
entirely for its support of proprietary PC hardware interfaces (see
P.S.), but I realize that this is both unrealistic and uncalled for.
However, a split between the operating system division and the
software (and middleware) divisions would help to prevent future
monopoly abuse; both companies would also be well placed in their
respective markets from the beginning. There would need to be
restrictions on their interaction, in order to prevent what happened
to the AT&T fragments (they eventually joined together again)
after that famous split.
This is not the only possible solution. Others include requiring
the disclosure of some or all of Windows'' source code, or that
of Internet Explorer. These solutions could even be combined in full
or partial strength.
I am certainly no legal expert, however as a software engineer
and system administrator I feel I am qualified to make the
statements I have put forth here. I hope that they will be of use
and that the eventual decision will be beneficial to all involved,
with the possible exception of Microsoft which can only stand to be
in some way restrained from previous illegal activity.
Sincerely,
Mike Mammarella
P.S. A note about proprietary hardware interfaces--;in the
days of DOS, when a hardware manufacturer made a perhipheral device,
whether an adaptor card or a printer, they disclosed information
needed in order for the operating system or individual programs to
communicate and use that device. With the advent of Windows and its
driver interfaces, hardware manufacturers stopped releasing this
information, claiming its proprietary nature. Technically, this was
the decision of hardware vendors, but Microsoft was in the position
to encourage them to continue to disclose their protocols and it
instead encouraged the opposite. The effect of all this is that
other operating systems cannot support these devices unless the
manufacturer writes a driver for that operating system as well,
which due to Microsoft's monopoly is much less likely. This further
increases the barriers for entry into the operating system market.
MTC-00029347
From: Missy Nielsen
To: Microsoft ATR
Date: 1/28/02 11:10pm
Subject: Microsoft Settlement
I support the Microsoft/DOJ settlement.
I do not agree with the nine holdout states. I believe their
uncompetitive constituents are manipulating their AG... I remember
how difficult it was to access the internet. I remember how
difficult it was to use multiple software applications because none
would work with the others.
Microsoft has made my life as a consumer much, much easier and
productive. Yes, Microsoft is a monopoly, but they are a monopoly
that uses their position to benefit consumers.
Please tell Sun, AOL, Oracle, etc. to spend their money on
becoming competitive instead of fighting Microsoft.
Melissa Nielsen
MTC-00029348
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:10pm
Subject: MICROSOFT SETTLEMENT
ATTORNEY GENERAL , SIR
Please be advised as a Microsoft share holder and also user of
the products, I am urging the settlement of the law suit. I vote to
settle this suit knowing the provisions are tough, reasonable, fair
to all parties involved and goes beyond the findings of the Court of
Appeals ruling. It is prudent in my opinion to settle this suit now.
Sincerely a shareholder.
Mary Ann Myers
4310 N. Camino de Carrillo
Tucson, Arizona 85750--;6305
MTC-00029350
From: Barbara Sanders
To: Microsoft Settlement
Date: 1/28/02 11:06pm
Subject: Microsoft Settlement
Barbara Sanders
[[Page 28573]]
RR 1, Box 50A-1
Terra Alta, WV 26764
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Barbara A. Sanders
MTC-00029351
From: Johannes Garcia
To: Microsoft ATR
Date: 1/28/02 11:12pm
Subject: Microsoft Settlement
Ladies & Gentlemen:
We must continue to promote the best technology and give the
opportunity to those who wants the freedom to innovate in all area
of business and industries. Lets keep the courts and the politicians
out of technology especially in this critical time ``The New
World Economic''. If AOL wants to continue to played this role
in promoting policy (and politics) over technology especially as
they have done in the last three years and contributing in the
impeding of new technology. Let us remember man is the maker of his
destiny and we are all guilty if allowed it to happen. Why should
the American people be punished to pay for the legal cost of this
platform?
As we all know AOL has promised to open up their instant
messenger as Microsoft has done, so that we all can have a platform
to build services for it, but has AOL complied? NO. They say one
thing and do another.
Microsoft has done bad things in the past but is not the evil
some people make it out to be. If you had studied them in some
depth, you'd understand that.
Microsoft has done great things for the United States Economic
and World Economic and their contribution to ordinary people is the
real story. Let's keep our head over water and we should continue to
review all the facts and put every things on the balanced (World
Economic) before we make the biggest mistake in this new World
Economic.
Johannes Garcia
MTC-00029352
From: Carl C. Lochen
To: Microsoft ATR
Date: 1/28/02 11:12pm
Subject: Microsoft Settlement
Carl Lochen
30010 Rancho California Road
Apartment 124
Temecula, CA 92591-;2952
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft,
As an independent developer and supporter of Microsoft, I write
you in regard to the recent Microsoft Settlement. After three years
of negotiations, it seems strange that there may even be more delays
in the implementation of this plan. The process was extremely well
thought out and well monitored throughout. Because of this, the
terms that were reached benefit all involved.
As we go through these economically stressful times, it is
crucial that we support our technology at all levels. By holding up
this settlement, we take a backseat in the global market. Our entire
technology industry needs to get back to business, and because of
the agreement, we are ready to do so. Let us support our IT sector
and allow the terms to speak for themselves, including anti-
retribution and retaliation acts, and the sharing of selected
intellectual property.
Splitting up Microsoft
Specifically the non-Windows platform community has attacked
Microsoft for adding to much functionality to its OS, and therefore
stifling competition. They argue splitting up Microsoft, would make
it easier to compete with Microsoft. This ignores the large amount
of developers and companies that have made available more than 100
000 programs available on the Windows platform. Splitting up
Microsoft, will for them mean disrupting the dynamics of developing
cutting edge technology for Windows.
Windows Building blocks
Splitting up Microsoft into pieces, will create smaller
companies developing solutions/libraries that will not be included
in Windows and therefore be keeping secrets from other independent
developers who will have to develop their own incompatible
solutions. Splitting up Microsoft, destroys Windows's ability to
offer solutions for connecting together building blocks with the
latest technology. Solutions that are now incorporated in Windows
and documented for everyone, will end up as proprietary solutions
outside Windows. Making it less feasible for smaller developers to
keep up with the latest in technology.
Microsoft is giving us pre-tested building blocks guaranteed to
be interchangeable and compatible with each other. Developers using
these building blocks for their own designs, know that their
programs will be compatible with combinations of future designs
trying to link up with or work together with their designs. Think of
the many millions of errors windows is getting rid of for current
and future developers of software...
Whenever building blocks are rewritten with new interfaces,
previous interface(s) are still available to let older designs work
as building blocks change. This is true of COM+ and any of the API's
that come with Windows. It beats trying to design applications to
hook up to zillions of applications not using support from the OS.
The Internet building blocks Internet technology built into
Windows, assists applications using various Windows technologies in
communicating and sharing data with each other over the Internet.
This degree of integration between applications/components is only
possible by having these technologies built into the platform they
are running on. Internet Explorer built into Windows facilitates in
building web browsers. Any developer can build their own Web Browser
with their own customized controls. In less than a day they can
design their own Web Browser that is equal in power to Internet
Explorer. Just download the MFCIE project from Microsoft Developer
Network (has been available a couple of years). In less than a day
you implement remaining Internet Explorer Functions through the OLE/
COM+ interface. In a matter of days any organization can design
their own Internet portals that access primarily sites of their own
choosing.
Documentation for developing software Microsoft develops the
functionality and the building blocks needed for applications and
distributed components to interact with each other on the Windows
platform. Microsoft also provides Documentation and Developer
information for all developers to take advantage of these features.
Preventing Microsoft from freely expanding these features to provide
the latest technologies, will damage the industry's ability to
develop comprehensive integrated software solutions for the Windows
platform. Instead you will end up with incompatible proprietary
solutions and a less versatile Windows platform.
I urge you to support our economy at this time, and help this
settlement go through as it stands. I thank you for your support.
Sincerely,
Carl Lochen
cc: Representative Darrell Issa
MTC-00029353
From: John Cowhig
To: Microsoft ATR
Date: 1/28/02 11:12pm
Subject: Please be fair and don't reward Microsoft for breaking the
law.
I believe the proposed settlement is not punitive enough for
past behavior nor will it be very effective to deter future strong
arm tactics by Microsoft. At this point, the company has assured
itself a comfortable distance ahead of all major competitors.
However, as the linux and Macintosh OS community continue to try to
gain market share, Microsoft has moved onto conquer new frontiers.
It is important for the DOJ to focus on the future. The past
damage is done, but Microsoft continues to use tactics which act
[[Page 28574]]
against the spirit of the law. The masses will continue to take the
route Microsoft and AOL plan for them. However, there are many
innovative small companies and grass roots type programmers who
would like to continue to innovate. Please don't allow Microsoft to
continue to place barriers in their way.
Thank you,
John Cowhig
MTC-00029354
From: Mayer Etkin
To: Microsoft ATR
Date: 1/28/02 11:14pm
Subject: RE: My comments on the settlement. Please see attached
01-;02-;062 SEA
Clear Day
Capital Solutions, Inc.
Offices & Affiliates Worldwide
Email [email protected]
Seattle Office:
6719 Seward Park Avenue South
Seattle, WA. 98118
Tel 206-;723-;9353
Fax 206-;723-;9354
January 28th 2002
WPI # CSI APT 001
01-;02-;062 SEA
Confidential email of 2 pages to
[email protected]
Ms. Renata Hesse
Trial Attorney
Antitrust Division
US Department of Justice
RE: Comments on the Microsoft Settlement
Dear Ms. Hesse,
I am writing this email to you in my support of brining an end
to this travesty of justice. The United States Department of Justice
was suckered into persecuting Microsoft under the guise of an
antitrust action.
If I were the Judge and it were up to me, I would make the
following ruling.
* The court fines Microsoft the sum of $1.00
* The court specifically precludes any plaintiff from using the
case record in support of their civil motions or claims against
Microsoft if any.
The purpose of antitrust jurisprudence is not to enable a
competitor to gain what they what they otherwise fait to gain in an
open and competitive marketplace nor is the purpose to enable the
plaintiffs bar to file a bogus class action law suit and legally
extort $100 million dollars from a defendant because it's cheaper to
settle then to litigate.
* If it were up to me to rescind the conclusions of law and
findings of fact in this case, I would do so and dismiss the case.
Finally, I accept and approve of the settlement that the Federal
Government and Microsoft have agreed to and I order the states that
have not joined in it to accept it and to drop all further
litigation against Microsoft.
My reasons for making the above rulings are simple, go into any
computer store and there are choices to be made. A consumer has the
opportunity to decided for themselves exactly what their choice
should be. If Microsoft had not taken the actions that they had,
they would have run the risk of becoming an also ran in the software
business and their operating system would have become obsolete. What
one perceives as product improvement and natural migration in an
evolving market may be perceived by a competitor in a different
manner. It is up to the consumer to decide which is which and not
for the government to interfere and make that determination for
them. We are advocates of the law, not software engineers, designers
nor marketers. In a dynamic and fluid market as this case has shown,
what is being argued about is history not current events nor the
current state of the software business.
Let's hope the Judge has the courage to rule as suggested and
let companies do their battle with each other in the marketplace
free of government and judicial impediments.
Have a great day.
Sincerely yours,
Capital Solutions,Inc.
Mayer Etkin, President
MTC-00029355
From: Dearallie
To: Microsoft ATR
Date: 1/28/02 11:14pm
Subject: Microsoft Settlement
PHYLLIS CONANT
65 Kirkland Avenue Apt. 202
Kirkland, WA 98033-;6442 USA
Ph/FAX 425 828-;9474
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Now that the Department of Justice and Microsoft have reached an
agreement, why can't we just move on? It doesn't make sense that all
of these states and companies are jumping on the bandwagon. I think
that they are all liberal opportunists that are looking for a quick
buck. What benefit does all of this have on the economy? Zero.
Microsoft has gone out of its way to settle this case, beyond
what was required in the suit. They agreed to make available to the
competition, protocols implemented from parts of its operating
system that are used to operate with their server. Microsoft also
agreed to the creation of a technical committee that will monitor
Microsoft's compliance with the settlement and assist with any
disputes.
Now that Microsoft has agreed to such generous terms, shouldn't
we agree to let the settlement stand. Our Government has more
pressing issues that they need to focus their attention on. I trust
that you will do the right thing.
Thanks for your support in these efforts.
Sincerely,
Phyllis Conant
MTC-00029356
From: Rosemary Brubaker
To: Microsoft ATR
Date: 1/28/02 11:16pm
Subject: Microsoft Settlement
Judge Kollar-Kotally,
As a concerned citizen, I urge you to reject the proposed final
judgment in the U.S. vs. Microsoft antitrust case. Microsoft is
getting off easy, with most of its many billions in illegal profits
going untouched. I'm also worried that Microsoft will continue to
harm the high tech industry and the American consumer by using anti-
competitive bullying tactics. This convicted monopolist must be
dealt stronger punishment for the good of the public.
Sincerely,
Rosemary Brubaker
1502 Esbenshade Road
Lancaster, PA 17601
(408) 295-;7374
MTC-00029357
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/28/02 11:15pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Bruce Davis
R. R. 2, Box 769-;2
Locust Grove, OK 74352-;9626
MTC-00029358
From: Robert L. Jenkel
To: Microsoft Settlement
Date: 1/28/02 11:14pm
Subject: Microsoft Settlement
Robert L. Jenkel
587 E. Conestoga Circle
Grand Junction, CO 81504-;7004
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition
[[Page 28575]]
means creating better goods and offering superior services to
consumers. With government out of the business of stifling progress
and tying the hands of corporations, consumers--;rather than
bureaucrats and judges--;will once again pick the winners and
losers on Wall Street. With the reins off the high-tech industry,
more entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert L. and Joyce Jenkel
MTC-00029359
From: Chetan Prabhudesai
To: Microsoft ATR
Date: 1/28/02 11:19pm
Subject: Microsoft Settlement
Dear Mr. Ashcroft,
As a user of both Microsoft and Apple computer products, I have
to say that I feel Apple Computer has the edge in technology. The
fact that Microsoft has a commanding lead over Apple can be
attributed to Microsoft's superior marketing. Promoting one's
product has never been illegal before, and definitely should not be
now.
However, as I write this, I sit surrounded by Microsoft
products: Windows, Internet Explorer, MSN Messenger, etc. I am
typing this message on MSN Hotmail. Microsoft does have competitors
in all of its business segments, but by packaging its inferior
products together, it can make its software bundles seem superior to
these competitors.
My father owns stock in Microsoft, yet I still do not fully
support the company. It may not have committed a physical crime like
murder, but it has damaged America's economy by not allowing free
trade.
But perhaps economic crimes are not as bad as we think. Most
companies recover from recessions, wars, etc.
In my opinion, the only solution to the Microsoft case is to
stop it from bundling software. We cannot let Microsoft off too
easily, but we should not punish it too hard. Terrorism is a far
more important topic for the Supreme Court right now than a company
that supposedly stifled innovation.
Sincerely,
Chetan Prabhudesai, 15
MTC-00029360
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:21pm
Subject: Microsoft Settlement.
I think the settlement with Microsoft is full and fair. At no
time in history have consumers had access to such full-featured
software at such low cost. I have reviewed the settlement and it
seems to protect the public interest, while limiting Microsoft's
actions in the future. It also seems to go beyond the original case,
evidencing Microsoft's good faith in the matter.
Rebecca Ward
MTC-00029361
From: Sharon Rutland
To: Microsoft Settlement
Date: 1/28/02 11:17pm
Subject: Microsoft Settlement
Sharon Rutland
1068 Badger Road
North Pole, AK 99705
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Sharon I. Rutland
MTC-00029362
From: Norman Lasko
To: Microsoft Settlement
Date: 1/28/02 11:17pm
Subject: Microsoft Settlement
Norman Lasko
13400 Lakeview Dr. N
Omaha, AR 72662
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Norman E. Lasko
MTC-00029363
From: Leland Younkin
To: Microsoft ATR
Date: 1/28/02 11:22pm
Subject: Microsoft Settlement
Microsoft has developed their products for several years. It has
produced programs and systems that has greatly benefited millions of
consumers, businesses and governments.Without Microsoft's
innovations and market savvy we would still be in the dark ages of
the computer world Now comes a horde of lawyers (like vultures)
seeking to gain large settlements for their benefit. I am convinced
that they are not acting to benefit consumers. Just for their own
greed Let us put this whole case to rest and let Microsoft continue
to be innovative and produce their superior products for all
consumers.
Sincerely;
Leland A. Younkin
335 Glendora Circle
Danville, CA 04526-;3912
Email address [email protected]
MTC-00029364
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:23pm
Subject: MICROSOFT JUDGEMENT
SEE ATTACHED
MTC-00029364_0001
2010 Crestwood Drive
Richmond, Texas 77469
January 8, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am happy to hear that the Department of Justice is ending its
three-year antitrust lawsuit against Microsoft with a strong and
binding agreement. This costly affair should have been ended a long
time before this.
Microsoft did not get off easy. The settlement was arrived at
after extensive negotiations with a court-appointed mediator. The
company agreed to terms that extend well beyond the products and
procedures that were actually at issue in the suit- for the sake of
wrapping up the suit.
The agreement requires Microsoft to document and disclose, for
use by its competitors, various interfaces that are internal to
Windows'' operating system products that are used to
communicate directly with the basic Windows system. Microsoft has
also agreed not to retaliate against software or hardware developers
who develop or promote software that competes with Windows or that
runs on software that competes with Windows.
Microsoft has been distracted for long enough. This agreement
will very much
[[Page 28576]]
benefit its competitors. I do not believe any more litigation beyond
this settlement is necessary.
Sincerely,
Janey Schumacher
cc: Representative Tom DeLay
MTC-00029365
From: Douglas Schmutz
To: Microsoft Settlement
Date: 1/28/02 11:19pm
Subject: Microsoft Settlement
Douglas Schmutz
9404 Oakland AVe NE
Albuquerque, NM 87122-;3806
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
This is just a note to say that I feel the currently
contemplated settlement with Microsoft is a miscarriage of justice.
The company has been and continues to be guilty of monopolistic
business practices and is largely responsible for a great amount of
the insecurity of the WEB. The only reason they have a fairly
productive office suite is because they had to compete with
WordPerfect. They did not innovate, it was WordPerfect that was the
innovator, but because Microsoft controlled the operating system and
could do it. they kept secrets that allowed them to make their
product appear to perform better and made WordPerfect have
incompatibility problems. They finally practically ruined
WordPerfect by dropping prices and forcing computers to bundle their
products instead of WordPerfect. The result is that now, they can
(and do) raise the prices and of their products since the
competition is almost nonexistent and they ship buggy software, full
of security holes. I think it is in the interest of the consumer and
the industry to place huge monetary penalties on the company and
that money be distributed to software companies that used to compete
so they can get back in business. Also they should be banned from
producing software applications that run under Windows, so that they
would have no interest in undermining the performance of thirdparty
vendors.
Sincerely,
Doug Schmutz
MTC-00029366
From: robert shenk
To: Microsoft ATR
Date: 1/28/02 11:23pm
Subject: Microsoft Settlement
Not only does the agreement lack effective enforcement, but it
seriously fails to address past, present, and future anticompetetive
practices. We should also not reward companies that embrace
standards for the purpose of perverting them. The end result is that
the settlement preserves Microsoft's status quo. As a Senior
Software Engineer I find this rather frightening.
Robert Shenk
MTC-00029367
From: Bill
To: Microsoft ATR
Date: 1/28/02 10:51pm
Subject: Microsoft Settlement
It was unclear whether the deadline for submission was midnight
on 27 January or midnight on January 28, so please accept this
submission. The following is my opinion and understanding of
Microsoft based upon over 20 years of experience with computers and
electronics. I am not affiliated with any Microsoft competitor or
free competition group. Microsoft has significantly impacted my
choices and capabilities in a TREMENDOUSLY negative way. The impact
includes monetary, quality of life, and purchasing freedom. Due to
their anti-competitive practices, I have been forced into using an
inferior, OVERLY EXPENSIVE, and VERY COMPLEX product in my workplace
and where unavoidable, at home.
Microsoft via either restrictive licensing and/or their
initially ``free'' products coerces enough people using
their product that they can later drive the market. People then must
either use the Microsoft product or get left out of significant
capabilities which Microsoft did not initially create, but which
they have since taken over via either driving the real innovator out
of business, purchasing the real innovator (or a competitor), or
restrictive licensing. They have the money to do any of the three
and have clearly done all of them more times than any other company
in history. With only a few exceptions, MICROSOFT IS NOT AN
INNOVATOR AND NEVER HAS BEEN. n
Here are some (not exhaustive) examples of Microsoft's successes
or at least attempts to own or control nearly all aspects of the
computer/electronics industry (percentages or rankings are my guess
and better numbers should be easily obtained and will likely be
large or increasing):
Operating System (have nearly killed Apple) 60%
Word Processing (have nearly killed Wordperfect, killed Wordstar and
others) 80%
Spreadsheets (killed Lotus, I7...) 80%
Presentation 80%
Project Management (hurt FastTrack) 80%
DB (measurable impact to Oracle, Sybase) 40%
Browser (have nearly killed Netscape, killed Mosaic) 79%
Audio Player (will hurt RealPlayer, Quicktime) ??%
Movie Editor (intent to hurt iMovie and Final Cut Pro) ??%
Network-MSN (hurt AOL, others) 30%
Information--;.NET, Passport ??%
Servers (significant impact to Solaris, IBM, and HP Unix Servers)
??%
PDA Pocket PC OS (significant impact to PalmOS vendors) 45%
Gaming--;XBOX (targets are Playstation, Nintendo, others) ??%
Satellite TV--;Ultimate TV (target TiVo) ??%
SW Development.--;VisualBasic, C++, Classes (one area which they
helped originate)??%
Web Development.--;Frontpage ??%
PIMs--;Entourage (target Now-Up-To-Date and others) ??%
Encyclopedia--;Expedia (target Groliers, others) ??%
E-Mail SW--;Outlook (killed Quickmail, hurt Lotus) ??%
Design--;bought Visio ??%
Java (attempted hijack of the Sun standard) ??%
News--;MSNBC (CNN, Fox, others) #3
eGreeting Cards MSN#4
Expedia Travel #2
Webmail Hotmail Tied #1
Finance MSMoney#5
Housing MSN Home Advisor #4
PC Games AgeOfEmpires #2
As one can see, Microsoft has way too much control of too much
of our computing/electronics-related way of life. There are also
numerous other areas in which Microsoft has a least some interest
and which we are not yet even aware of. EVERYONE knows that once
Microsoft decides they want to dominate an area, there are few
companies IN THE WORLD which will be able to compete with them. This
is due to NOT JUST THEIR PRACTICES, but is also due to their ABILITY
and willingness to unethically (and illegally) leverage areas which
they already have control.
Please break Microsoft's applications development from their
operating system development. I believe this is the ONLY thing that
can prevent Microsoft from continued restriction of competition. I
strongly look forward to purchasing freedom and use of alternate
operating systems and applications, both at home and at work.
Thanks,
Bill Eller
Greenville, TX
MTC-00029368
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/28/02 11:24pm
Subject: Microsoft Settlement
My comments are attached.
Deborah Gouge
MTC-00029368--;0001
522 Woodland Road
Sewickley, Pennsylvania 15143
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
This is in regard to the settlement that has been reached in the
government's three- year antitrust case against Microsoft. I want to
let you know that I support the settlement that has been reached by
the parties involved. The continued pursuit of this case would be a
waste of time, money, and human resources. Microsoft will be making
a number of specific changes due to the settlement. For instance,
Microsoft has agreed to allow computer makers to remove the means by
which consumers access various features of Windows, Windows
Messenger, Microsoft's Internet Explorer, and Windows Media Player.
Also, the company has agreed to document and disclose various
interfaces that are internal to Windows'' operating system
products for use by its competitors. I ask that the government
accept the settlement, and stop continued litigation against
Microsoft.
Sincerely,
Deborah Gouge
cc: Senator Rick Santorum
[[Page 28577]]
MTC-00029369
From: Hamachek,Don
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/28/02 11:20pm
Subject: MicroSoft Settlement
12360 Edenwilde Drive
Roswell, GA 30075
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I would like to see the Microsoft settlement agreement
finalized. The litigation has dragged on for long enough, to the
detriment of the entire technology industry.
I work in the tech industry as a consultant for Cerner Company.
I have witnessed firsthand how this case has negatively affected the
technology world. Settling the case is in the best interest of
everyone.
The terms of the settlement agreement are reasonable. Microsoft
has agreed to license Windows to the 20 largest computer companies
at the same price. They have also agreed not to retaliate against
those who promote or develop software that competes with Windows.
These types of concessions will help allay fears of anticompetitive
business practices.
I appreciate your efforts at concluding this litigation. Thank
you for your consideration of my comments regarding this issue.
Sincerely,
Electronically signed
Donald Hamachek
MTC-00029370
From: Kattner
To: Microsoft ATR
Date: 1/28/02 11:24pm
Subject: Microsoft Settlement
Please accept settlement upon which you have requested public
input.
MTC-00029371
From: Abe Lum
To: Microsoft ATR
Date: 1/28/02 11:25pm
Subject: Microsoft Settlement
I was pleased to hear that the Department of Justice and a
number of states have made efforts at settlingthe Microsoft
antitrust case. I am writing today to urge the court to approve the
settlement agreement. Nothing can be gained by continuing litigation
in this case. Microsoft has been more than fair in agreeing with
changing some of their practices. I hope to see the agreements
finalzed in the near future. I thank you for your time and
attention.
Abe Lum
5004-;29th So.
Seattle Wash 98108
MTC-00029372
From: Thomas Keplar
To: Microsoft Settlement
Date: 1/28/02 11:21pm
Subject: Microsoft Settlement
Thomas Keplar
2710 Emmet Dr.
Logansport, IN 46947
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Thomas Keplar
MTC-00029373
From: Karen Martin
To: Microsoft Settlement
Date: 1/28/02 11:22pm
Subject: Microsoft Settlement
Karen Martin
897 S. Washington PMB 227
Holland, MI 49423
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Karen E. Martin
MTC-00029374
From: Joseph Wojtowicz
To: Microsoft Settlement
Date: 1/28/02 11:22pm
Subject: Microsoft Settlement
Joseph Wojtowicz
1390 Northfield Drive
Mineral Ridge, OH 44440-;9420
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joseph T. Wojtowicz
MTC-00029375
From: Harry Chandler
To: Microsoft Settlement
Date: 1/28/02 11:22pm
Subject: Microsoft Settlement
Harry Chandler
1109 Dixon Dr.
Chula Vista, CA 91911-;3304
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the
[[Page 28578]]
courtroom. And the investors who propel our economy can finally
breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Harry C. Chandler Jr.
MTC-00029376
From: Albert Bryson
To: Microsoft Settlement
Date: 1/28/02 11:23pm
Subject: Microsoft Settlement
Albert Bryson
P.O. Box 365
Cochranville, PA 19330-;0365
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
AlbertvBryson
MTC-00029377
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:27pm
Subject: Fwd: Attorney General John Ashcroft Letter
349 Gardiners Avenue
Levittown, NY 11756-;3701
January 26, 2002
Attorney General John Ashcroft
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As a retired accountant who has been following the Microsoft
antitrust case, I'm still trying to come to terms with the fact that
it was determined that Microsoft was acting as a monopoly. How has
the public been hurt by the practices of Microsoft? I remember when
the price of computers and software was prohibitive for the
consumer. Because of Bill Gates'' technical and business
acumen, DOS standardized and unified computer systems, and Windows
popularized the graphical user interface, dramatically increasing
user-friendliness and computer literacy. Thanks in large part to
these developments; computers are now commonplace and cheap,
reliable and easy to use, and versatile and useful in all kinds of
ways.
Now that a settlement has been reached, there is now the threat
of more litigation? It's a desperation move on the part of
Microsoft's competition. Since they lack the knowledge and the
fortitude to compete in the market, they're suing instead. And the
attorney generals of the nine states that want increased litigation
are only trying to further their careers by getting more money for
their respective states. This is grossly unfair.
Microsoft has gone out of its way to cooperate even beyond what
was expected. What other company has agreed to license its operating
system to the 20 largest computer companies on identical terms,
conditions and price?
Microsoft did. How many companies have agreed to disclose
various internal interfaces of their operating system to the
competition? Microsoft did. I guess that's not enough?! This lawsuit
has got to stop. It has dragged on for over three years and may take
another three years to resolve. I'm afraid for what this could do to
the economy if it is allowed to continue. More poor people have
moved up the ranks toward middle and upper middle class because of
Bill Gates. have full faith in Microsoft's ability to come back on
top if this litigation ends quickly. Otherwise, if the company is
allowed to be destroyed, it will have devastating effects on this
already fragile economy.
Sincerely,
Andrew Calapai
MTC-00029378
From: Walt Birdsall
To: Microsoft ATR
Date: 1/28/02 11:29pm
Subject: Microsoft Settlement
From 1979 to 1982, the Federal government squandered millions of
taxpayer money trying to destroy one of the finest companies the
American industrial genius has ever produced: International Business
Machines, commonly known as IBM. With its reputation for boat-anchor
reliable hardware and its legendary and meticulous obsession with
customer service, IBM was the standard by which all other computer
companies were measured.
At the last minute, the Feds broke up the phone company. Today,
our computers are world-class and our patchwork quilt phone system
is on par with Afghanistan.
The Federal government is now trying to destroy Microsoft,
probably using the same legal blunderbusses, the same hapless but
deep-pocketed taxpayers, and for the same misguided reasons: it's
too big, it's a monopoly, they make too much money, stifle
competition... et cetera, et cetera.
Do you folks not learn from past screw-ups?
As a professional software engineer, let me explain Windows to
you. Windows is typing. Nothing else is involved. No natural
resources were consumed, no wildlife was endangered, no wetlands
were compromised, and no child labor laws were violated (although
I've known some pretty immature teckkies in my day!) A bunch of ill
clad, anti-social, frequently unwashed engineers of dubious morals
and execrable personal habits, gather in consort... and they type.
And the public buys it. If you don't like it, don't buy it. Are
you with me?
A few years ago, some twit at the Department of Justice crowed
about having created a ``level playing field'' with
respect to Microsoft. (Sports metaphors are very much in vogue at
the DOJ.)
The next day there was great rejoicing in the streets of Bonn,
New Delhi, Tokyo, Taipei, and London. They just *love* level playing
fields!
It is the nature of the computer business that one company must
dominate and set the standards that define the industry. Previously,
that company was IBM; today, it is Microsoft. If you damage
Microsoft, you will foment an unimaginable Tower of Babel chaos. Do
you have any idea of the trillions of dollars of American wealth
that have been created and leveraged by Microsoft's craftsmanship?
Where would Mike Dell be? Intel? Seagate, Maxtor, and Western
Digital, if there were no Windows? How many printers do you think HP
would sell if there were no PCs to plug into? The Internet would
revert to what it once was: an academic play-toy.
Someday, the natural evolutionary forces of technology will
cause Microsoft to be set aside into an honored, hallowed place in
industrial fossil history, and to a well-deserved rest. My teckkie
brethren and I will then create a new enterprise.
Sadly, no one in government has any understanding in this arena
except to meddle and create unimaginable mischief.
Please do us all a favor and just go away.
Walt Birdsall
Retired software engineer
MTC-00029379
From: ALBERT M. JACHENS
To: Microsoft Settlement
Date: 1/28/02 11:25pm
Subject: Microsoft Settlement
ALBERT M. JACHENS
4492 W. SIERRA
FRRESNO, CA 93722-;2916
January 28, 2002
Microsoft Settlement
[[Page 28579]]
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
ALBERT M. JACHENS
MTC-00029380
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:29pm
Subject: Microsoft DOJ Settlement
8426 Academy Street
Houston, Texas 77025
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to say that I am pleased that the Justice
Department and Microsoft have finally agreed upon a settlement.
Microsoft's philosophy of a computer in every home with everyone
having access to the Internet at a reasonable price has made this
country the most computer literate in the world. I understand this
settlement will force Microsoft to make a number of specific changes
to its products and business practices.
I only hope that this ``government'' control will not
stifle Microsoft from continuing to develop new products at
reasonable prices and advancing computer communication and usage.
Sincerely,
Rex Morris
8426 Academy St.
Houston, Tx 77025
713-;592-;6549
[email protected]
MTC-00029381
From: Gail Hemmerich
To: Microsoft Settlement
Date: 1/28/02 11:24pm
Subject: Microsoft Settlement
Gail Hemmerich
4464 Mosquito Lake Road
Deming, Wa 98244
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Gail Hemmerich
MTC-00029382
From: Jeff Jarrard
To: Microsoft Settlement
Date: 1/28/02 11:25pm
Subject: Microsoft Settlement
Jeff Jarrard
601 S Washington St. Apt. 407
Seattle, WA 98104
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
It should also be noted that the explosive growth in the host
count on the Internet, the boom in new technology and innovative new
business models (such as the one from which I am sending this
message) were made possible by Microsoft's Internet Explorer, not
Netscape. The Internet was a fledgling, hard-to-use network closed
to the ``average American'' before Microsoft included I.E.
in Windows 95. It was nothing more than a hobbyists pastime until
then.
Thank you for this opportunity to share my views.
Sincerely,
Jeff Jarrard
MTC-00029383
From: George Gribben
To: Microsoft Settlement
Date: 1/28/02 11:27pm
Subject: Microsoft Settlement
George Gribben
580 Highland Hills Dr.
Howard, OH 43028
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
George A. Gribben, Jr.
[[Page 28580]]
MTC-00029384
From: Gayle Drake
To: Microsoft Settlement
Date: 1/28/02 11:26pm
Subject: Microsoft Settlement
Gayle Drake
10211 Old Fort Rd.
Klamath Falls, OR 97601
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Gayle Drake
MTC-00029385
From: John Hughes
To: Microsoft ATR
Date: 1/28/02 11:32pm
Subject: Microsoft Settlement
I am against the current settlement between the justice
department and the nine states with Microsoft. As a consumer of
computer products I feel that Microsoft has abused it's monopoly
power and will continue to do so. As a consumer I feel that I should
be allowed choices of the features that my operating system on my
computer should have.
Sincerely,
John Hughes
[email protected]
MTC-00029387
From: Wayne Quinton
To: Microsoft ATR
Date: 1/28/02 11:32pm
Subject: Microsoft Settlment
January 23, 2002
Attorney General John Ashcroft
US Department of Justice,
Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing to tell you what I think of the Microsoft Case.
This case is certainly not serving the public interest; it wasn't
even brought on by the public. It was brought on because of their
competitors'' influence and is now being paid for with tax
money. This case is a ridiculous waste of tax money. People are
suing Microsoft because they can't compete. I think there is
something wrong when the law allows that.
Microsoft is passing on their technology secrets to their
competitors and has even promised not to retaliate when competitors
create products from that technology that would compete with
Microsoft. If that's not fair, then I don't see what would be.
Breaking up the company would be disastrous to our country's
economy.
This settlement is long past due and needs to be accepted
immediately.
Accepting this settlement is the right way to end this mess.
Thank you for your time.
Sincerely,
Wayne Quinton
The Highlands
Seattle, WA 98177
MTC-00029389
From: Karen Horovitz
To: Microsoft
ATR,[email protected]@
inetgw,...
Date: 1/28/02 11:35pm
Karen Horovitz
Period 2
1/28/01
To Whoever it may concern-
I think that the government should accept the settlement from
Microsoft. Although Microsoft is a monopoly, in our history there
have been many other monopolies. One of them, Rockafeller's oil
monopoly, had given him huge profits. Rockafeller had gotten rich on
a trust fund. Now the new issue is Netscape vs Internet Explorer.
AOL Time Warner is suing Microsoft because they claim that they
have been bundling their software with Internet Explorer browser and
that this has reduced the internet market share for Netscape.
Well I don?t think Netscape should be blaming Microsoft when
they are actually the ones who are bundling.
They bundle their product with both the hardware and software,
making the buyer actually get two things in one.
Not only this, but AOL Time Warner is a huge company. They own
many sub-companies. These companies include Warner Bros., AOL, and
many other entertainment companies. Because of this, they probably
are just suing Microsoft because they want to be the biggest
company. Microsoft spokesperson Jim Desler says, ?AOL Time Warner
has been using the political and legal systems to compete against
Microsoft for years?? This just shows that they sued Microsoft to
compete against Microsoft. Microsoft may not be the only ones
violating the antitrust act.
MTC-00029390
From: Joseph Beyer
To: Microsoft Settlement
Date: 1/28/02 11:29pm
Subject: Microsoft Settlement
Joseph Beyer
1527 S.E. Schiller St.
Poreland, Or 97202
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Joe Beyer
MTC-00029391
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:34pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The intention of this letter is so that I may express my
feelings about the antitrust suit against Microsoft, and the
settlement that was reached last November that ended that suit. The
Department of Justice and Microsoft agreed to terms on a proposed
settlement, and I support that proposition.
I do believe however, that Microsoft should have been left alone
in the first place. There are many other corporations that should
have received the attention from the government that Microsoft did.
There are terms in the settlement that go a little far, especially
the ones that force Microsoft to turn over their intellectual
property to competitors. They will be documenting various interfaces
and source code that is internal to the Windows'' operating
system, and giving that to their competitors. This is a travesty of
justice.
The antitrust suit against Microsoft was uncalled for, but I
guess that the settlement is the best thing that could have
happened. It could have been much worse. I support the
[[Page 28581]]
settlement because I do not wish to see any further legal action
taken against Microsoft.
This entire law suit was brought about because of sour grapes on
the part of a few people, namely Sunmicro system's CEO. With his
connections with a few Senators, namely Warren Hatch from Utah. He
was able to get a senate hearing, and the rest is history.
Gosh darn it, the Federal Government can do us a great deal more
good by going after such corporations as big oil. Look at what they
are doing with the price of oil, at this very moment, with market
control of prices almost varying by zip code. And they talk of Bill
gouging the public for his Windows programs and getting by with it
due to a lack of competition--; please, give me a break.
Sincerely,
Harry Riddle
P.O. Box 88
No. Lakewood, WA 98259
CC:[email protected]@
inetgw
MTC-00029392
From: David Little
To: microsoft.atr
Date: 1/28/02 11:34pm
Subject: Microsoft Settlement Comment
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
28 January 2002
Ms. Hesse,
This letter presents my comments to the Proposed Final Judgment
in the Microsoft Settlement. I object to the PFJ on the following
grounds:
-It fails to require the release of the Office file formats. As
I IT professional I've seen the lack of alternative Offices packages
as a key source of the Microsoft's hold on the desktop since the
ability in exchange documents in binary form is a key to
collaboration both inside and outside the organization.
-It fails to address Enterprise License Agreements. Microsoft's
licensing of both the OS's and Office require payment for all
computers. As computers are scrapped due to age the licenses can't
be moved the newer machines since OEM's require an OS to be
installed.
-It fails to provide an effective enforcement mechanism.
Microsoft has shown its willingness to circumvent agreements in the
past. Without a strong enforcement mechanism I believe they will do
so again.
There have been several lists of issues publish but these are
the ones I consider the most important.
Thank you for the opportunity to comment.
David H. Little, Jr.
PO Box 90111
Raleigh, NC 27675
[email protected]
MTC-00029393
From:
[email protected]@ine
tgw
To: Microsoft ATR
Date: 1/28/02 11:34pm
Subject: microsoft
Virginia Stone
215 Shope Creek Road
Asheville, NC 28805-;9796
January 23, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft: After three long years, the Department of
Justice and Microsoft have reached an agreement ending the antitrust
suit brought against Microsoft. I want to give my support to this
settlement and ask that you do also.
Microsoft has been more than fair in dealing with this issue.
Microsoft has agreed to work with companies to achieve a greater
degree of reliability with regard to their networking software;
Microsoft has agreed to grant computer makers license to configure
Windows so as to promote non-Microsoft software.
The list goes on and on. Microsoft and the Department of Justice
obviously want to put this case behind us. Further litigation will
only be counterproductive.
Give your support to this agreement. Thank you.
Sincerely,
Virginia Stone
MTC-00029394
From: Sandy Graham
To: Microsoft ATR
Date: 1/28/02 11:36pm
Subject: Microsoft Settlement
January 28, 2002
Dear Mr. Ashcroft:
I am writing to express my support in the recent settlement
between Microsoft and the federal government. I sincerely hope that
no further litigation is being pursued at the federal level.
It is my opinion that any further action would be completely
unnecessary. Saundra Graham [email protected]
MTC-00029395
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:34pm
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon
from the desktop; the fact is, this case against Microsoft is little
more than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user.
This is just another method for states to get free money, and a
terrible precedent for the future, not only in terms of computer
technology, but all sorts of innovations in the most dynamic
industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Terese Marks
3122 Heritage
Troy, MI 48083-;5784
MTC-00029396
From: F. John Leonard
To: Microsoft Settlement
Date: 1/28/02 11:33pm
Subject: Microsoft Settlement
F. John Leonard
69 Farr Lane
Elmira,, NY 14903-;7907
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Mr. F. John Leonard
MTC-00029397
From: John Moon
To: Microsoft ATR
Date: 1/28/02 11:38pm
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I recently learned the federal government and Microsoft settled
their antitrust lawsuit. As the CTO of a custom software
applications firm utilizing Microsoft technology, I would like to
express my satisfaction with the settlement of this matter out of
court.
Continued litigation on this matter would not be productive and
would only serve to make the lawyers rich at the expense of
innovation, among other things. That is why Microsoft wants to
settle--;not to mention it has been forced to spend untold
millions on defending itself for the past three years.
Settling this lawsuit will lift the cloud of apprehension and
nervousness that has plagued many tech firms since its inception.
[[Page 28582]]
The positive affects of settling this matter are quite clear. It
will enable my company to continue designing custom applications
without the headache of triple-sourcing which is what a Microsoft
breakup would have caused. This may sound like a minor thing,
however, it is not. It would be an inefficient administrative
nightmare that would affect the performance of the company.
It is my hope that the settlement is finalized at the conclusion
of the public comment period. It is in everyone's best interest.
--;John Moon
[email protected]
310/300-;1701
digital builders, inc.
310/DIGITAL
310/300-;1600 fax
www.digitalbuilders.com
MTC-00029398
From: Rolland Brengle Jr
To: Microsoft ATR
Date: 1/28/02 11:38pm
Subject: MICROSOFT SETTLEMENT
I believe the settlement Microsoft offered should be accepted by
the DOJ. Consumers are the ones that will benefit from using
Microsoft products.
R. M. Brengle, Jr.
3325 Center
Highland MI 48357
MTC-00029399
From: Leland Younkin
To: Microsoft ATR
Date: 1/28/02 11:40pm
Subject: Microsoft Settlement
Microsoft has developed their products for several years. It has
produced programs and systems that has greatly benefited millions of
consumers, businesses and governments.Without Microsoft's
innovations and market savvy we would still be in the dark ages of
the computer world
Now comes a horde of lawyers (like vultures) seeking to gain
large settlements for their benefit. I am convinced that they are
not acting to benefit consumers. Just for their own greed Let us put
this whole case to rest and let Microsoft continue to be innovative
and produce their superior products for all consumers.
Sincerely;
Leland A. Younkin
335 Glendora Circle
Danville, CA 04526-;3912
Email address [email protected]
MTC-00029400
From: RICHARD SMITH
To: Microsoft ATR
Date: 1/28/02 11:40pm
Subject: Microsoft Settlement
11531 Reltas Ct.
Cincinnati, OH 45249-;1707
January 28,2002
The Hon. John Ashcroft;
Attorney General;
U.S. Department of Justice;
950 Pennsylvania Avenue, NW;
Washington, DC 20530-;0001
Dear Mr. Attorney General:
The Department of Justice made a good pitch to Americans at the
start of the ``U.S. vs. Microsoft'' lawsuit. We were told
that the consumer needed government intervention to avoid being
injured by Microsoft's unethical business practices. However, three
years of litigation have proven enormously expensive for Microsoft
and for the federal government. The inevitable result will be that
any substantive benefit the settlement brings to the consumer will
be balanced or outweighed by the great burden that the suit has been
for the IT industry as a whole. Microsoft will have to reveal
portions of Windows code to competitors and by being subject to the
permanent scrutiny of a three person committee formed to review
Microsoft's actions for years to come. This should be considered a
fair resolution.
PLEASE--;let's stick to the agreement!! Anymore time and
resources spent in persuing Microsoft at the federal level can only
serve to raise the price of the lawsuit to customers and taxpayers.
It is high time to see this matter put behind us. The Department of
Justice must end this lawsuit as soon as this period of public
comment is concluded.
Very sincerely,
Richard Smith
MTC-00029401
From: James Brubaker
To: Microsoft ATR
Date: 1/28/02 11:41pm
Subject: Concern re the Microsoft Settlement
Honorable Judge,
I'm writing to ask you to reject the proposed final judgment in
the U.S. vs. Microsoft case. Microsoft has been found to have
violated our nation's antitrust laws, reaping many billions of
dollars of profits in the process.
This proposed settlement would allow the company to retain
almost all of that. I am also concerned that there are no provisions
to protect us from Microsoft's continuing anticompetitive behavior.
There is no indication Microsoft will cease its antitrust
violations, and the company is left to police itself!
Actually, the proposed final settlement would amount to a
government validation of the monopoly. I urge you to reject the
proposed final judgment as it is not in the best interest of the
public.
Respectfully,
James Brubaker
1502 Esbenshade Rd.
Lancaster, PA 17601-;4450
717-;295-;7374
MTC-00029402
From: Pat Iler
To: Microsoft Settlement
Date: 1/28/02 11:37pm
Subject: Microsoft Settlement
Pat Iler
3510 W. Shady Side Road
Angola, IN 46703
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Pat Ier
MTC-00029403
From: James T Pulaski
To: Microsoft ATR
Date: 1/28/02 11:42pm
Subject: My comments on the MS antitrust settlement
My view is that no one operating system should entirely dominate
the market.
Not Windows, Mac OS, OS 2 Warp, Linux, Unix, nor Be OS.
So I think Windows needs to be around, but Microsoft has just
gotten to big!
I only want to make a few quick suggestions. These comments
should be in addition to other remedies already decided.
Microsoft (MS) should be forced to make a choice between the
software business and the operating system (OS) business.
If they want to be in the software business, Windows should be
made open source. This would prevent MS from taking over the market
by virtue of being first to the OS table. It would foster innovation
by making the playing field even.
If they want to be in the operating system business, then all
other software divisions should be spun off into separate entities
(or one big software entity). This again would take away the
incentive for MS tying software inexorably to their operating
system.
In addition, I like the idea of giving something to education. I
think they should donate $800 million cash to the nations schools to
be used for computer training and equipment. The schools would be
free to choose what-ever brand of computer and operating system they
prefer.
That is my two cents! Good luck!
Jim Pulaski
MTC-00029404
From: Todd Buckley
[[Page 28583]]
To: Microsoft ATR
Date: 1/28/02 11:43pm
Subject: Microsoft Settlement
I am writing this letter to voice my concern over the monopoly
power that Microsoft Corporation has used in order to retard
innovation in the computer industry. I have been a computer user for
almost 20 years and I have seen many technologies come and go, but
never have I witnessed a company with such zeal and destructive
power. I am sure Microsoft truly believes that it is innovating and
improving the quality of life for the general computer user, but I
find it interesting that the patents held by Microsoft are
significantly smaller than patents held by other companies, such as
Apple Computers, Inc.
Where has the innovation come from? Microsoft is excellent at
copying and mass marketing technology, but they do not innovate for
the good of humanity. Quotes like this sum it up, ``Through its
conduct toward Netscape, IBM, Compaq, Intel, and others, Microsoft
has demonstrated that it will use its prodigious market power and
immense profits to harm any firm that insists on pursuing
initiatives that could intensify competition against one of
Microsoft's core products,'' Jackson wrote in his findings of
fact in November 1999.
This is completely true. I have first-hand experience working
with Microsoft and it isn1t pleasant. I have watched companies such
as Apple Computer, Real Networks, and BE, Inc. create new,
beneficial products for the market, but to only get strong armed by
Microsoft. And another quote that demonstrates Microsoft1s behavior.
``Many of the tactics Microsoft employed have also harmed
consumers indirectly by unjustifiably distorting competition.''
There are numerous things that Microsoft has introduced that
have badly hurt the consumer such as Security. Look at how many
viruses have been spread. This directly equates to reduced
productivity. Where is the innovation? Think about Digital Video.
Apple1s Quicktime was the first computer program to use moving
images and sound on a broad level for computer users. That was 1990.
This lead to Real Networks, or Progressive Networks at the time,
which created the ``streaming'' audio and video market
over the Internet. It wasn1t until much later that Microsoft finally
realized this would be an important part of an end-users experience.
Microsoft did not innovate. They used their desktop OS volume to
force feed consumers with a second rate technology. After many,
seven, development cycles Microsoft has managed to release a good
product, but there were good products available before. This
behavior does not benefit the end-user.
Apple contracted with a 3rd party to help develop QuickTime for
Windows. Unable to countenance Apple's success with a Windows add-on
and incapable of developing an equivalent technology within, the
Microsoft camp hired the same company to bail out Video for Windows.
Lo and behold, Apple programmers discovered amazing similarities in
Microsoft's code. Apple filed an injunction and forced Microsoft to
rework their code. As part of the recent deal, Microsoft paid Apple
100 million dollars and Apple has agreed to drop such contentious
issues and cross license core technologies. Potentially, of course,
the market for QuickTime or a Windows equivalent is enormous.
Another example of Microsoft abuse is the user interface. Apple
filed patent 5,959,624, in January 1997 which enabled many
innovations in the user interface for the desktop computer.
Microsoft copied many of these things. Microsoft did not innovate.
There is no justification for Microsoft1s behavior. The massive
power and influence of Microsoft has hurt the consumer by limiting
innovation. There are numerous more examples I could site, but I
want to keep this letter to the point. Microsoft is a monopoly.
Microsoft has harmed the consumer directly through its actions.
Microsoft has not innovated on the consumers1 behalf. As this
settlement continues please, keep these things in mind. Microsoft
should not be allowed to continue with ``business as
usual'', but they should be punished accordingly. The
punishment should not be a simple solution, but a complete solution
that will enable an industry to grow and thrive like a balanced eco-
system.
Thank you,
Todd Buckley
CC:
[email protected]@inetgw,attorney.gener...
MTC-00029405
From: Philip Brazil
To: Microsoft Settlement
Date: 1/28/02 11:39pm
Subject: Microsoft Settlement
Philip Brazil
5205 Sabin Ave
Fremont, CA 94536
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Philip E Brazil
MTC-00029406
From: Kevin Schumacher
To: Microsoft ATR
Date: 1/28/02 11:44pm
Subject: Microsoft Settlement
I am a private citizen, not employed by any computer-industry
company, organization, or group, writing about my concern the
effects of Microsoft's business practices have had on the
``free market''. I have not been asked to write on behalf
of anyone, or any company.
Microsoft is a moving target, a company who the courts have
recently agreed, has ``won'' by cheating, a company who
has a history of using dirty tricks, intimidation, and taking
advantage of every possible loophole. They also made a mockery of
their last ``agreement'' with the DOJ by violating it at
every opportunity, and what has the government learned from these
experiences? --;Not enough, apparently.
If you will indulge me for a moment, my ``prediction''
for the future is that Microsoft will be spending more & more of
their time in courts all over the world, not just in the US. Have
you seen Microsoft's FY2001 last quarter's charge of $600,000,000.00
for ``legal expenses''? This trend will be growing
--;exponentially, and ``rightly'' so. The Chinese, UK,
and French governments have realized how firmly they are in
Microsoft's grip, and how much of their national wealth is being
paid to this (American) gorilla...so much so that the Chinese
government's policy is to move to Linux. Others will follow.
I'm quite sure that Sun will continue to develop Star Office. I
also think that Apple's Mac OS X will be adopted in more business
environments, but only because it does work well in a WinTel-
dominated networking world. Apple must improve OS X's
interoperability with Windows networking environments to have any
real hope of growing their market share. This assumes that
Microsoft's moving target strategy, combined with their -embrace, -
extend, -extinguish, tactic (``because our customers demand
it!''), or the ever-present FUD (Fear, Uncertainty, and Doubt)
factor effect, or finally their last big gun, the
$36,000,000,000,000 in their savings account, --;doesn't slow
Apple down so much that it's impossible for them to succeed...a BIG
assumption. In the end, even if a few other companies produce a
great new product, Microsoft will simply BUY THEM, --;if the DOJ
allows...just like they bought SGI's intellectual property, i.e.
OpenGL...which, by the way, Apple's OS X uses (what a coincidence!),
or simply develop a clone and then pollute the original.
--;Java, anyone? Here's a quote from a very recent article
published on the web:
``The second most common critique had to do with my
comments about Apple being a niche player. Many readers brought up
examples of strong companies that themselves enjoy no more--;and
sometimes less--;than 4.5 percent overall market share. But that
reaction is (pardon the expression)
[[Page 28584]]
like comparing Apples to oranges. BMW and Ben & Jerry's are
viable companies with relatively small market share. But neither of
them is competing in a market dominated by one proprietary
technology platform. There is no 95 percent gorilla in the jungle of
the automobile or ice cream market. But there is one in the personal
computer world, and it's called Wintel.'' No, no, no! It's
called ``Microsoft'', not ``WinTel''! AMD is a
major alternative/competitor, to be fair, and there are several
minor players as well, but, --;there's only ONE Microsoft. This
point is critically important! Microsoft is the world-dominating,
company-killing machine; it's Microsoft steering the boat...Intel is
a very grateful passenger, trying very hard not to rock the boat
(too much). Remember when Intel tried to ``do their own
thing'' by developing their own multimedia software, and how
Microsoft responded? Nothing happens without Bill's approval,
combined with ``plausible deniability''. Sound familiar?
Requisite knowledge for CEO's, these days.
Apple has suffered through a decade of negative press, who
constantly produce headlines asking the same question, ``Can
Apple Survive Another Year? ...why not ask the other, more relevant
question, --;''How Does Microsoft Constantly Defeat All
Other Companies?''...and then ask why consumers, and the US
Government, don't seem to care one iota until they find bloody
corpses littering corporate America? Netscape, DR-DOS, VisiCalc,
Apple (and the innovator, -QuickTime!). Microsoft copies everyone,
adds it to their OS, which kills the innovators. ...RealNetworks,
and Java, next?
Or, Microsoft ``competes'' with Sony's Playstation by
buying up the gaming developers to ensure Xbox-only titles. Sounds a
lot like one of the tactics used to ensure the ``success''
of Windows. If Microsoft can't/isn't allowed (anti-trust issues) to
buy them up, Intel steps in for the assist; look to the audio &
video companies for some recent examples (Terran & Avid). Is
this the way companies win? Is this ``competing'' in
America?
I have two questions, and I hope you will think about them
before coming to a decision regarding an appropriate settlement with
Microsoft:
1. (If) I have a great new idea for a piece of software, an idea
so good that it is certain to change the way computers are used by
everyone...business, consumers, schools, etc... How Likely Is It,
That I Could Ever Hope To Bring It To Market Where The 900 Pound
Gorilla Rules?
2. Why do the real innovators in today's computing world fare so
poorly? How is it possible to have great ideas/products/management/
funding, etc...and still fail completely? So completely, that
there's room enough only for Microsoft?
Consider that Apple's very future relies on Microsoft continuing
to publish MS Office Suite for Macintosh, and that, should Microsoft
ever want to put Apple out of business overnight, they could by
discontinuing this one product. Think I'm exaggerating?
How is it possible to arrive at a just remedy, without first
addressing these issues? As you search for a remedy, consider making
--;file formats--; a ``government & ISO-mandated
World Standard''...so that at the very least, Microsoft won't
be able to constantly use their embrace/extend/extinguish tactics
--;''because our customers demand it!''
Consider splitting the company into an Applications Group, and
an Operating Systems Group. This is NOT as radical a solution as
some have made it out to be.
Consider forcing Microsoft to make Apple (or some other third
party company) a licensee of MS Office Suite for Macintosh, to
remove the doubt & worry from the marketplace put there by
Microsoft, that maybe, one day, we'll stop publishing it for the
Mac...then where will all of you poor Mac-users be?
Sincerely,
Kevin Schumacher
771 13 th St
San Diego, CA 92101-;7303
MTC-00029407
From: John Thurlow
To: Microsoft ATR
Date: 1/28/02 11:46pm
Subject: Microsoft Settlement
Dear Sirs,
I truly hope this settlement will be accepted so that this whole
matter can be put behind us and we can move on. As a consumer I have
often felt that some of the more extreme remedies proposed by some
of the Attorney's General and Microsoft's opponents amounted to
something of a sword hanging over my head a punishment for all those
years ago having abandoned the Apple II in favour of a Gateway PC
because I could not afford to buy into Apple's Macintosh
``monopoly''. I could see in Microsoft a company which had
offered me a way forward when I was stuck on an aging architecture
(the Apple II) being carved and quartered in a way that meant the
products I currently use and depend on would be negatively impacted.
Suffice to say that whilst I believe Microsoft is not totally
blameless, I have never bought into the notion that they are a
purely malevolent force and the scourge of the industry, the fact is
that Microsoft was never handed a ``monopoly'' it had to
earn that position of dominance from scratch and the sad truth is
that attaining that position had as much to do with their
competitors ineptitude and greed as it did with Microsoft's
innovation and savvy. I will not dwell on my differences with the
monopoly ruling and all that stemmed from that and some of the crass
opportunism on the part of Microsoft competitors and lawyers that
continues to flow from that decision, but will focus on my two cents
worth regarding this settlement.
The proposed settlement offers not only a way to bring this
protracted process to a close, but also addresses the concern of
choice and flexibility in the market by giving OEM manufacturers a
greater choice in how they configure their PC's without the fear of
retaliation from Microsoft. Further the agreement promises to bring
a level of openness and transparency to Microsoft's dealing with
OEM's by having a published schedule which lays down equal terms for
them within defined bands based on the volume of licenses they move
and not on their software bundling strategies. Indeed OEM's will
have much flexibility in what they can do and will only need be
mindful of whether these things are actually what consumers want
instead of casting eyes warily toward Redmond. The proposed
settlement offers similar flexibility to Internet Service Providers.
The proposed settlement also promises something for application
developers by mandating full disclosure by Microsoft of the API's in
their so called ``middleware'' products whilst at the same
time protecting Microsoft's intellectual property rights, after all
Microsoft is going to be an important player in the competitive
ecosystem, offering the only credible competition to the likes of
AOL, Sony and Palm whilst the likes of these companies keep
Microsoft on its toes and the only change in play should come from
new players rising on their merits and not the stifling of any
player through litigation. This proposed settlement also offers to
consumers the real prospect of being able to chose if they wish to
remove certain components from Windows which are currently
mandatory, it also offers protection for Non-Microsoft
``middleware'' and requires the consumers consent before
any Microsoft ``middleware'' can remove any Non-Microsoft
icons or alter any default associations to Non-Microsoft
``middleware''.
To oversee this proposed settlement it is proposed there be
Technical Committee of three persons to keep a vigilante eye and
ensure the spirit and the letter of the agreement are being
enforced, I think the nature of its composition should also ensure
that it does not overly favour one party or another, something the
appointment of a special master may run the risk of. It is also good
to see that either party can have a recourse should they feel that
any of the TC members is not performing as they should and that they
are clear procedures defined for their replacement. The proposed
settlement also makes provision for a Microsoft Internal Compliance
Officer, someone within Microsoft who would have the responsibility
for overseeing Microsoft's compliance with the proposed settlement,
giving the buck somewhere to stop; we also see where they would be
responsible for a web site that would clearly state how third
parties can issue complaints to the TC and it also lays out how the
TC would deal with and process these complaints. Five years seems
like adequate time for this proposed agreement to run its course but
should time prove otherwise a two year extension is readily
available, during which time any new remedies could be explored if
necessary.
Though I support this agreement over continued litigation, I
fear the later may prevail as many powerful interests now seem to
have a lot vested in the course of litigation and I fear it is us
consumers who will end up paying for this tiresome business through
having Microsoft continually drawn away from innovation and toward
the court and eventually through it having to recover the expenses
off this exercise and its penalties through its products and quite
possibly our wallets.
On a whole I must say that whilst I view antitrust as well
intentioned I feel it is time
[[Page 28585]]
we started to put our minds to more creative and dynamic
alternatives, I myself intended to post something for discussion on
my website once I purchase it and get the software to put it up. On
a whole I feel the antitrust process takes far too long and lacks
the dynamism of the market and runs the risk of losing its
objectivity to political ambition and commercial intrigue, I think
we could do much to make the market more self regulating,
competitive and innovative if we could address the monopoly created
by patent without robbing the inventor of the rewards that often
drive his innovation. Such new thinking could address not only cases
in the Computer Industry but also Pharmaceuticals and other
controversial industries and also allow truly brilliant ideas and
concepts to become universal and broadly applied to the benefit of
the consumer and the inventor. Unfortunately that is not for this
forum at this time, thank you for taking my submission, I hope my
support will help put this issue to rest.
Sincerely,
John Thurlow.
MTC-00029408
From: Raul Cayado
To: Microsoft ATR
Date: 1/28/02 11:48pm
Subject: Microsoft Settlement
Dear Sir,
I feel that this matter should be laid to rest. For the good of
our Nation and our economy. How long will they maliciously try to
extort money from a company that has done so much for our economy.
In my opinion Microsoft has already paid and settled.
Sincerely,
Raul A Cayado
MTC-00029409
From: Harold A Harvey
To: Microsoft Settlement
Date: 1/28/02 11:42pm
Subject: Microsoft Settlement
Harold A Harvey
2019 Sage Valley Drive
Richardson, TX 75080-;2359
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers, dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Harold A Harvey
MTC-00029410
From: Thomas Dell
To: Microsoft Settlement
Date: 1/28/02 11:44pm
Subject: Microsoft Settlement
Thomas Dell
4902 W 24 Th. Pl.
Kennewick, WA 99338
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers, dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Thomas R. Dell
From: David Barrett
To: Microsoft ATR
Date: 1/28/02 11:49pm
Subject: Comments of SBC Communications Inc. on the Proposed Final
Judgment
January 28, 2002
Renata Hesse, Esq.
Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530
Re: United States v. Microsoft Corp.
Dear Ms. Hesse:
Pursuant to the instructions in the Competitive Impact Statement
in United States v. Microsoft Corp., we are submitting to the
Department of Justice as an attachment to this e-mail the Comments
of SBC Communications Inc. on the Proposed Final Judgment. We would
appreciate your sending a reply to this email at your earliest
convenience to confirm your receipt of SBC's submission.
In addition, to guard against the risk of a faulty email
transmission, we are tonight sending a hard copy of SBC's Comments
to you via U.S. Postal Service Express Mail.
Thank you for your consideration.
Very truly yours,
David A. Barrett
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
X
UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No.
98-;1232 (CKK)
MICROSOFT CORPORATION, Defendant.
STATE OF NEW YORK ex. rel.
Attorney General ELIOT SPITZER, et al., Plaintiffs, Civil Action No.
98-;1233 v. (CKK)
MICROSOFT CORPORATION, Defendant.
X
COMMENTS OF SBC COMMUNICATIONS INC. ON THE PROPOSED FINAL JUDGMENT
PAUL K. MANCINI
Vice President & Assistant General Counsel
PATRICK J. PASCARELLA
Senior Counsel
WILLIAM R. CALDWELL
Senior Counsel
SBC COMMUNICATIONS INC.
175 East Houston
San Antonio, Texas 78205
DONALD L. FLEXNER
DAVID A. BARRETT
STEVEN I. FROOT
NICHOLAS A. GRAVANTE, JR.
HARLAN A. LEVY
BORES, SCHILLER &
FLEXNER LLP
5301 Wisconsin Avenue, NW
Washington, DC 20015
Telephone: (202) 237-;2727
Facsimile: (202) 237-;6131
January 28, 2002
TABLE OF CONTENTS
Page
No.
Table of Authorities............................................. viii
Index of Abbreviations Used to Refer to Court Decisions and xi
Pleadings In This Case..........................................
Index of Abbreviated Terms Used In These Comments................ xiii
[[Page 28586]]
I. INTRODUCTION.................................................. 1
II. A MONOPOLIZATION REMEDY MUST BE TAILORED TO THE NATURE AND 12
SCOPE OF THE OFFENSE, THE DURABILITY OF THE UNLAWFUL MONOPOLY,
THE IMPORTANCE OF RESTORING COMPETITION TO THE AFFECTED MARKET
AND THE LIKELIHOOD OF RECURRING ACTS OF MONOPOLIZATION..........
A. The Court Of Appeals Sustained A Finding Of Successful And 12
Longstanding Monopolization In A Crucial Technology Industry..
1. Microsoft Has Monopolized A Critical Industry............. 12
2. Microsoft's Monopoly Has Endured For More Than A Decade... 12
3. Microsoft's Increasing Monopoly Power Is Protected By 14
Significant Barriers To Entry...............................
4. Microsoft's Monopoly Has Self-Perpetuating Incentives..... 14
5. Microsoft Has Shown Itself Able And Willing To Extinguish 15
Competitive Threats As Fast As They Emerge In A Rapidly
Changing Technological Environment, And Willing To Harm
Consumers And Degrade Its Own Products In Order To Exclude
Competitors From The Market.................................
a. License Restrictions.................................... 16
b. Commingling Source Code................................. 16
c. Exclusionary Agreements................................. 17
d. Actual And Attempted Coercion And Retaliation To Exclude 18
Competitors...............................................
e. Efforts To Subvert Sun-compliant Java Technologies...... 19
B. The Remedy In This Section 2 Case Must Be Broad And 21
Prophylactic, To Prevent Microsoft From Denying Consumers The
Benefit Of Competition By Retaining Illegally-Maintained
Monopoly Power................................................
1. Purpose Of Relief......................................... 21
a. End Anticompetitive Practices And Prevent Their 21
Recurrence................................................
b. Restore Competition (Deny The Fruits Of Wrongdoing)..... 23
2. The Law Requires Effective Measures To Accomplish These 24
Results.....................................................
a. Relief Must Neutralize Monopoly Power At Its Source And 24
Eliminate The Monopolist's Incentive To Exclude
Competitors From The Market...............................
b. Relief Must Anticipate New Forms Of Exclusion, 24
Commensurate With The Evidence Of Microsoft's Incentive To
Exclude And Its Willingness To Do So At The Expense Of
Consumers And Its Own Product Quality.....................
c. Relief Must Prevent Regulatory (Decree) Evasion......... 25
d. Relief Must Be Of Sufficient Duration To ``Pry 26
Open'' The Monopolized Market By Allowing Competitive
Products To Take Root.....................................
i. It Takes Years For Competitive Alternatives--;Web 26
Portals, Servers And Middleware--;To Develop, Even
Assuming Lack Of Obstruction............................
ii. Software Developers And Other ``Investors'' 27
Need Confidence That The Decree Will Provide Protection
Long Enough To Give Their Investments A Fair Chance To
Be Viable...............................................
C. The Tunney Act Requires Courts To Reject Seriously Deficient 28
Decrees.......................................................
III. THE PROPOSED SETTLEMENT FAILS IN EVERY MATERIAL RESPECT TO 32
ACHIEVE THE OBJECTIVES OF RELIEF REQUIRED BY THIS CASE AND
AFFIRMATIVELY PROVDES A ``GREEN LIGHT'' AND AN
INCENTIVE TO ENGAGE IN EXCLUSIONARY CONDUCT.....................
A. The Government Has Abandoned Its Prior Effort To Use 32
Injunctive Relief To ``Pry Open'' The Monopolized
Market, Conceding That Its Purpose Is Now Merely To Protect
``Nascent'' Threats To The Windows Monopoly.........
B. The Proposed Settlement Is Riddled With Loopholes That 35
Invite Evasion, Does Not Anticipate And Prohibit New Forms Of
Exclusionary Conduct To Protect The Windows Monopoly, And
Discourages The Development Of Competition To Windows.........
1. The Proposed Settlement Provisions To Protect Middleware 35
Do Not Adequately Address Microsoft's Past Illegal Conduct,
Much Less Prevent Its Recurrence In The Future..............
a. The Definitions In The Decree Effectively Leave 36
Compliance At Microsoft's Discretion......................
i. The Definitions Of ``Microsoft Middleware'' 36
And ``Microsoft Middleware Product'' Encourage
Microsoft To Continue Binding Middleware To Its Monopoly
Windows Operating System................................
ii. The Definition Of ``Non-Microsoft Middleware 40
Product'' Is Too Narrow To Protect The Ability Of
Products And Competitors To Gain Equal Access To The OEM
Distribution Channel....................................
iii. The Definition Of ``Windows Operating System 42
Product'' Grants Microsoft Unfettered Discretion To
Decide What Is And What Is Not Part Of Its Operating
System..................................................
b. The Settlement Fails To Prohibit Tactics Used By 43
Microsoft To Foreclose OEM Distribution Of Competing
Products And Allows That Unlawful Behavior To Continue....
i. A Prohibition Against Commingling Of Code Is Necessary 44
To Prevent Microsoft From Continuing To Exclude
Competition That Threatens The Windows Monopoly.........
ii. The Proposed Settlement Omits Any Requirement That 48
Microsoft Offer A Stripped-Down Version Of Windows At A
Price That Reflects The Value Of The Removed Middleware
Products................................................
iii. The Provisions In The Proposed Settlement That 50
Putport To Foster OEM Flexibility In Product
Configuration And Middleware Choices Contain Fatal
Ambiguities And Loopholes...............................
c. Provisions That Putport To Allow End-Users And OEMS To 54
Enable Or Remove Middleware Products Are Severely Flawed..
i. Inability To Actually Remove Microsoft Products From 54
The Operating System Cripples The Effectiveness Of The
Decree..................................................
iii. The Exceptions And Limitations Contained In The End 55
User/OEM Control Provisions Swallow The Relief Provided
And Permit Microsoft To Override OEM Or End-User
Selections Of Preferred Middleware Products.............
(a) Microsoft Can Alter End-User/OEM Choices........... 56
(b) Microsoft Can Override End-User/OEM Middleware 57
Default Choices.......................................
iii. The Timing Of Implementation Of Section III.H Allows 60
Microsoft To Reap The Fruits Of Its Past Illegal Conduct
Without Adequately Limiting Its Conduct Today Or In The
Future..................................................
2. Provisions Designed To Protect Interoperability Between 62
Microsoft Products And Non-Microsoft Products Are Seriously
Flawed......................................................
a. The Government's Original Remedy Required Broad And 63
Meaningful Interoperability Disclosure By Microsoft.......
b. The Proposed Settlement's Interoperability Disclosure 69
Requirements Are Wholly Inadequate........................
[[Page 28587]]
i. Important Areas Of Potential Competition In The 69
Monopolized Market Are Not Included In The
Interoperability Disclosure Provision...................
(a) The Proposed Settlement Will Not Achieve Server 70
Interoperability......................................
(b) The Settlement Fails To Require Disclosure To 72
Enable Interoperability Between Internet Explorer And
Non-Microsoft Servers.................................
(c) The Proposed Settlement Does Not Contain An 76
Interoperability Disclosure Provision To Cover Server-
To-Server Communications..............................
(d) The Proposed Settlement Does Not Contain 77
Interoperability Disclosure Provisions To Cover
``Embedded Devices''........................
(e) The Technical Information That Is Required To Be 78
Disclosed Under The Proposed Settlement Is
Insufficient To Achieve Interoperability..............
(f) The Timing Of The Required Disclosure Under The 80
Proposed Settlement Will Impede, Not Promote,
Competition...........................................
(g) Important Terms In The Proposed Settlement Are So 84
Loosely Defined That They Enable Microsoft To Avoid
Disclosure............................................
ii. The Mandatory Licensing Provisions Are Illusory...... 85
iii. The Limitation Upon Disclosure Based On Alleged 88
Security Concerns Is A Massive Loophole.................
3. The Proposed Settlement Fails To Remedy The Proven Pattern 91
Of Unlawful Retaliation, Inducements, And Exclusive Dealing
Arrangements Used By Microsoft To Maintain Its Monopoly.....
a. The Government's Settlement Substitutes Weak And Narrow 93
Protections Of Third Parties For The Strong And Broad
Provisions Justified By Microsoft's Conduct...............
i. The Range Of Parties Protected From 95
``Retaliation'' Is Too Limited................
ii. ``Retaliation'' Is Not Defined............. 96
iii. The Party Injured By Retaliation Must Prove 97
Causation...............................................
iv. Retaliation Not Involving Windows Or Middleware Is 97
Allowed.................................................
v. Loopholes Vitiate Even The Existing Limitations....... 97
vi. Unnecessary And Ambiguous Savings Clauses Undermine 98
The Decree..............................................
vii. There Is No Prohibition On Agreements Limiting 98
Competition.............................................
viii. There Is No Protection Against Retaliation For 99
Participating In This Lawsuit...........................
b. The Proposed Uniform Licensing To OEMs Is Insufficient.. 99
i. Allowing ``Market Development Allowances'' 101
Invites Evasion.........................................
ii. Microsoft Is Allowed To Keep License Terms Secret.... 101
iii. There Is No Independent Verification Of 102
``Volume'' Discounts..........................
iv. License Terminations Without Cause Are Allowed....... 102
c. The Proposed Settlement Fails To Address Exclusive 103
Dealing Adequately........................................
i. The Exclusive Dealing Prohibition Is Limited To 105
Identified Parties Only.................................
ii. Paying Third Parties To Refrain From Using Non- 105
Microsoft Products Is Allowed...........................
iii. Microsoft Can Pay Others To Distribute Its Monopoly 106
Software................................................
iv. The Exclusive Dealing Provision Is Riddied With 107
Loopholes...............................................
4. The Term of the Settlement Is Too Short--;Even If Its 107
Deficiencies Were Corrected.................................
5. The Proposed Settlement Nullifies Effective Enforcement... 111
a. The Technical Committee Proposal Is Misguided........... 111
b. All Relevant Employees Should Be Required To Be Trained 113
In The Decree, But Are Not................................
c. The Proposed ``Dispute Resolution'' Mechanism 114
Encourages Delay..........................................
IV. DEFICIENCIES IN THE PROPOSED SETTLEMENT CREATE SIGNIFICANT 115
RISKS FOR SBC'S COMMUNICATIONS AND DATA BUSINESSES, INCLUDING
SBC'S INTERNET-RELATED BUSINESSES. WHICH DEPEND UPON OPEN
ARCHITECTURE AND COMPETITIVE ALTERNATIVES.......................
A. How SBC Competes, Or Will Compete, With Microsoft........... 116
1. Telephone, Cellular And Internet Service--;5.......... 116
2. Unified Messaging......................................... 118
B. UMS Is An Integral Part Of The Movement To A Server-Based 120
Computing Model That Will Erode The Applications Barrier To
Entry That Currently Shields Microsoft's Monopoly Power.......
C. The Proposed Settlement Would Allow Microsoft To Render 122
SBC's Internet-Based Businesses Significantly Less Competitive
1. The Proposed Settlement Will Allow Microsoft To Block 122
Consumers' Access To Competing Products And To Impede Their
Functionality...............................................
i. Blocking Access to UMS................................ 122
ii. Degrading the Performance of UMS..................... 123
iii. Denying UMS Access to the Windows Desktop........... 123
2. Microsoft Can Foreclose Competition By Using Its Ability 124
To Raise Its Rivals' Costs..................................
3. Consumers Who Want To Access The Internet Will Have To 125
Have A Windows Operating System, Which Will Increase The
Cost To The Consumer For UMS................................
4. The Proposed Settlement Will Stifle Innovation And Force 126
Competitors To Sacrifice Quality In Certain Critical Markets
5. Delayed Disclosure Will Harm Competition.................. 129
V--;--;: WITHOUT SIGNIFICANT CHANGES, THE PROPOSED 131
SETTLEMENT CANNOT SATISFY THE PUBLIC INTEREST STANDARD..........
A. Changes Must Be Made to RPFJ III.A (OEM and 132
Other Licensee Retaliation)...................................
B. A Provision Prohibiting Retaliation By Microsoft Against Any 135
Party Who Participates In The Litigation Must Be Added........
C. A Provision Requiring Microsoft To Port ``Office'' 135
To Apple's Operating System Must Be Added.....................
D. Changes Must Be Made To RPFJ III.B (Uniform 136
Licensing)....................................................
E. A Provision Requiring Equal Access to Microsoft Licensing 136
Terms And Conditions Must Be Added............................
F. A Provision Prohibiting Microsoft From Enforcing Agreements 137
That Are Inconsistent With The RPFJ Must Be Added.............
G. Changes Must Be Made to RPFJ III.C 137
(Restrictions on OEM Configuration of PCs)....................
H. A Provision That Prohibits Microsoft From Commingling Must 141
Be Added......................................................
[[Page 28588]]
I. A Provision Determining The Relative Prices Of Unbundled 142
Versions of Windows Must Be Added.............................
J. A Provision Requiring That Microsoft Continue To Offer 143
Predecessor Versions Of Windows Must Be Added.................
K. Changes Must Be Made To RPFJ III.D And 144
III.E (Interoperability Disclosure)...........................
L. A Provision That Requires Mandatory Distribution of Java 145
Must Be Added.................................................
M. A Provision Prohibiting Interference With Or Degradation Of 145
Non-Microsoft Middleware Must Be Added........................
N. A Provision Requiring Microsoft to Comply With Industry 146
Standards Must Be Added.......................................
O. A Provision Requiring Open-Source Licensing for Internet 148
Explorer Must Be Added........................................
P. Changes Must Be Made To RPFJ III.F (Retaliation 149
Against Any Third Party)......................................
Q. A Provision Prohibiting Microsoft From Entering Agreements 151
That Limit Competition Must Be Added..........................
R. Changes Must Be Made To RPFJ III.G (Ban on 151
Exclusive Dealing)............................................
S. Changes Must Be Made To RPFJ III.H (OEM/End 154
User Control of the Desktop)..................................
T. Changes Must Be Made To RPFJ III.I (Mandatory 156
Licensing)....................................................
U. Changes Must Be Made To RPFJ III.J (Limitations 156
on Mandatory Licensing).......................................
V. Changes Must Be Made To RPFJ IV And V 157
(Compliance And Enforcement)..................................
W. Changes Must Be Made To RPFJ VI (Definitions).. 158
VI. CONCLUSION................................................... 160
TABLE OF AUTHORITIES
Cases Page No.
Ford Motor Co. v. United States, 405 7, 21, 24, 26
U.S. 562 (1972).
Hartford-Empire Co. v. United 26
States, 323 U.S. 386 (1945).
Int'l Salt Co. v. United States, 332 7, 21, 22, 24, 26, 27
U.S. 392 (1947).
N. Pac. Ry. v. United States, 365 29
U.S. 1 (1958).
Nat'l Soc'y of Prof'l Eng'rs v. 21, 22
United States, 435 U.S. 679 (1978).
Otter Tail Power Co. v. United 26
States, 410 U.S. 366 (1973).
Schine Chain Theaters, Inc. v. 10, 23, 28
United States, 334 U.S. 110 (1948).
United States v. Am. Tel. & Tel. ..................................
Co., 552 F. Supp. 131 (D.D.C.
1982), aff'd sub nom.
Maryland v. United States, 460 US 6, 11, 24-;32, 116-;117
1001 (1983).
United States v. American 110
Broadcasting Co., Inc., Civ. No.
74-;3600 (RJK), 1980 WL 2013
(C.D. Cal. Nov. 14, 1980).
United States v. Business Inv. & 113
Dev. Corp., No. MO-81-CA-20, 1982
WL 1866 (W.D. Tx. July 16, 1982).
United States v. Crescent Amusement 26
Co., 323 U.S. 173 (1944).
United States v. Delta Dental of 113
R.I., No. Civ. A. 96-;113P,
1997 WL 527669 (D.R.I. Feb. 15,
1991).
United States v. E.I. du Pont de 21, 23, 25
Nemours & Co., 366 U.S. 316
(1961).
United States v. General Elec. Co., 86, 87
115 F. Supp. 835 (D.N.J. 1953).
United States v. Glaxo Group Ltd., 26, 28
410 U.S. 52 (1973).
United States v. Greyhound, Civ. No. 110
95-;1852 (RCL), 1996 WL 179570
(D.D.C. Feb. 27, 1996).
United States v. Grinnell Corp., 384 23, 24, 29
U.S. 563 (1966).
United States v. GTE Corp., 603 F. 111
Supp. 730 (D.D.C. 1984).
United States v. Microsoft Corp., 13, 112
147 F.3d 935 (D.C. Cir. 1998).
United States v. Microsoft Corp., 56 29, 30, 31, 131, 132
F.3d 1448 (D.C. Cir. 1995).
United States v. Playmobil USA, 110
Inc., Civ. No. 95-;0214, 1995
WL 366524 (D.D.C. May 22, 1955).
United States v. Republic Services, 110
Inc., Civ No. 00-;2311, 2001
WL 77103 (D.D.C. Jan. 18, 2001).
United States v. U.S. Gypsum Co., 22, 23, 28, 30
340 U.S. 76 (1950).
United States v. United Shoe Mach. 21,24
Corp., 110 F. Supp. 295 (D. Mass.
1953), aff'd, 347 U.S. 521 (1954).
United States v. United Shoe Mach. 22, 26
Corp., 391 U.S. 244 (1968).
United States v. Western Elec. Co., ..................................
569 F. Supp. 1057 (D.D.C. 1983),
aff'd sub nom..
California v. United States, U.S. 26, 86
1013 (1983).
United States v. Western Elec. Co., 113
Civ. No. 82-;0192 (HHG), 1991
WL 33559 (D.D.C. Feb. 15, 1991).
United States v. Western Electric 116-;117
Co., 673 F. Supp. 525 (D.D.C. 1987).
Zenith Radio Corp. v. Hazeltine 25
Research, Inc. 395 U.S. 100 (1969).
Statutes:
15 U.S.C. 16......... i, 1, 28, 29
42 U.S.C. 125
251-;59,
271.
Other Authorities:
Benjamin Woodhead, Microsoft's 38
Australian Monopoly? Let the U.S.
Handle It, iTNews (Nov. 17,
1999), at http://
www.itnews,com.au/
story.cfm?ID=507.
Browser Bruiser, Chicago Sun 80
Times, October 27, 2001.
Byron Acohido, Challenging 4, 118
Microsoft? It Could Take Moxi,
USA Today, Jan. 16, 2002.
Byron Acohido, Microsoft Memo to 90
Staff: Clobber Linux, USA Today,
Jan. 4, 2002.
T. Capers Jones, Estimating 143
Software Costs Function Point
Analysis: Measurement Practices
for Successful Software Projects
(1998).
David Garmus and David Herron, 143
Function Point Analysis:
Measurement Practices for
Successful Software Projects
(2000).
Department of Justice, Antitrust 108
Division Manual.
Don Clark, AOL Sues Microsoft Over 47
Netscape in Case That Could Seek
Billions, Wall Street Journal,
Jan. 23, 2002.
Experience the Connected Home: 43
Share One or Many Computers (May
9, 2001), at http://
www.microsoft.com/windowsxp/home/
evaluation/experiences/
connectedhome.asp.
[[Page 28589]]
Is Apple Out of the Running in the 14
Operating Systems War? (Jan. 8,
2002), at http://
www.websidestory.com/
cgibinwss.cgi?corporate&news&
press 1--;163.
Jesse Berst, Office Suites for 38
Free, ZDNet AnchorDesk (March 7,
1997), at http://www.zdnet.com/
anchordesk/story/
story--;743.html.
Lee Gomes, Linux Campaign Is An 90
Uphill Battle For Microsoft, Wall
Street Journal, June 14, 2001.
Microsoft Unveils New Home PC 4, 127
Experiences with
``Freestyle'' and
``Mira'', (Jan. 7, 2002),
at www.Microsoft.com/presspass/
Press/2002/Jan02/01.
MSN Shuts Out Other Browsers, 80
Associated Press, October 28,
2001.
Rebecca Buckman, Microsoft is 90
Suing Linux Start-up Over Lindows
Name, Wall Street Journal,
December 24, 2001.
Wayne Epperson, NT Insurance at a 91
Premium, HostingTech (August
2001), at www.hostingtech.com/
security/01--;08--;nt.
INDEX OF ABBREVIATIONS USED TO REFER TO COURT DECISIONS AND PLEADINGS
IN THIS CASE
CA Decision of the United States Court of Appeals for the
District of Columbia Circuit on Microsoft's appeal from the Final
Judgment. United States v. Microsoft Corp., 253 F.3d 34 (DC Cir.
2001) (en banc).
CIS Competitive Impact Statement, flied by the Department of
Justice in United States v. Microsoft Corp., Nos. 98-;1232,
98-;1233 (CKK). 66 F.R. 59492 (Nov. 28, 2001).
D.Ct. CL Conclusions of Law entered by the District Court on
April 3, 2000. United States v. Microsoft Corp., 87 F. Supp.2d 30
(D.DC 2000).
D.Ct. at Findings of Fact entered by the District Court on
November 5, 1999. United States v. Microsoft Corp., 84 F. Supp.2d 9
(D.DC 1999).
Felten Decl. Declaration of Edward Felten in support of
Plaintiffs' Memorandum in Support of Proposed Final Judgment, filed
in the District Court on April 28, 2000 (corrected May 2, 2000).
Final Judgment Final Judgment, entered by the District Court on
June 7. 2000. United States v. Microsoft Corp., 97 F. Supp. 2d 59,
64-;74 (D.DC 2000).
Gov't CA Brief Brief for Appellees United States and the State
Plaintiffs, filed in the Court of Appeals for the District of
Columbia Circuit on February 9, 2001.
Gov't D.Ct. Memo Plaintiffs' Memorandum in Support of Proposed
Final Judgment, filed in the District Court on April 28, 2000
(corrected May 2, 2000).
Gov't D.Ct. Reply Memo Plaintiffs' Reply Memorandum in
Support of Proposed Final Judgment, filed in the District Court on
May 17, 2000.
Gov't D.Ct. Sum. Resp. Plaintiffs' Summary Response to
Microsoft's Comments on Revised Proposed Final Judgment, filed in
the District Court on June 5, 2000.
Henderson Decl. Declaration of Rebecca Henderson in support of
Plaintiffs' Memorandum in Support of Proposed Final Judgment,
filed in the District Court on April 28, 2000 (corrected May 2,
2000).
Litigating States' Plaintiff Litigating States'
Remedial Proposal, filed in the District Court on December 7, 2001.
Microsoft D.Ct. Com. Defendant Microsoft Corporation's Comments
on Plaintiffs' Revised Proposed Final Judgment, filed in the
District Court on May 26, 2000.
Romer Decl. Declaration of Paul M. Romer, in support of
Plaintiffs' Memorandum in Support of Proposed Final Judgment,
filed in the District Court on April 28, 2000 (corrected May 2,
2000).
RPFJ Revised Proposed Final Judgment. The proposed settlement
entered into by the government and the Settling States with
Microsoft, filed in the District Court on November 15, 2001.
Shapiro Deck Declaration of Carl Shapiro in support of
Plaintiffs' Memorandum in Suppert of Proposed Final Judgment,
filed in the District Court on April 28, 2000 (corrected May 2,
2000).
INDEX OF ABBREVIATED TERMS USED IN THESE COMMENTS
API Application Programming Interface
HTML Hypertext Markup Language
IAP Internet Access Provider
ICP Internet Content Provider
IE Internet Explorer
ISP Internet Service Provider
ISV Independent Software Vendor
JVM Java Virtual Machine
OEM Original Equipment Manufacturer
OLS Online Service Provider
PC Personal computer
PDA Personal Digital Assistant
SBC Communications Inc. (``SBC'') respectfully submits
the following comments pursuant to Sections 2(b) and 2(d) of the
Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-;(h), relating to the revised proposed Final
Judgment that was agreed to on November 6, 2001, by the United
States and certain state plaintiffs in these actions on the one
hand, and defendant Microsoft Corporation (``Microsoft'')
on the other (the ``proposed settlement'').
1. INTRODUCTION
The history of Sherman Act enforcement has witnessed few
unlawful monopolies as durable, resilient and exclusionary as
Microsoft's. This much is clear from the trial record, the District
Court's monopoly maintenance findings and the Court of
Appeals' affirmance. Far from providing reassurance that
changes in technology will end Microsoft's stranglehold over
operating system and middleware competition, or that the company's
monopoly will be subject to serious competitive pressures when the
proposed settlement's five-year term expires, the record
demonstrates the exact opposite. Microsoft's continuing ability to
commingle its browser and operating system, which the settlement
ignores, leaves Microsoft with the incentive and ability not only to
destroy traditional middleware threats to its operating system
monopoly, but also to exercise anticompetitive control over the
Internet, where server networks currently not dependent on Windows
pose the greatest threat to the Microsoft monopoly. The consequences
of failing to restrain an ever-expanding Microsoft operating system
monopoly--;now at over 95% market share--;do not, however,
fall solely upon software producers whose competitive assaults might
erode that overwhelming market domination. Nothing in the proposed
settlement would stop the threat that Microsoft's adjudicated and
unlawfully-maintained monopoly poses to the very heart of consumer
choice in the American economy. The settlement ignores Microsoft's
ability to effectively destroy free consumer choice among the far
greater array of businesses that use electronic means of
communication--;such as telecommunications services (local, long
distance and cellular), Internet access, voice messaging, instant
messaging, video and music services, e-commerce, interactive games,
to name a few. The settlement would allow Microsoft to abuse its
illegally-maintained control of operating systems by becoming the
ultimate ``gatekeeper,'' controlling the bottleneck that
both gives businesses in these critical related markets (whether
established or still emerging) access to potential customers, and
gives consumers the means to reach the providers that they choose to
deal with.
Just as Microsoft has for years successfully imposed on
consumers its own products and services, irrespective of the
comparative merits of competing products it has excluded from the
market, Microsoft will--;without the kind of strong relief
required to break its operating system monopoly--;be in a
position to repeat its anticompetitive strategy in other markets.
Unchecked, Microsoft will favor its own and its partners'
services, exclude competitors' products and services from
access to consumers, and degrade its rivals'' services and
raise their costs (by charging a toll, imposing a tee for listing as
an available service or creating an interoperability obstacle).
Because potential customers will have to pass through a Microsoft
operating system (whether embedded in a PC, a cellular
[[Page 28590]]
phone, a set-top box or a PDA), Microsoft will retain the ability to
exclude or marginalize all manner of telephone services, messaging
products, video or music offerings, Internet services, and other
``utilities'' of modem life. In this way, the Microsoft
monopoly threatens to destroy the vast panoply of consumer choice
among the myriad sources that create and distribute communications
and entertainment products and services. The proposed settlement
does virtually nothing to lessen Microsoft's ability to maintain its
operating system monopoly and to prevent its enhancement by
Microsoft's impeding effective competition for all the products and
services that will have to be accessed through Microsoft's monopoly
platform.
SBC is one of the businesses that will be significantly
impacted. Through its affiliates, SBC provides voice and data
communications services throughout the United States and
internationally. Some of these services are Internet-based; others
are not. Some of SBC's services (such as its unified messaging
service, discussed below) would erode Microsoft's operating system
monopoly; others will not. All, however, are at risk if Microsoft is
not prevented from maintaining and expanding its operating system
monopoly. Thus, while SBC devotes a significant portion of its
comments to explaining why curing the palpable deficiencies in the
proposed settlement is essential to protect Internet-based services
that could erode the Microsoft monopoly, including SBC's own
ventures, those deficiencies are of equal importance to SBC's core
communications businesses.
The reason why the effects of the Microsoft monopoly reach so
far can be summed up in a single
word--;``convergence.'' Convergence refers to the
development, for home or office use, of devices or platforms that
will provide consumers with multiple communications, computing and
entertainment products and services. In order to perform these
functions, all such devices or platforms--;including personal
computers, PDAs, wireless phones and set-top boxes--;need to
utilize operating systems, whether installed in the device itself or
residing on Internet servers. By maintaining and expanding its
operating system monopoly across platforms, Microsoft can establish
its position as ``gatekeeper'' to all such forms of
communications, computing and entertainment services. And as
gatekeeper, Microsoft will be in a position to direct customers
using these platforms toward its services, to degrade or block
access to competitors' services, and to impose costs on those
competitors it cannot completely eliminate. By controlling all of
these communications gateways, Microsoft will not only preserve its
operating system monopoly against all serious threats, it will
substantially lessen competition in the provision of innovative new
``convergent'' services.
For example, competition is now growing to reach consumers,
through ``gateway'' devices such as PCs or television set-
top boxes, with broadband communications signals that can carry
everything from TV programming to Internet content to telephone
conversations. An estimated 10 million American homes may use such
devices next year and 25 million by 2006. See Byron Acohido,
Challenging Microsoft? It Could Take Moxi, USA Today, Jan. 16, 2002,
at B-;3. Microsoft has already announced that it is developing
an extension to Windows XP that will allow PCs to function in this
manner. Id.; Microsoft Unveils New Home PC Experiences with
``Freestyle'' and ``Mira'' (Jan. 7, 2002), at
www.Microsoft.com/presspass/Press/2002/Jan02/01. Unfettered by the
proposed settlement, Microsoft can thus use its illegal operating
system monopoly to become the literal communications gateway into
and out of the American home or office. It then will have enormous
power over the products and services consumers use to communicate
with each other, to do their work and to entertain themselves.
In this memorandum, SBC addresses the numerous ways in which the
proposed settlement fails to meet a paramount goal of relief in this
case: To ``pry open to competition'' in the PC operating
system market that Microsoft has dominated for over a decade by
using blatantly exclusionary tactics.
The following facts are now beyond dispute in this
proceeding'.
First, Microsoft's monopoly has been extraordinarily durable,
having prospered for over a decade (D.Ct. at 35), having
increased steadily to over a 95% share even during the litigation
(CA at 54; D.Ct. at 35), and having enjoyed the continuing
protection of significant barriers to entry. See CA at 54-;56
(``Because the applications barrier to entry protects a
dominant operating system irrespective of quality, it gives
Microsoft power to stave off even superior new rivals''); D.Ct.
at 36-;44, 61 (``Microsoft could significantly
restrict its investment in innovation and still not face a viable
alternative to Windows for several years . . . .
``).
Second, Microsoft's monopoly has created not only the power, but
also the incentive, to exclude competition: every technological
innovation that emerged to challenge Microsoft's dominance was met
with a successful strategy of anticompetitive exclusion. Microsoft
was able to ``extinguish,'' perhaps permanently, the two
greatest innovative threats to its dominance that arose in the
1990's--;Netscape and Java. CIS at 16-;17; see also CA at
76-;80 (``Microsoft's ultimate objective was to thwart
Java's [and Netscape's] threat to Microsoft's monopoly;'' it
adopted as strategic goals to ``kill cross-platform Java''
and interfere with the ability of Netscape's browser to interoperate
with Microsoft products); D.Ct. at 68-;77. So long
as Microsoft retains the power and incentive to exclude the
competitive threats of the 21st century, economic theory predicts,
and history demonstrates, that it will seek to evade any regulatory
barriers placed in its path. Thus, the prospect of innovation offers
no solace to restoring competition, only a sure target for
Microsoft's exclusionary conduct.
Third, Microsoft's incentive to engage in calculated predation
is so strong that it readily harms consumers and degrades its own
products to achieve anticompetitive exclusion. D.Ct. at 174
(finding that by commingling ``Microsoft has unjustifiably
jeopardized the stability and security of the operating
system''), 408-;12 (highlighting harm
inflicted upon consumers); CA at 62, 65 (affirming district court
findings of consumer harm). It is also revealed in a ``take no
prisoners'' approach in which deception, threats, attempts to
conspire and degradation of middleware connections were used to
stifle competition. CA at 73, 75-;77. Nothing in the
foreseeable future, much less in the monopoly maintenance record,
suggests that marketplace or technological developments alone will
suffice to curb Microsoft's market power, its incentive to exclude
and its proven ability and willingness to do so ruthlessly.
Finally, Microsoft's monopoly affects the country's most
powerful engine of national economic prosperity and
productivity--;the processing and communication of information.
Where monopolization has injured industries of comparable
importance, the future of competition has never before been
entrusted to illusory promises by the offending firm or to uncertain
marketplace developments, unprotected by judicial supervision from
recurrent acts of exclusion. See United States v. Am. Tel. &
Tel. Co., 552 F. Supp. 131,215-;17 (D.DC 1982), aff'd sub nom.
Maryland v. United States, 460 U.S. 1001 (1983)
(``AT&T'') (rejecting proposed consent decree and
ordering its modification based, in part, on the ``complexity
and magnitude'' of the decree and the decree's effect ``on
the largest corporation in the world ... the entire
telecommunications industry, the computer industry... and thus the
interests of literally millions of individuals'').
That is why in monopolization cases the law demands that relief
must decisively end the anticompetitive practices, prevent their
recurrence and extension into new markets, and restore competition.
``Antitrust relief should unfetter a market from
anticompetitive conduct and `pry open to competition a market
that has been closed by defendants' illegal
restraints.''' Ford Motor Co. v. United States, 405 U.S.
562, 577-;78 (1972) (citation omitted). If a decree does not
effectively pry a market open to competition, ``the Government
has won a lawsuit and lost a cause.'' Int'l Salt Co. v. United
States, 332 U.S. 392, 401 (1947). To restore competition, therefore,
the relief must take account of all the factors relevant to the
offense, including in particular the likely duration of the monopoly
power, which, of course, is the wellspring of the incentive as well
as the ability to exclude. See Ford Motor Co., 405 U.S. at 575
(affirming ten-year ban on Ford's manufacture of spark plugs;
prohibition was a ``necessary step toward the restoration of
the status quo ante'' in the market). The government has
repeatedly embraced the foregoing standards in this case (see,
.c.g., Govt. D.Ct. Memo. at 24; CIS at 3), but its proposed
settlement fails their purposes. The ,government has abandoned,
without explanation, injunctive relief that it urged upon the
District Court as essential to curb Microsoft's appetite for
anticompetitive conduct and has agreed to a decree filled with
loopholes. For example, although the
[[Page 28591]]
Court of Appeals found commingling of browser and operating system
code to be unlawful acts of monopoly maintenance, and the government
advocated that such commingling be prohibited as ``an
especially potent competitive weapon for Microsoft... to target
competing middleware threats,'' Gov't D.Ct. Reply Memo at 61,
the proposed settlement does not prohibit such conduct. Similarly,
although the Department of Justice Antitrust Division Manual
provides that the government ``should not negotiate any decree
of less than ten years' duration'' and the government in
this case objected to Microsoft's initial proposal for a four-year
decree because ``there is no sound justification for entering a
decree of shorter duration,'' the remedies in the proposed
settlement are to last only five years.
The government's retreat from established antitrust policy and
from its prior opposition to Microsoft's remedial proposals has
grave implications for a competitive economy and for SBC. Not only
is Microsoft allowed to repeat conduct, previously found
anticompetitive, to protect its operating system monopoly from
middleware sources of competition, but it is free to do so where the
courts have already recognized an even more powerful threat exists,
namely from the Internet. D.Ct. at 56, 59-;60
(cited with approval in CA at 79). Since Internet servers can
perform computing functions formerly accomplished only by PCs,
networks of servers and PCs that freely interoperate (or
``talk'' to each other)--;regardless of the type of
operating system software that they use--;are a platform for
applications not dependent on Windows. This means that the
combination of inexpensive computers or handheld devices (like a
``dumb'' PC. a cellphone, or a PDA) and smart server
networks connected to the Internet can break the monopoly power of
Microsoft's PC operating system by offering a server network
alternative that will work with any operating system and provide
more and better application choices at less cost. D.Ct. at
22-;27 (cited with approval in CA at 52),
56, 59-;60 (``[T]he rise of the Internet...
has fueled the growth of server-based computing, middleware, and
open-source software development. Working together, these nascent
paradigms could oust the PC operating system from its position as
the primary platform for applications development and the main
interface between users and their computers.'').
Yet nothing in the government's settlement prevents Microsoft
from turning an open Internet into a closed Microsoft environment
simply by doing two things: (1) commingling its browser, Internet
Explorer (``IE''), with its Windows operating system; and
(2) changing the protocol its browser uses to ``talk'' to
Internet servers to an undisclosed proprietary standard that will
only work effectively with Microsoft servers. Because of the
dominance of Microsoft's browser (currently 91% of all browser
usage), all web servers would then be forced to have a Microsoft
server operating system in order for the servers, and the web sites
they host, to be accessible to the vast majority of users. In turn,
all consumers and businesses that wish to access the Internet will
be forced to purchase a Windows operating system in order to utilize
Microsoft's browser. Nothing in the decree prevents this scenario,
because Microsoft is free to use its illegally maintained monopoly
power to force servers to interoperate only with Windows, such that
Microsoft becomes the Internet gatekeeper of a once open and
competitive system. Microsoft's operating system monopoly would
thereby become still more powerful and durable, as another threat to
its dominance is destroyed. In this way, the applications barrier to
entry that protects the Windows monopoly will extend to the
Internet.
The reality of this threat for the future competitiveness of
Internet-based businesses has a direct bearing on a wide range of
Microsoft's potential and actual competitors, including SBC. Through
its affiliates, SBC provides Internet access and Internet services
to customers. SBC is currently developing several new Internet-based
businesses, most importantly its Unified Messaging Service
(``UMS''), which will compete directly with specific
Microsoft products and services. UMS will allow retrieval of voice,
e-mail and fax messages from anywhere in the world, using any
computer or device running on any operating system. The proposed
settlement, however, allows Microsoft to make SBC's UMS product
significantly less competitive by taking the two simple steps
outlined above. In these circumstances, only Microsoft server
operating systems would be interoperable with the vast majority of
other devices that access the Internet, and Microsoft would be able
to use its server control to discriminate against its competitors.
As this example shows, the omissions and loopholes in the
proposed settlement are of no small importance; they have drastic
consequences for a competitive economy. So too does the decision to
limit the settlement to only five years. The trial court recognized
in findings sustained by the Court of Appeals that competitive
alternatives to the Microsoft operating system, such as web portals,
servers and middleware, take years to develop as viable threats, yet
the proposed decree ends almost as soon as it starts--;in only
five years overall, with some provisions in effect for only four
years. No sensible competitor would invest in technology
improvements to the maximum extent necessary to challenge
Microsoft--;innovations that require years to succeed absent
predation--;when the decree is neither strong enough, nor long
enough, to protect them. Yet the government breaks with its own
policy of requiring decrees with ten-year terms, despite the fact
that Microsoft's monopoly has existed for more than a decade and its
unlawful conduct has spanned a period nearly as long.
Equally important, there is nothing in the decree to jump start
competition, much less to ``pry open'' the monopolized
market to give consumers the benefit of competition that would have
existed from the likes of Netscape and Java had Microsoft's
exclusionary conduct not ``extinguished'' them. See Schine
Chain Theaters, Inc. v. United States, 334 U.S. 110, 128 (1948) (an
injunction against future violations is inadequate when it allows
the monopolist to retain its ``unlawfully built
empires''). Under the Tunney Act, the ``public
interest,'' see 15 U.S.C. 16(e), is not served by
a settlement that allows a monopolist to pursue conduct already
adjudicated illegal, that leaves open easy escape routes from the
proposed decree's proscriptions, and that utterly fails to restore
competition to the monopolized market.
When, as here, there is an adjudicated record of serious
competitive harm (monopolization) and wrongdoing (anticompetitive
exclusion), the responsibility to protect the public from an
inadequate settlement is high, and a reviewing court has broad power
to do so. AT&T, 552 F. Supp. at 151-;53. As the District
Court has said, ``The Supreme Court has vested this court with
large discretion to fashion appropriate restraints both to avoid a
recurrence of the violation and to eliminate its
consequences.'' United States v. Microsoft Corp., Civ. Nos.
98-;1232, 98-;1233 (CKK), Transcript of Proceedings at 9
(Sept. 28, 2001).
For the reasons set forth below, approval of the proposed decree
cannot be squared with ten years of government litigation that
culminated in resounding appellate holdings of major antitrust
offenses. The fact that adverse antitrust consequences will result
is clear from the face of the proposed settlement, as well as by
comparison to the injunctive provisions defended by the government
in its earlier proposed litigated judgment. In fact, adoption of
this proposed settlement would be worse than no decree at all, for
its negotiated omissions and concessions allow conduct found illegal
in the past to continue--;such as commingling of code--;and
thus would appear to prevent even the government from attacking such
decree-sanctioned behavior during its term. Such ambiguity
surrounding the government's enforcement intentions is in itself
affirmatively harmful to the public interest.
II. A MONOP0LIZATION REMEDY MUST RE TAILORED TO THE NATURE AND
SCOPE OF THE OFFENSE, THE DURABILITY OF THE UNLAWFUL MONOPOLY, THE
IMPORTANCE OF RESTORING COMPETITION TO THE AFFECTED MARKET AND THE
LIKELIHOOD OF RECURRING ACTS OF MONOPOLIZATION
A. The Court Of Appeals Sustained A Finding Of Successful And
Longstanding Monopolization In A Crucial Technology Industry
The proposed settlement in this case must be evaluated in light
of the Court of Appeals' affirmance of the District Court's
conclusion, supported by an overwhelming factual record, that
Microsoft is guilty of a panoply of illegal activities to maintain
and extend its monopoly in the market for Intel-compatible PC
operating systems. Microsoft's conduct inflicted significant harm on
consumers and competition in violation of Section 2 of the Sherman
Act. CA at 50-;80.
1. Microsoft Has Monopolized A Critical Industry
Microsoft is the world's largest supplier of computer software
for PCs and, in particular, dominates the market for Intel-
compatible PC
[[Page 28592]]
operating systems software world-wide. Although it has the second-
largest market capitalization among American companies, Microsoft's
importance extends beyond its financial success, because it is a
linchpin of the computer industry (including hardware, peripherals,
software and data services), and the computer industry is critical
to the functioning of a competitive American economy. See, e.g.,
Henderson Decl. 87-;98; Romer Decl. 17.
2. Microsoft's Monopoly Has Endured For More Than A Decade
Microsoft's operating systems monopoly is an enduring one,
persisting for over a decade despite what the Court of Appeals has
described as a ``technologically dynamic market.'' CA at
49. Over that same period, the government has been forced to spend
resources on a continuous basis to investigate, and then to
prosecute, Microsoft for its illegal conduct. The FTC began
investigating Microsoft's acquisition and maintenance of monopoly
power in the operating systems market in 1990, although it did not
bring charges against the company. United States v. Microsoft Corp.,
56 F.3d at 1448, 1458 (DC Cir. 1995). Using the FTC's extensive
investigation file as a starting point, the Antitrust Division of
the Justice Department initiated its own investigation, and in July
1994 filed a civil complaint under Sections 1 and 2 of the Sherman
Act, charging, inter alia, that Microsoft unlawfully maintained a
monopoly of operating systems for Intel-compatible PCs. Id. That
case was settled by a consent decree, thereby avoiding trial on the
merits.
Three years later, the Justice Department filed a civil contempt
action against Microsoft on the ground that it had violated the
decree. On appeal from the grant of a preliminary injunction, the
Court of Appeals ruled that Microsoft had not violated the relevant
provision of the consent decree, but reserved the question of
whether the company's bundling of Internet Explorer with the Windows
operating system violated the antitrust laws. United States v.
Microsoft Corp., 147 F.3d 935,950 n.14 (DC Cir. 1998). The complaint
that gives rise to the instant proceeding was filed in May 1998 by
the Justice Department and a group of State plaintiffs, again
alleging, inter alia, unlawful maintenance of a monopoly in the PC
operating system market in violation of Sherman Act 2. CA
at 47.
The Court of Appeals affirmed the District Court's finding that
Microsoft's Windows operating system accounts for over 95% of the
Intel-compatible PC operating system market. CA at 54. As the
District Court found:
Microsoft possesses a dominant, persistent, and increasing share
of the worldwide market for Intel-compatible PC operating systems.
Every year for the last decade, Microsoft's share of the market ...
has stood above 90 percent. For the last couple of years, the figure
has been at least 95 percent, and analysts predict that the share
will climb even higher over the next few years. Even if Apple's Mac
OS were included in the relevant market, Microsoft's share would
still stand well above 80 percent.
D.Ct. at 35.\1\
---------------------------------------------------------------------------
\1\As recently as January 2002, Microsoft controlled over
96% of the entire PC operating system market, and Apple's Macintosh
operating system had only a 2% share. Is Apple Out of the Running in
the Operating Systems War? (Jan. 8, 2002), at http://
www.websidestory.com/cgi-binwss.cgi? corporate
&news&press_l_163.
---------------------------------------------------------------------------
3. Microsoft's Increasing Monopoly Power Is Protected By
Significant Barriers To Entry
The Court of Appeals held that not only was Microsoft's
operating system monopoly virtually complete as measured by market
share, but also that the monopoly's increasing power and scope
derives from a structural barrier--;the ``applications
barrier to entry''--;that protects the company's future
monopoly position even as against superior rivals. The Court held
that this barrier to entry
stems from two characteristics of the software market: (1) most
consumers prefer operating systems for which a large number of
applications have already been written; and (2) most developers
prefer to write for operating systems that already have a
substantial consumer base. This ``chicken-and-egg''
situation ensures that applications will continue to be written for
the already dominant Windows, which in turn ensures that consumers
will continue to prefer it over other operating systems.
CA at 55 (citations omitted). The Court of Appeals went on to
hold that even if Windows may have gained its initial dominance
through superior foresight or quality, Microsoft had maintained its
position through means other than competition on the merits.
``Because the applications barrier to entry protects a dominant
operating system irrespective of quality, it gives Microsoft power
to stave off even superior new rivals.'' CA at 56.
4. Microsoft's Monopoly Has Self-Perpetuating Incentives
The Court of Appeals affirmed the District Court's findings
regarding a variety of anticompetitive acts by Microsoft that were
designed to maintain its monopoly by preventing the effective
distribution and use of middleware products--;including
Netscape's ``Navigator'' browser and the Java cross-
platform technologies--;that might threaten the Windows
operating system monopoly. The Court of Appeals noted with approval
the District Court's conclusion that Microsoft's monopoly gives the
firm incentives to perpetuate the monopoly by a pattern of
exclusionary conduct. CA at 58. As the District Court concluded,
``over the past several years, Microsoft has comported itself
in a way that could only be consistent with rational behavior for a
profit-maximizing firm if the firm knew that it possessed monopoly
power, and if it was motivated by a desire to preserve the barrier
to entry protecting that power.'' D.Ct. CL at 37.
5. Microsoft Has Shown Itself Able And Willing To Extinguish
Competitive Threats As Fast As They Emerge In A Rapidly Changing
Technological Environment, And Willing To Harm Consumers And Degrade
Its Own Products In Order To Exclude Competitors From The Market
In its successful efforts to thwart Netscape and Java, Microsoft
demonstrated its ability to extinguish competitive threats to its
monopoly as fast as they emerged in a rapidly changing technological
environment. Microsoft's conduct also evidenced a remarkable
willingness to hurt consumers and degrade its own products where
necessary to accomplish the exclusion of competitive threats to its
dominance.
Both Netscape and Java threatened to facilitate competition in
operating systems by permitting software applications developers to
write programs for the application programming interfaces (APIs)
exposed by these middleware products, which in turn were capable of
running not only on Windows, but on other operating systems. If such
middleware were permitted to thrive, such ``cross-
platform'' applications would have the potential to overcome
the applications barrier to entry upon which Microsoft's operating
system monopoly rests. CA at 53, 60.
The Court of Appeals upheld the District Court's findings and
conclusions that Microsoft engaged in the following unlawful conduct
in violation of Section 2 of the Sherman Act for the purpose of
maintaining its PC operating system monopoly:
a. License Restrictions
Microsoft prevented OEMs from removing visible means of user
access to Microsoft's browser, IE, which thwarted the distribution
of rival browsers, primarily Netscape Navigator. CA at 59-;61.
Microsoft prohibited OEMs from modifying the initial boot
sequence, from adding icons or folders different in size or shape
from those supplied by Microsoft, and from using the desktop to
promote rival products, thereby preventing OEMs from promoting
either browsers or Internet access providers that competed with
Microsoft's own Internet access service and that often used
Navigator rather than IE. Microsoft's anticompetitive conduct
reduced consumer choice for the sole purpose of thwarting a
middleware threat to Microsoft's monopoly. CA at 61-;64.
b. Commingling Source Code
By placing computer code specific to the web browsing function
in the same computer program ``files'' as code supplying
operating system functions (i.e., by ``commingling'' the
computer code), Microsoft ensured that the deletion of files
containing browsing-specific routines would also delete vital
operating system routines and cripple Windows' performance. By
preventing OEMs from deleting IE, Microsoft deterred OEMs from pre-
installing a second browser because doing so would increase the
OEM's product and support costs. Had removal of IE been an option,
OEMs could have decided to pre-install Navigator. CA at 66. This
technological binding of IE to Windows not only reduced consumer
choice in the browser market, but also forced consumers to buy a
``loaded'' and arguably slower operating system. The Court
of Appeals found that this had no purpose other than to maintain
Microsoft's monopoly.
When Microsoft modified Windows 95 to produce the Windows 98
operating system, it took IE out of the Add/Remove Programs utility,
which prevented the removal of IE from the operating system. This
had the effect of further curtailing end-user control
[[Page 28593]]
over the desktop, and reducing usage of rival browser products for
the protection of its operating system monopoly. CA at 65.
c. Exclusionary Agreements
To extinguish the competitive threat posed to Microsoft's
monopoly by Internet, Access Providers (lAPs) and online
services--;the other major channel through which browsers could
be distributed to consumers--;Microsoft entered into agreements
with 14 of the 15 largest IAPs in North America under which the IAPs
offered their subscribers IE as either the default browser or the
only browser. CA at 68.
Microsoft agreed with AOL (the largest IAP) to place the AOL
icon in the online service folder on the Windows desktop, in return
for which AOL was forced to agree not to promote any non-IE browser,
or software using a non-IE browser, except at the customer's
request, and even then not to supply more than 15% of its
subscribers with a browser other than IE. Because AOL accounted for
a substantial portion of all existing Internet access subscriptions,
these provisions were highly exclusionary. CA at 70-;71.
During the period 199%9, Microsoft made dozens of ``First
Wave'' agreements with Internet Software Vendors
(``ISVs''), giving them free licenses to bundle IE with
their software and preferential support in the form of access to
technical information and the right to use Microsoft seals of
approval. In exchange, the ISVs agreed to use IE as the default
browsing software for any software that they developed with a
hypertext-based user interface and to use Microsoft's ``HTML
Help,'' accessible only with IE, to implement their
applications' help systems. The effect of those deals was to
ensure that many of the most popular Internet applications relied on
browsing technologies found only in Windows, which increased the
likelihood that millions of consumers using applications designed by
those ISVs would use IE instead of Navigator. The agreements with
ISVs further foreclosed rival browser distribution and curtailed the
middleware threat to the Windows monopoly. CA at 71-;72.
d. Actual And Attempted Coercion And Retaliation To Exclude
Competitors
Microsoft coerced Apple to drop Navigator as the standard
browser installed on its PCs, and to substitute IE as the default
browser on its Macintosh operating system. Microsoft threatened to
cut off production of its ``Office'' business productivity
software for Apple PCs (90% of Apple Office suite users relied on
the Microsoft version of Office designed for the Macintosh operating
system), an action that had no purpose but to maintain Microsoft's
operating system monopoly while hurting consumers. Apple was forced
to agree to bundle the most current version of IE to the Macintosh
operating system for as long as Microsoft continued to support Mac
Office, and promised not to promote Navigator on its desktop. CA at
72-;74.
Microsoft retaliated against Netscape when Netscape refused to
capitulate to Microsoft's demands that it forgo development of
Navigator technology as a middleware platform. Microsoft sought to
convince Netscape to enter into an illegal market division agreement
whereby Microsoft would treat Netscape as a ``preferred
ISV'' in exchange for Netscape developing Navigator to rely on
Microsoft's platform-level Internet technologies. (At the time of
Microsoft's proposal, Navigator was the only browser product with a
significant share of the market and the potential to weaken the
applications barrier to entry.) When Netscape refused this unlawful
arrangement, Microsoft punished Netscape by delaying disclosure of
the technical information needed to make Navigator interoperable
with Windows, which forced Netscape to postpone release of its new
browser. As a result, Netscape was excluded from most of the 1995
holiday selling season. D.Ct. at 79-;91.
e. Efforts To Subvert Sun-compliant Java Technologies
Sun Microsystems created Java,\2\ a type of middleware that
would support all applications regardless of the operating system
they were written for. CA at 74. Programs calling upon Java's APIs
will run on any computer that itself is configured for Java; thus,
Java enabled software developers to write applications programs that
could be run on different operating systems with relative ease. In
May 1995, Netscape agreed with Sun to distribute Java with every
copy of Navigator, which at that time was the dominant browser.
Microsoft violated 2 in three separate ways in a
successful effort to extinguish Java as a competing middleware
platform:
---------------------------------------------------------------------------
\2\When this document refers to ``Java''
without any adjectives or other modifiers, it refers to Sun
Microsystems' product.
---------------------------------------------------------------------------
``First Wave'' Agreements: The First Wave Agreements
were contracts between Microsoft and ISVs for the distribution of
Microsoft's proprietary version of the Java Virtual Machine
(``JVM''). The agreements required developers to make
Microsoft's JVM the default in the programs they developed, in
exchange for Microsoft's technical support and other inducements. CA
at 75-;76.
Deception of Java Developers: Microsoft offered software
developers various development tools that purportedly would assist
ISVs in designing Java applications, but concealed the fact that
aspects of the code generated by the design tools could only be
executed properly by Microsoft's JVM. The result was that many
developers, relying on Microsoft's public commitment to cooperate
with Sun, unwittingly used the programming tools to write Java
applications that ran only on Windows, and not other platforms.
Microsoft maintained this deception in order to ``kill cross-
platform Java by grow[ing] the polluted Java market.'' CA at
76-;77. This conduct injured consumers by fraudulently inducing
development of corrupted versions of otherwise successful cross-
platform middleware, for the sole purpose of protecting the
Microsoft monopoly. Id.
Microsoft's Threat to Intel: Intel and Sun had entered into an
agreement to create a high-performance, Windows-compatible JVM, and
by 1996, Intel had developed a JVM that complied with Sun's cross-
platform standards. Starting in 1995, Microsoft's senior management
repeatedly requested that Intel stop its cooperation with Sun, and
ultimately threatened Intel that if it did not abandon its support
of Sun- compliant Java, Microsoft would begin supporting Intel
competitors and refuse to distribute Intel technologies bundled with
Windows. Intel finally capitulated in 1997. CA at 77-;78.
B. The Remedy In This Section 2 Case Must Be Broad And
Prophylactic, To Prevent Microsoft From Denying Consumers The
Benefit Of Competition By Retaining Illegally-Maintained Monopoly
Power
1. Purpose Of Relief
As the government acknowledges in the Competitive Impact
Statement, appropriate injunctive relief here must accomplish three
things: ``(1) end the unlawful conduct; (2) avoid a recurrence
of the violation' and others like it; and (3) undo its
anticompetitive consequences.'' CIS at 24 (citing Nat'l Soc'y
of Prof'l Eng'rs v. United States, 435 U.S. 679, 697 (1978); United
States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 326
(1961); Int'l Salt Co., 332 U.S. at 401); CA at 107. See also Gov't
D.Ct. Memo at 24 (``Permanent injunctive relief ordered in a
Sherman Act case must be both forward-looking and remedial. The
decree must (i) end the violation, (ii) `avoid a recurrence of
the violation' and others like it and (iii) restore
competition to the market.''). Any remedy must be broad in
scope and prophylactic in nature so that competition is restored and
Microsoft is effectively precluded from further exercise of its
monopoly power, even as new products are developed and circumstances
in the market change.
a. End Anticompetitive Practices And Prevent Their Recurrence
Any settlement here must be structured to end anticompetitive
practices and not merely to prevent repetition of the same illegal
conduct. As the Court of Appeals pointedly instructed:
[A] remedies decree... must seek to ``unfetter a market
from anti- competitive conduct .... terminate the illegal monopoly,
deny to the defendant the fruits of its statutory violation, and
ensure that there remain no practices likely to result in
monopolization in the future.''
CA at 103 (citations omitted) (quoting Ford Motor Co., 405 U.S.
562; United States v. United Shoe Mach. Corp., 391 U.S. 244 (1968)).
In the proceedings on remand, the District Court has already
recognized that any remedy, in order to be adequate, must go beyond
merely prohibiting the conduct in which Microsoft has previously
engaged:
The Supreme Court long ago stated that it's entirely
appropriate for a district court to order a remedy which goes beyond
a simple prescription against the precise conduct previously pursued
.... [T]he remedy may range broadly through the practices connected
with the acts actually found to be illegal. The Supreme Court has
vested this court with large discretion to fashion appropriate
restraints both to avoid a recurrence of the violation and to
eliminate its consequences.
Microsoft, Transcript of Proceedings at 9 (paraphrasing Nat'l
Soc'y of Prof'l Eng'rs, 435 U.S. at 697; and United States v. U.S.
Gypsum Co., 340 U.S. 76, 88-;89 (1950)).
[[Page 28594]]
The public interest is not served merely by eliminating past
anticompetitive practices; the remedy must eliminate the future
recurrence of illegal conduct:
[T]he end to be served is not punishment of past transgression,
nor is it merely to end specific illegal practices. A public
interest served by such civil suits is that they effectively pry
open to competition a market that has been closed by
defendants' illegal restraints. If [the] decree accomplishes
less than that, the Government has won a lawsuit and lost a cause.
Int'l Salt Co., 332 U.S. at 401 (emphasis added).
A trial court upon a finding of... a monopoly has the duty to
compel action... that will, so far as practicable, cure the ill
effects of the illegal conduct, and assure the public freedom from
its continuance ....
Acts entirely proper when viewed alone may be prohibited. U.S.
Gypsum Co., 340 U.S. at 90 (citations omitted); see also United Shoe
Mach. Corp., 391 U.S. at 252 (relief should ``render impotent
the monopoly''); Nat'l Soc'y of Prof'l Engn'rs, 435 U.S. at 697
(``the District Court was empowered to fashion appropriate
restraints on the Society's future activities to avoid a recurrence
of the violation and eliminate its consequences'').
In this case, the government has recognized the need to go
beyond enjoining current violations to assure that Microsoft's
violations do not recur. See Gov't D.Ct. Memo at 24
(``Forbidding the continuance of the violation--;here, for
example, the anticompetitive bundling of Internet Explorer with the
Windows operating system--;is necessary but not sufficient to
rectify the harm caused and threatened by Microsoft's illegal
conduct.'').
b. Restore Competition (Deny The Fruits Of Wrongdoing)
As the government has acknowledged, ``[r]estoring
competition is the `key to the whole question of an antitrust
remedy.''' CIS at 24 (quoting E.I. du Pont de Nemours
& Co., 366 U.S. at 697); see also U.S. Gypsum, 340 U.S. at 90
(``The conspirators should, so far as practicable, be denied
future benefits from their forbidden conduct.''); United States
v. Grinnell Corp., 384 U.S. 563,577 (1966) (``We start from the
premise that adequate relief in a monopolization case should...
deprive the defendants of any of the benefits of the illegal
conduct, and break up or render impotent the monopoly power found to
be in violation of the Act.''); CA at 103 (a remedies decree
must ``deny to the defendant the fruits of its statutory
violation'') (citations omitted). As the Supreme Court put it
in a holding that is particularly cogent here:
[A]n injunction against future violations is not adequate to
protect the public interest. If all that was done was to forbid a
repetition of the illegal conduct, those who had unlawfully built
their empires could preserve them intact. They could retain the full
dividends of their monopolistic practices and profit from the
unlawful restraint of trade which they had inflicted on competitors.
Such a course would make enforcement of the Act a futile thing
unless, perchance, the United States moved in at the incipient
stages of the unlawful project.
Schine Chain Theaters, Inc., 334 U.S. at 128.
2. The Law Requires Effective Measures To Accomplish These
Results
a. Relief Must Neutralize Monopoly Power At Its Source And
Eliminate The Monopolist's Incentive To Exclude Competitors From The
Market
A decree must ``break up or render impotent the monopoly
power found to be in violation of the Act.'' Grinnell Corp.,
384 U.S. at 577. It must ``leave the defendant without the
ability to resume the actions which constituted the antitrust
violations in the first place.'' AT&T, 552 F. Supp. at 150.
b. Relief Must Anticipate New Forms Of Exclusion, Commensurate
With The Evidence Of Microsoft's Incentive To Exclude And Its
Willingness To Do So At The Expense Of Consumers And Its Own Product
Quality
Because an antitrust remedy, in order to be adequate, must
neutralize the monopolist's power to resume the action constituting
the adjudicated violation, any remedy ``must effectively
foreclose the possibility that antitrust violations will occur or
recur.'' Id. at 150. Again, the Supreme Court has given
instruction that is directly relevant here:
When the purpose to restrain trade appears from a clear
violation of law, it is not necessary that all of the untraveled
roads to that end be left open and that only the worn one be closed.
The usual ways to the prohibited goal may be blocked against the
proven transgressor and the burden put upon him to bring any proper
claims for relief to the court's attention.
Int'l Salt Co., 332 U.S. at 400. As the District Court has
recognized, even practices not found to be unlawful should be
prohibited where necessary to avoid recurrence of monopolization.
AT&T, 552 F. Supp. at 150 n.80 (citing United States v. United
Shoe Mach. Corp., 110 F. Supp. 295,346-;47 (D. Mass. 1953),
aff'd, 347 U.S. 521 (1954)). Similarly, the court must impose
additional restraints to allow development of new competition in the
relevant market. Id. (citing Ford Motor Co., 405 U.S. at 575).
Given the record in this case, the remedy must anticipate new
forms of exclusion such that, in view of Microsoft's incentive to
exclude and demonstrated willingness to do so, the company may not
further restrain trade illegally and is prevented from repeating its
past unlawful practices in new contexts.
c. Relief Must Prevent Regulatory (Decree) Evasion
Where the monopoly in question is as powerful and persistent as
that maintained over the last decade by Microsoft, there is a real
danger that the monopolist will evade the particular provisions of
any consent decree that is entered. In order to cope with the threat
of regulatory evasion, antitrust judgments must contain broad
proscriptions of anticompetitive conduct that will, by their
generality, cover new forms of exclusion. See, E.I. du Pont, 366,
U.S. at 1254 (An ``injunction can hardly be detailed enough to
cover in advance all the many fashions in which improper influence
may manifest itself.''); AT&T, 552 F. Supp. at 167
(approving consent decree ordering divestiture, preclusion from
specific markets, and compulsory, royalty-free licensing) (``it
is unlikely that, realistically, an injunction could be drafted that
would be both sufficiently detailed to bar specific anticompetitive
conduct yet sufficiently broad to prevent the various conceivable
kinds of behavior that AT&T might employ in the future'');
Zenith Radio Corp. v. Hazeltine Research, Inc. 395 U.S. 100, 132
(1969) (court may exercise its ``broad power to restrain acts
which are of the same type or class as the unlawful acts which the
court has found to be committed or whose commission in the future,
unless enjoined, may fairly be anticipated from the defendant's
conduct in the past''); CA at 103 (court must ``ensure
that there remain no practices likely to result in monopolization in
the future''). The ``broad power'' the Court has to
fashion an effective remedy includes the authority to prohibit
exploitation of monopoly power in any manner and to order provisions
designed to create and foster new competition, including the
disclosure of proprietary information, mandatory licensing,
exclusive dealing bans and many other remedies. Gov't. D.Ct. Memo at
26 (citing United States v. Crescent Amusement Co., 323 U.S. 173
(1944); Hartford-Empire Co. v. United States, 323 U.S. 386 (1945);
United States v. Glaxo Group Ltd., 410 U.S. 52 (1973); Int'l Salt
Co., 332 U.S. 392; Ford Motor Co., 405 U.S. at 572).
In order to prevent evasion of antitrust proscriptions put in
place by a consent decree, courts routinely retain jurisdiction in
order to modify decrees, resolve disputes, and ensure there is a
forum for timely adjudicating whether defendants are in compliance.
See, e.g., Int'l Salt Co., 332 U.S. at 401-;02; Otter Tail
Power Co. v. United States, 410 U.S. 366, 381-;82 (1973);
United Shoe Mach. Corp., 391 U.S. at 251-;52; AT&T, 552 F.
Supp. at 215-;17 (ordering modification of proposed consent
decree to include provisions relating to Court's continuing ability
to enforce decree).
d. Relief Must Be Of Sufficient Duration To ``Pry
Open'' The Monopolized Market By Allowing Competitive Products
To Take Root
i. It Takes Years For Competitive Alternatives--;Web
Portals, Servers And Middleware--;To Develop, Even Assuming Lack
Of Obstruction
The applications barrier to entry that Microsoft enjoys through
its operating system monopoly will, as the District Court found (and
the Court of Appeals agreed), make it extraordinarily difficult for
a new operating system to attract enough developers and consumers to
be a viable alternative to Windows in any reasonable time frame.
D.Ct. at 30-;31; D.Ct. CL at 36; CA at 54-;56.
The overwhelming majority of consumers will only use Windows because
there are already a large variety of applications written for that
operating system. Given that it is expensive to port applications
from one operating system to another, software developers will
generally write applications only for the operating system that is
used by the dominant share of PC users.
Software developers and ISPs are now forced, given the economics
of the industry, to use Windows, an operating system that
[[Page 28595]]
they would not necessarily choose, but that is virtually the sole
conduit available to deliver their product to the end-user. Given
these circumstances, ``it remains to be seen whether server or
middleware-based development will flourish at all.'' D.Ct. at
32.
In order to allow alternative operating systems to develop, the
public interest demands a decree that will ``pry open to
competition a market that [is] closed'' by the enormous
applications barrier to entry and by Microsoft's continuous course
of illegal conduct. See Int'l Salt Co., 332 U.S. at 401. Given the
time necessary for a competitive operating system or middleware
product to overcome the applications barrier to entry (if it is
possible at all), any sustainable decree must assure consumers,
programmers and potential competitors of a lengthy time frame in
which to develop new products that can compete with Windows. Without
an adequate time frame for competing products to take hold,
consumers will be unwilling to scrap the investment in applications,
training, and hardware that they have already made in Windows.
ii. Software Developers And Other ``Investors'' Need
Confidence That The Decree Will Provide Protection Long Enough To
Give Their Investments A Fair Chance To Be Viable
Without a decree that is broad enough to ensure that Microsoft
does not continue to benefit from its past practices and erect new
barriers to market entry, the very purpose of antitrust relief in
monopolization cases will be thwarted. Without a strong and long-
lasting decree, Microsoft's entrenched dominance and the threat of
further exclusionary conduct will preclude entrepreneurs and other
innovators from improving products and services. As the government
has acknowledged, ``an injunction which simply bars the precise
illegal conduct proven at trial would leave the defendant with the
full dividends of [its] monopolistic practices and profit from the
unlawful restraints of trade which [it] has inflicted on
competitors.'' Gov't D.Ct. Reply Memo at 10 (quoting Schine
Chain Theaters, 334 U.S. at 128 (internal quotation marks omitted)).
If the decree leaves any room for doubt whether Microsoft will
retain its freedom and power to exclude competitors, then software
developers will, in their economic self-interest, continue what they
have been doing for years--;writing applications that operate
solely on Microsoft's platform--;thereby perpetuating the very
monopoly that this case has found to be illegal. Such a result
violates the fundamental tenet that an antitrust remedy must
effectively ``restore future freedom of trade.'' See U.S.
Gypsum, 340 U.S. at 90 (reversing an injunction limited to sale of
gypsum board in Eastern United States and directing entry of
injunction covering all gypsum products throughout the country
because the ``relief, to be effective, must go beyond the
narrow limits of the violation''); see also Glaxo Group Ltd.,
410 U.S. at 64 (ordering compulsory patent licensing on appeal where
necessary to assure ``the public freedom from... continuance of
the illegal conduct'').
Rather than being narrowly drawn, the remedy in this case must
be broad, prophylactic, flexible and forward-looking in order to
provide competition a safe harbor from Microsoft's exclusionary
power.
C. The Tunney Act Requires Courts To Reject Seriously Deficient
Decrees
Pursuant to the Tunney Act, 15 U.S.C. 16, in
evaluating an antitrust settlement, a court may not ``rubber
stamp'' a proposed consent decree, but must instead ``make
an independent determination as to whether or not entry of a
proposed consent decree [is] in the public interest.''
Microsoft Corp., 56 F.3d at 1458 (quoting S. Rep. No. 298, 93d
Cong., 1st Sess. 5 (1973)); accord AT&T, 552 F. Supp. at 149
& n.74.\3\
---------------------------------------------------------------------------
\3\The provisions of the Tunney Act allow the Court to
consider a wide variety of factors in determining whether a consent
decree is in the public interest, including: (1) the competitive
impact of such judgment, including termination of alleged
violations, provisions of enforcement and modification, duration of
relief sought, anticipated effects of alternative remedies actually
considered, and any other considerations bearing upon the adequacy
of such judgment; (2) the impact of entry of such judgment upon the
public generally and individuals alleging specific injury from the
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trial. 15 U.S.C. 16(e)(1)-;(2).
---------------------------------------------------------------------------
In determining whether the consent decree is in the public
interest, the Court must begin by defining the public interest in
accordance with the antitrust laws, AT&T, 552 F. Supp. at 149
(citing S.Rep. No. 93-;298 at 3; H.R. Rep. No. 93-;1463
11-;12), and ensure that the provisions of the decree will
``preserve free and unfettered competition as the rule of
trade.'' Id. (citing N. Pac. Ry. v. United States, 365 U.S. 1
(1958)). The consent decree's provisions must ``break up or
render impotent the monopoly power found to be in violation of the
Act.'' Id. at 150 (quoting Grinnell Corp., 384 U.S. at 577) and
``must leave the defendant without the ability to resume the
actions which constituted the antitrust violation in the first
place,'' id. Not only must the decree remedy past violations,
``it must also effectively foreclose the possibility that
antitrust violations will occur or recur.'' Id.; see also id.
at 151 (``[I]t does not follow that courts must unquestionably
accept a proffered decree as long as it somehow, and however
inadequately, deals with the antitrust and other public policy
problems implicated in the lawsuit.'').
In its first decision involving Microsoft, the Court of Appeals
recognized that a more deferential review standard is appropriate
under the Tunney Act in cases where there has been no trial and
hence ``there are no findings that the defendant has actually
engaged in illegal practices.'' Microsoft Corp., 56 F.3d at
1460-;61. It follows, therefore, that where there are express
findings based on a full trial record ``that the defendant has
actually engaged in illegal practices,'' id., a more intensive
Tunney Act review is required. Accord AT&T, 552 F. Supp. at 152.
In the instant case, there have been both a lengthy trial on the
merits and exhaustive findings of illegal monopoly maintenance by
Microsoft--;findings that the Court of Appeals expressly
affirmed. Thus, unlike in more routine Tunney Act proceedings
involving settlements without adjudicated findings of liability, the
proposed consent decree in this case is subject to a more searching
standard of review by the trial court. See also U.S. Gypsum Co., 340
U.S. at 89 (``[C]ourts should give weight to the fact of
conviction as well as the circumstances under which the illegal acts
occur. Acts in disregard of law call for repression by sterner
measures than where the steps could reasonably have been thought
permissible.'').
The AT&T case provides strong support for applying a higher
degree of scrutiny in this case than in the typical Tunney Act
proceeding. In AT&T, while noting that ordinarily a degree of
deference to the Department of Justice's view that a settlement is
in the public interest is appropriate, the District Court held that
such deference was not warranted where the court had heard
``what probably amounts to well over ninety percent of the
parties' evidence both quantitatively and qualitatively, as
well as all of [the parties'] legal arguments.'' 552 F. Supp.
at 152. The District Court thus concluded that it was ``in a
far better position than are the courts in the usual consent decree
cases to evaluate the specific details of the settlement.'' Id.
The Court of Appeals, in its first Microsoft opinion, embraced this
distinction and specifically contrasted the AT&T consent decree
proceeding with the first Microsoft decree, which was presented
before any evidence had been taken. See Microsoft Corp., 56 F.3d at
1461.
The circumstances now justify a searching and demanding review
of whether the decree is in the public interest. The settlement here
is not before the Court ``in the first instance,'' or even
with ``ninety percent of the parties'' evidence''
presented (as in AT&T,) but rather after a full trial on the
merits and multiple findings that Microsoft violated the Sherman
Act. The District Court now has before it all of the trial evidence,
as well as Findings of Fact and Conclusions of Law, affirmed by the
Court of Appeals, regarding the relevant market and Microsoft's
illegal, anticompetitive conduct. The Court may therefore make a
fully informed and independent determination concerning whether the
settlement is truly in the public interest.
As in AT&T, close scrutiny of the settlement is also
necessary because of its importance to the national economy. In
refusing to narrow the scrutiny given the consent decree, the
District Court in AT&T noted that given the ``potential
impact of the proposed decree on a vast and crucial sector of the
economy and on such general public interest as the cost and
availability of local telephone service, the technological
development of a vital part of the national economy, national
defense, and foreign trade, the Court would be derelict in its duty
if it adopted a narrow approach to its public interest review
responsibilities.'' AT&T, 552 F. Supp. at 152.
The proposed settlement here is of no less importance. This
settlement has broad ramifications for the national economy,
especially in technology development, and impacts millions of
American consumers--;ramifications with little precedent in the
[[Page 28596]]
history of antitrust jurisprudence. In such circumstances, the
Court's careful, independent review is essential to ensure the
decree serves the public interest.
Finally, the proposed settlement also requires heightened
scrutiny because half of the States that joined in prosecuting the
case do not agree that the settlement would protect the interests of
their citizens. The government is now expressing views substantially
inconsistent with its expressed positions at earlier stages of the
case. Where elected representatives of the public are sharply
divided on whether the settlement actually serves the public
interest, any questions concerning whether the settlement is fair to
the public must be subject to exacting scrutiny. ``None of this
means, of course, that the Court would be justified in simply
substituting its views for those of the parties. But it does mean
that the decree [should] receive closer scrutiny than that which
might be appropriate to a decree proposed in a more routine
antitrust case.'' AT&T, 522 F. Supp. at 153.
THE PROPOSED SETTLEMENT FAILS IN EVERY MATERIAL RESPECT TO
ACHIEVE THE OBJECTIVES OF RELIEF REQUIRED BY THIS CASE AND
AFFIRMATIVELY PROVIDES A ``GREEN LIGHT'' AND AN INCENTIVE
TO ENGAGE IN EXCLUSIONARY CONDUCT
A. The Government Has Abandoned Its Prior Effort To Use
Injunctive Relief To ``Pry Open'' The Monopolized Market,
Conceding That Its Purpose Is Now Merely To Protect
``Nascent'' Threats To The Windows Monopoly
The Court of Appeals affirmed findings that Microsoft
extinguished all tangible threats to its operating systems monopoly.
CA at 79; D.Ct. at 68-;77. The findings also
support the conclusion that if Microsoft had pursued competition on
the merits rather than anticompetitive conduct, significant erosion
of its monopoly would have occurred. See generally CA at
58-;79. Certainly, that is what Microsoft's CEO believed when
he envisioned the Windows operating system being
``commoditized'' by Netscape. D.Ct. at 72. The
proposed settlement does nothing to deprive Microsoft of either the
``fruits'' or the source of its successful strategy of
extinguishing competition, nor does it restore to consumers the
benefits of the choices that they would have had if Microsoft's
illegal conduct had never occurred.
At this stage of the proceedings, the government states that its
goal is merely to ``restore the competitive threat that
middleware products posed prior to Microsoft's unlawful
undertakings.'' CIS at 3. These were, as the government admits,
merely ``nascent threats,'' id. at 24, 25, not the fully-
developed alternatives that would have existed today but for
Microsoft's conduct. The competitive threats to the Microsoft
monopoly were stillborn, not as a result of fair competition but, as
the government acknowledges, because of Microsoft's predation:
Through its actions against Navigator and Java, Microsoft
retarded, and perhaps extinguished altogether, the process by which
these two middleware technologies could have facilitated the
introduction of competition into the market for Intel-compatible
personal computer operating systems.
CIS at 16-;17. Although the CIS acknowledges that merely
prohibiting future instances of Microsoft's past exclusionary,
monopolistic conduct is not sufficient to restore competition, in
reality that is all the proposed settlement attempts to do, and even
those minimal efforts are unavailing.
indeed, in the earlier remedy proceedings, the government
characterized Microsoft's view of appropriate relief (which the
government has now largely adopted) as a ``crabbed view of
antitrust remedies:''
[E]specially in an industry like the software industry, which as
Microsoft has repeatedly emphasized is rapidly changing, a remedy
limited to barring repetition of the precise acts in the precise
contexts that were at issue in the trial could not possibly serve
the required purposes of preventing recurrence of the violations and
restoring competition.
Gov't D.Ct. Reply Memo at 49. It is therefore ironic that the
government now embraces in the proposed settlement many of the same
substantive decree provisions it earlier dismissed as woefully
inadequate.
Presaging the current dispute over remedies, the government
stated in a pleading before the District Court almost two years ago:
In crafting an effective Sherman Act remedy, a court must use
the record of a backward-looking trial to fashion forward-looking
relief. Looking forward, the Court must anticipate that Microsoft,
unless restrained by appropriate equitable relief, likely will
continue to perpetuate its monopoly by the same anticompetitive
methods revealed at trial, although directed at whatever new
competitive threat arises. Neither the Netscape browser nor Java
continues to have the prospect of lowering the applications barrier
to entry, and it is not certain where future threats to Microsoft's
operating system will arise.
Gov't D.Ct. Memo at 27-;28. The government then went on to
describe as potential middleware or platform threats to Microsoft's
operating system monopoly such products and technologies as
Microsoft's own Office suite; applications such as voice recognition
software, media streaming technology and email programs; server
operating systems (and the need for interoperability between PCs and
servers); and non-PC devices such as PDAs and hand-held computers.
See id. at 28-;29.
A settlement such as this one, which limits itself to protecting
the next generation of emerging threats instead of ``prying
open'' the monopolized market (thereby effectively blessing the
extinction of the first generation and the preservation of
Microsoft's monopoly), cannot claim to serve even this minimal goal
without anticipating and prohibiting, with both specificity and
generality, the many ways in which Microsoft can thwart new forms of
competition from novel or different technologies, such as those
listed by the government. In this regard, it is noteworthy that the
Court of Appeals, like the District Court, found that Microsoft's
commingling of its browser and operating system codes constituted
illegal monopoly maintenance. CA at 64-;67. Yet the settlement
would allow such conduct to continue. And as long as such
commingling is allowed, Microsoft has the power to prevent the next
generation of computing on web and network servers, nascent or
otherwise, from overcoming its operating system monopoly. Thus, the
decree does not even bar ``repetition of the precise acts in
the precise contexts that were at issue in the trial.'' Gov't
D.Ct. Reply Memo at 49.
B. The Proposed Settlement Is Riddled With Loopholes That Invite
Evasion, Does Not Anticipate And Prohibit New Forms Of Exclusionary
Conduct To Protect The Windows Monopoly, And Discourages The
Development Of Competition To Windows
1. The Proposed Settlement Provisions To Protect Middleware Do
Not Adequately Address Microsoft's Past Illegal Conduct, Much Less
Prevent Its Recurrence In The Future
One of the principal threats to the dominance of Microsoft's
operating system monopoly was middleware, which refers to
``software products that expose their own APIs.'' CA at
53; D.Ct. 28, 68. Since middleware exposes APIs for
which software developers can write programs, it can provide a less
time-consuming and cheaper means of writing applications that can
run on various operating systems. Id. Anything that reduces the need
to adapt, or ``port,'' an application to competing
operating systems threatens to overcome Microsoft's monopoly in the
PC operating systems market by eliminating the applications barrier
to entry. CA at 54-;56; D.Ct. at 68-;78.
Unfortunately, the provisions that address middleware are so
limited and rife with exceptions as to be virtually meaningless.
Sections III.C and III.H of the proposed settlement are inadequate
in at least the following respects: (a) the definitions of key terms
invite easy evasion and make Microsoft's compliance virtually
discretionary; (b) while the settlement is fairly specific in
limiting Microsoft's ability to restrict OEMs from promoting
competing software, it is silent on a crucial
tactic--;technological binding\4\--;that Microsoft
was proven to have used to the same exclusionary ends; and (c) the
settlement undermines its own purported goals by including
exceptions to each prohibition that largely negate the relief
ordered. In its narrowness, the settlement also ignores new
products, the potential for future innovation, and novel methods by
which similar anticompetitive results may be achieved. As such, the
decree fails either to remedy past effects or prevent future
anticompetitive acts from occurring.
---------------------------------------------------------------------------
\4\The terms ``binding'' or ``commingling
of code'' refer to including software or a link to web-based
software in an operating system product in such a way that either an
OEM or end-user cannot readily remove or uninstall the code without
degrading the performance or impairing the functionality of the
operating system. ``Bundling'' refers to the sale or
marketing of different software products in a single package, but
without commingling of their codes.
---------------------------------------------------------------------------
a. The Definitions In The Decree Effectively Leave Compliance At
Microsoft's Discretion
[[Page 28597]]
i. The Definitions Of ``Microsoft Middleware'' And
``Microsoft Middleware Product'' Encourage Microsoft To
Continue Binding Middleware To Its Monopoly Windows Operating System
The definition of ``Microsoft Middleware'' is of
crucial importance because, if a program constitutes
``Microsoft Middleware,'' Microsoft is then subject to
requirements that it disclose the programming interfaces and
communications protocols by which the middleware interoperates with
the Windows operating system. The definition also triggers
Microsoft's obligation to allow OEMs to re-configure the PC desktop
to give purportedly equal access to competing middleware. See CIS at
17-;18; RPFJ III.C, III.D, III.E. As shown
below, these disclosures and obligations are not adequate to
accomplish their avowed purpose. The government's stated goal is to
ensure the viability of the OEM distribution channel for competing
middleware products and the ability of those products to achieve
``seamless interoperability'' with the Windows operating
system. CIS at 38.
The proposed settlement defines ``Microsoft
Middleware'' as software code that: (1) is distributed
separately from the Windows Operating System Product; (2) is
trademarked; (3) provides functionality similar to a Microsoft
Middleware Product; and (4) has the code necessary to be considered
a self-contained product. See RPFJ VI.J. Because each
element of this definition is too narrow or too easily evaded by
Microsoft, the obligations that are triggered by the definition are
largely illusory.
The first part of this definition bears directly upon
Microsoft's practice of initially distributing a middleware product
separately, then bundling it for sale with Windows, and finally
binding it to the operating system. See D.Ct. at
155-;74 (discussing employment of these tactics
with IE). Binding, or commingling of source code was held by the
Court of Appeals to be illegal conduct used by Microsoft to
eliminate the browser threat. See CA at 64-;67; D.Ct. at
159, 170-;74. It is unnecessary technically and has
no procompetitive justification. Id.
The practical effect of the settlement's definition, however, is
to allow Microsoft to achieve the same anticompetitive results
merely by omitting the first of the three steps mentioned above.
Simply by bundling middleware applications with the operating system
from the outset (so that they would not be ``distributed
separately''), Microsoft may render any provision regulating
its use of ``Middleware'' a nullity. Because the
settlement contains no limitations on bundling or commingling of
Microsoft middleware with the monopoly operating system, the
definition actually encourages Microsoft to engage in
anticompetitive practices--;i.e., commingling of code--;in
order to avoid application of the decree.
Second, the definition of ``Microsoft Middleware''
requires that the product must be trademarked. Simply by not seeking
a trademark, Microsoft can ensure that its middleware will not be
covered by the settlement's provisions.\5\ This means that Microsoft
can distribute any product that may have other intellectual property
protections, such as copyright or patent protection, but that is not
trademarked, without the product being considered
``Middleware.'' Of course, if Microsoft chooses to bind a
product to the operating system and not distribute it separately,
there would be no need to trademark the product.
---------------------------------------------------------------------------
\5\Even the settlement's definition of
``trademark'' is so broad as to further limit the scope of
the decree: ``Trademarked'' means distributed in commerce
and identified as distributed by a name other than Microsoft(r) or
Windows(r) that Microsoft has claimed as a trademark or service mark
by (i) marking the name with trademark notices, such as ?? or TM, in
connection with a product distributed in the United States; (ii)
filing an application for trademark protection for the name in the
United States Patent and Trademark Office; or (iii) asserting the
name as a trademark in the United States in a demand letter or
lawsuit. Any product distributed under descriptive or generic terms
or a name comprised of the Microsoft(r) or Windows(r) trademarks
together with descriptive or generic terms shall not be Trademarked
as that term is used in this Final Judgment. Microsoft hereby
disclaims any trademark rights in such descriptive or generic terms
apart from the Microsoft(r) or Windows(r) trademarks, and hereby
abandons any such rights that it may acquire in the future.''
RPFJ VI.T. Thus, Microsoft may release a new middleware
product entitled WindowsTM Telephone, for example, and because the
name is descriptive rather than trademarked, it would not be
considered ``Microsoft Middleware'' under the terms of the
decree.
---------------------------------------------------------------------------
The third requirement, which refers to the functionality of a
``Microsoft Middleware Product,'' further limits the scope
of the ``Microsoft Middleware'' definition. This is
because the definition of ``Microsoft Middleware Product''
lists by name several products traditionally considered middleware,
including Internet Explorer, Microsoft's Java Virtual Machine,
Windows Media Player, Windows Messenger, Outlook Express, and their
successors in the Windows operating system. See RPFJ
VI.K. But limiting the definition of Microsoft
``Middleware'' only to those products which in the past
were distributed as middleware fails to account for future
development of new products. In addition, the definition omits
important existing products, such as Microsoft Office\6\6 and
Internet telephony products, that perform functions analogous to the
listed ``middleware'' products.\7\
---------------------------------------------------------------------------
\6\Significantly, by omitting Microsoft Office from the
list of middleware products, the government has eliminated from the
proposed settlement a middleware product that provides Microsoft
with a de facto monopoly in the middleware market. As of March 1997,
Office's market share had reached 90%, a figure that has likely
grown since that point. See Jesse Berst, Office Suites for Free
ZDNet AnchorDesk (March 7, 1997), at http://www.zdnet.com/
anchordesk/story/story--;743.html; see also, Benjamin Woodhead,
Microsoft's Australian Monopoly? Let the U.S. Handle It, iTNews
(Nov. 17, 1999), at http://www.itnews,com.au/story.cfm?ID=507
(referring to the lack of recent statistics on Office Suite's market
share, ``We don't bother to measure that market anymore because
Lotus and Corel have been squeezed out of it ... No one will pay for
that sort of research because everyone knows what the answer
is.'').
\7\Describing the functionality of a product in terms of
the categories of applications, rather than the operation of the
product, also limits the effectiveness of section III.H of the
proposed settlement, which relies heavily upon the definition of
``Microsoft Middleware Product'' to set the parameters of
non-Microsoft middleware access to the OEM distribution channel.
---------------------------------------------------------------------------
The fourth requirement is that the code must be ``self-
contained.'' This too encourages commingling of Microsoft
middleware with the operating system, because it allows Microsoft to
create cross-dependent products solely to avoid complying with the
provisions applicable to ``Middleware.'' If Microsoft is
allowed to commingle the code for the products in such a way as to
create cross-dependencies between the operating system and
middleware (as it did illegally for IE), it can avoid compliance
with many of the substantive provisions in the decree.\8\
---------------------------------------------------------------------------
\8\An example of cross-dependency is the link between IE
and Microsoft Word in the Windows Operating System Product. Even if
an end-user has selected Navigator as her default browser, IE may
automatically launch if the user clicks on a URL, (i.e., an Internet
address) that is contained in a Word document.
---------------------------------------------------------------------------
In the CIS, the government explains that the definitions of
``Microsoft Middleware'' and ``Microsoft Middleware
Product'' include the ``functionality'' of a number
of existing Microsoft middleware products, including IE, Windows
Media Player, and Outlook Express. See C1S at 17-;20. What is
not mentioned, however, is that the government previously advocated
a definition of middleware that was truly based on the function of
middleware and, as such, there was no need to distinguish between
``Microsoft Middleware'' and ``Non- Microsoft
Middleware.'' See Final Judgment 7(q).\9\ Nor does
the CIS discuss the fact that in the event that a particular item of
software code fails to meet any one of the four definitional
requirements in the settlement, it will not be regulated at all by
sections III.C, III.D, and III.E of the decree. This is significant,
because the definition as it stands now neither comports with the
traditional definitions of middleware, nor with the way the courts
in this case have used the term. See, e.g., CA at 53.
ii. The Definition Of ``Non-Microsoft Middleware
Product'' Is Too Narrow To Protect The Ability Of Products And
Competitors To Gain Equal Access To The OEM Distribution Channel
[[Page 28598]]
From the outset, the government has supported injunctive relief
designed both to give OEMs control over how to configure the PCs
they sell and to provide end-users with the ability to remove
Microsoft middleware from their computers. See Gov't D.Ct. Reply
Memo at 45-;47, 60-;64. Sections III.C and III.H rely on
the definition of ``Non-Microsoft Middleware'' to identify
the competing software products that Microsoft must allow OEMs to
include on the Windows desktop if they so choose and to distribute
to consumers. The intention was to open the OEM channel to
distribution of competing software and thereby remove one of the
barriers Microsoft had erected to protect its Windows monopoly.
Indeed, the definition of ``Non-Microsoft Middleware
Product'' encompasses those technologies that Microsoft
``extinguished'' (such as the Netscape browser) as it
defines the products entitled to protection. Before a new program
receives this protection, however, the settlement's definition of
``Non-Microsoft Middleware Product'' requires that at
least one million copies of the product must have been distributed
in the previous year. RPFJ VI.N. This onerous
requirement defeats the government's express purpose of giving new
products an adequate chance at the OEM distribution channel.
---------------------------------------------------------------------------
\9\The Final Judgment contained the following definition
for Middleware, which it applied to both Microsoft and Non-Microsoft
Middleware: ``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.
---------------------------------------------------------------------------
The CIS asserts that this level of distribution is
``minimal'' and ``necessary'' so that
Microsoft's affirmative obligations will not be triggered by
``minor'' or ``non-existent'' products. CIS at
20-;21. There is no support in the record, however, or in
antitrust law generally for the notion that only large competitors
deserve protection. ``Minor'' new products, i.e., the
nascent competition that the CIS claims will be restored, deserve
protection no less than older, more significant ones. One thing that
the history of the software industry proves is that some of the most
popular products and services were created by the ingenuity of small
firms working alone without means of distributing their products.
Most, even with the OEM distribution channel opened to them, failed
to distribute one million copies the first year on the market, and
the CIS cites no evidentiary support for setting the distribution
trigger at the extraordinary level of one million copies.
Through this definition, the settlement creates a major obstacle
to new products or competitors being able to obtain wide release and
distribution of innovative products. Moreover, it has the additional
pernicious effect of allowing Microsoft ample time to develop and
promote or announce a preemptive offering before the non-Microsoft
product reaches the one million distribution mark. Final Judgment
7(q).
iii. The Definition Of ``Windows Operating System
Product'' Grants Microsoft Unfettered Discretion To Decide What
Is And What Is Not Part Of Its Operating System
The settlement defines ``Windows Operating System
Product'' as a closed universe of past operating system
products that is comprised of the software code of Microsoft's
currently-distributed versions of its PC operating system, including
Windows 2000 Professional and Windows XP Home and Professional, and
their successors. RPFJ VI.U. The definition also leaves
in Microsoft's ``sole discretion'' the determination of
what software code constitutes future versions of the Windows
Operating System Product. Id. The CIS fails to explain why the
definition in the proposed settlement does not establish an
objective standard, but instead entrusts such determinations to
Microsoft's ``sole discretion.'' Additionally, rather than
explaining how the definition impacts upon the objectives of the
decree and why it was drafted in this way, the CIS merely states
that the definition leaves ``packaging'' (read: bundling
or binding) decisions in Microsoft's hands. CIS at 23-;24.
The government fails to reconcile this definition with the Court
of Appeals' finding that Microsoft utilized commingling of
code to maintain its monopoly. Nor does it explain how the
definition meets the government's avowed goal that the settlement
put an end to Microsoft's past monopolistic conduct. The definition
gives Microsoft incentives to integrate middleware into its
operating system to avoid having middleware products classified as
such.
Of particular importance for the future, the definition fails to
take into account that Microsoft manufactures non-PC and non-desktop
PC operating systems, such as an operating system for personal
digital assistants (PDAs) and other handheld devices. These systems
include Windows CE 3.0, Windows NT ?? Embedded 4.0, Windows CE for
Automotive, Windows 2000 with the Server Appliance Kit, Windows for
Smart Cards, Windows CE .NET and Windows XP Embedded. Any settlement
that serves the public interest must cover new products that
Microsoft can and will use to protect its PC operating system
monopoly. There is an extensive set of devices which are the target
for these systems beyond PDAs and pocket PCs, including smart
phones, smart TVs, gaming devices, web pads, Internet appliances,
media appliances, digital cameras, printers, scanners, retail point
of sale devices, Windows based thin-client terminals, set-top boxes,
residential gateways, automobile computing systems, home servers,
industrial control devices and smart cards. In short, the proposed
settlement's definition ignores both past and future operating
system products. A proper definition of ``Windows Operating
System Product'' would both recognize Microsoft's past product
releases and include all Microsoft operating systems for any
hardware device, including PCs, servers and handheld computing
devices.\10\
---------------------------------------------------------------------------
\10\The definitions of ``Windows Operating System
Product'' and ``Personal Computer,'' read together,
also create an ambiguity that places in doubt whether future
versions of Microsoft's operating system will even qualify as a
``Windows Operating System Product'' under the proposed
settlement. Windows XP is Microsoft's first PC operating system
designed for shared or multiple person use. Microsoft has promoted
XP's ability to facilitate home networks where many people can share
devices and Internet connections.
See Experience the Connected Home: Share One or Many Computers
(May 9, 2001), at http://www.microsoft.com/windowsxp/home/
evaluation/experiences/connectedhome.asp. Because Windows Operating
System Product is defined as software ``distributed
commercially by Microsoft for use with Personal Computers,''
RPFJ VI.U, and the definition of ``Personal
Computer'' means ``any computer configured so that its
primary purpose is for use by one person at a time,'' RPFJ
VI.Q, if XP or its successors are distributed primarily
for multiple users or employed for construction of mini-networks or
servers, successor products could fail to meet the definitional
requirements to be covered under the decree. See RPFJ
VI.Q (expressly excluding servers and other computing
devices from the definition of Personal Computer).
---------------------------------------------------------------------------
b. The Settlement Fails To Prohibit Tactics Used By Microsoft To
Foreclose OEM Distribution Of Competing Products And Allows That
Unlawful Behavior To Continue
The proposed settlement effectively endorses, through its
silence, tactics previously employed by Microsoft to prevent OEMs
from becoming an effective distribution channel for competing
middleware products. Among the deficiencies in section III.C of the
settlement are: (i) its failure to prevent Microsoft from binding
middleware to its operating system; (ii) its failure to require
Microsoft to set meaningful price differentials between ``fully
loaded'' and ``stripped down'' (without Microsoft
Middleware) versions of the Windows operating system that could
``pry open the market'' for competing bundles of software
and middleware offered by OEMs and third-party customizers; and
(iii) the inclusion of limitations and loopholes that undermine the
purpose of the decree provisions.
i. A Prohibition Against Commingling Of Code Is Necessary To
Prevent Microsoft From Continuing To Exclude Competition That
Threatens The Windows Monopoly
The Court of Appeals affirmed the District Court's findings that
Microsoft's commingling of the code for IE with the code for Windows
and its refusal to allow end-users to remove the IE browser from the
Windows desktop constituted exclusionary acts in violation of
Section 2. See CA at 66-;67. Binding the IE middleware product
to the Windows operating system injured both Netscape and consumers
by degrading the ability of Netscape to effectively interoperate
with Windows, thus reducing consumer options in browser choice, and
by ensuring that deletion of files containing browser-specific
functions would also delete vital operating system routines, thus
crippling Windows. CA at 65-;66 (citing D.Ct. at 164).
Microsoft's anticompetitive purpose so dominated its business
decisions that it degraded its own products by binding, since
commingling of code decreased the security and reliability of
Windows. CA at 62, 65; D.Ct. 174.\11\
---------------------------------------------------------------------------
\11\``Binding harmed consumers who did not want
Internet Explorer, by causing `performance degradation,
increased risks of incompatibilities, and the introduction of
bugs.''' Felton Decl. 84 (citing D.Ct. at 173).
In response to these acts, the government initially advocated a
prohibition against the binding of software to the operating system,
in order to prevent Microsoft from repeating the illegal conduct
that the Court found it undertook with respect to the browser. See,
e.g., Findings 164, 166-;74, 176; see also Zenith,
395 U.S. at 132 (a remedy should prevent defendant from repeating
the ``same
[[Page 28599]]
type or class'' of unlawful conduct). Forced bundling injures
consumers directly and injures competition by increasing the costs
rival software vendors must incur to get their products distributed
effectively. It is an especially potent competitive weapon for
Microsoft because Microsoft is able to target competing middleware
threats--;like the browser--;by bundling its own version
with its operating system monopoly, thereby protecting that
---------------------------------------------------------------------------
monopoly.
Gov't D.Ct. Reply Memo at 60-;61 (emphasis added). Indeed,
the government's chosen remedy on this issue in the Final Judgment
not only required abolition of commingling, but required the price
of Windows to be reduced in proportion to the amount of unbundled
programming that was removed by an OEM:
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:
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 desktop; and 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. See Final Judgment 3(g).
In the CIS, the government acknowledges that the Court of Appeals
found that Microsoft unlawfully ``integrated its web browser
into Windows in a non-removable way while excluding rivals,''
CIS at 3, but then makes no further mention of the commingling
issue.
Notwithstanding the government's stated conviction (backed by
the Court of Appeals'' holding) that binding violates Section
2, the proposed settlement gives a green light to Microsoft's
continuing to bind middleware products to its operating system. This
gap in the settlement's coverage, coupled with the definitions of
Microsoft Middleware and Microsoft Middleware Product, not only
allows Microsoft to continue its past anticompetitive conduct, but
also provides Microsoft with an incentive to use the same techniques
to extend its monopoly into other areas.\12\
---------------------------------------------------------------------------
\12\In addition to the settlement's failure to prohibit
commingling of code, the settlement also condones Microsoft's
bundling of products with its operating system. Section III.C
presents OEMs with a laundry list of options they may adopt in
installing, displaying, and distributing Non-Microsoft Middleware,
but nothing in the proposed settlement prevents Microsoft from
forcing OEMs to accept additional products as part of the Windows
Operating System Product that are included with the operating
system. As a result, under the proposed settlement, OEMs can be
forced to accept a complete package of Microsoft products with each
license of the Windows operating system.
---------------------------------------------------------------------------
The settlement's failure in this respect is underscored by
Microsoft's recent introduction of Windows XP, which plainly
demonstrates its intent to continue defending the Windows monopoly
by binding even more applications and services to its new operating
systems, notwithstanding the determination that doing so is illegal.
Windows XP has more Microsoft middleware products and services bound
to or included with the operating system than any previous version
of Windows. One of the services integrated into XP is Passport, a
web authentication, security and credit card verification service
that allows consumers, using a single log-in, to shop on thousands
(and ultimately, Microsoft hopes, millions) of websites that accept
Passport. Because Microsoft's past unlawful conduct allowed it to
maintain a PC operating system monopoly and acquire a de facto
monopoly in the browser market (IE is used to access the Internet by
approximately 91% of consumers),\13\ Microsoft is in a uniquely
advantaged position to encourage subscription to Passport whenever a
user connects to the Internet from her XP desktop. This is so
because XP comes fully loaded with prominently displayed prompts for
Passport throughout the program, starting with the initial boot
sequence and continuing each time the user logs on to her computer.
---------------------------------------------------------------------------
\13\Don Clark, AOL Sues Microsoft Over Netscape in Case
That Could Seek Billions, Wall Street Journal, Jan. 23, 2002, at B4
(citing Browser Market Shares StatMarket (2002), at
www.websidestory.com).
---------------------------------------------------------------------------
As Microsoft succeeds in generating Passport subscriptions
through its monopoly distribution of Windows XP, retailers with web
portals selling products and services on the Internet will be forced
to accept Passport as their authentication system. In this way,
Microsoft will be able to nullify threats to the Windows monopoly by
precluding other web-based alternatives to Passport. Furthermore, by
defending its PC monopoly with Passport, Microsoft will also insert
itself on both sides of a web transaction. Because of the
``network effect,'' the final outcome--;absent strong
and effective injunctive relief--;is likely to be that most e-
commerce will be conducted with either the consumer or vendor, or
both, paying a fee to Microsoft for the use of Passport.
To the extent Passport gains a foothold as an authentication
gateway to Internet commerce, this will erect a new barrier to entry
for competing operating systems. Consumers will be reluctant to
switch to a non-Windows PC operating system, because the personal
information stored on Passport is readable only by Microsoft web
servers, which in turn can be designed to interact most effectively
with the Windows operating system and its embedded middleware, such
as IE. At the same time, by erecting a fence (Passport) between PC
users and the Internet generally, Microsoft will make it far less
likely that a competing middleware platform, such as Netscape's
Navigator, will displace user dependence on Windows, because without
Passport, Navigator may end up being of little utility for e-
commerce.
Nothing in the proposed settlement would prevent this chilling
repetition of Microsoft's monopolizing conduct. By failing to
adequately address the old tactics used (binding middleware to the
operating system) and limiting the scope of the remedy in a manner
which excludes new products and services, the proposed settlement
fails in a critical way to end Microsoft's monopolizing conduct, let
alone to deny Microsoft the fruits of its PC monopoly.\14\
---------------------------------------------------------------------------
\14\It is noteworthy that the binding of applications is
not limited to browsers and internet-related services, but also
includes common applications such as word processing. For example,
Microsoft has used its operating system monopoly to motivate
consumers to use Microsoft Word instead of Corel's Word Perfect.
Regardless of the quality or perceived attributes of Word Perfect
versus Word, many businesses and individual consumers use Word
simply to avoid incurring the additional trouble and expense of
licensing a second word processing application when the PC operating
system already comes equipped with such a function.
---------------------------------------------------------------------------
ii. The Proposed Settlement Omits Any Requirement That Microsoft
Offer A Stripped-Down Version Of Windows At A Price That Reflects
The Value Of The Removed Middleware Products
As the Court of Appeals held, there is an economic disincentive
for OEMs to offer, install and service a second middleware product
such as a browser. CA at 66. However, nothing in the proposed
settlement provides OEMs with an economic incentive to become a
viable and effective means of distribution for alternative
middleware products. Only by requiring Microsoft to provide OEMs
with an economically-viable ``stripped-down'' version of
Windows--;including the ability to completely remove Microsoft
middleware from the operating system, see Final Judgment
3(g)(i)--;will OEMs ever have an incentive to offer
users products containing Non-Microsoft middleware alternatives.
Even if Microsoft were required to provide OEMs with an
unbundled operating system, it would only be possible for OEMs to
offer consumers a choice of an alternative middleware/software
package for the PC if Microsoft's price to the OEM were reduced to
reflect the lower value of a software package that does not include
Microsoft middleware that the OEM wishes to replace with competing
products. Put another way, a market for alternative middleware
configurations will only arise if such alternatives can be priced
competitively with the ``fully loaded'' version of
Windows. If the cost of alternative middleware bundles is always
higher than that of the Microsoft Windows bundle, the market for
non-Microsoft middleware will be limited or nonexistent.
OEMs must have more than the Hobson's choice of either buying
Windows XP fully bundled at $200, for example, or paying $199 for a
stripped down version of Windows and then incurring the additional
capital and labor costs of replacing a Microsoft middleware product
with a competing
[[Page 28600]]
product bought at an additional, separate cost.
Consequently, any remedial proposal that seeks to open the OEM
distribution channel to competing middleware must address the
pricing of the Windows operating system. The Final Judgment
recognized the need for such a pricing mechanism. It required that
the price of versions of Windows from which Microsoft middleware
functions had been disabled or removed be reduced in proportion to
the relative amounts of computer code bytes found in the operating
system and middleware products in question. See Final Judgment
3(g)(ii). Alternative formulations based on the
relative product development costs are also available. See
Litigating States' 1.
Connected to the pricing issue is the failure of the proposed
settlement to allow any party that is not an OEM
(III.C) or end-user (III.H) to alter the
configuration of the Windows platform. This omission has the effect
of preventing third parties, who might fill a niche as customizers,
to directly offer OEMs or end-users specific software/middleware
packages that could be added to a stripped-down Windows operating
system. For example, it is likely that absent Microsoft's illegal
binding of its middleware to the Windows operating system, an
industry of independent bundlers specializing in the sale of
customized software packages would have developed. Using the
operating system as a platform, these vendors could create
customized software/middleware packages based on the need of
particular consumer market segments, such as stock market buffs,
antiques dealers or mathematicians.\15\
---------------------------------------------------------------------------
\15\The proposed settlement contains one exception to its
blanket prohibition on third party alterations: it would permit a
Non-Microsoft Middleware producer to designate that its product be
invoked automatically in place of a Microsoft Middleware Product.
However, the mechanism by which the producer may accomplish this is
at Microsoft's discretion, and Microsoft may require confirmation
from the end-user that he or she would like to accept this option.
See RPFJ III.H.2.
---------------------------------------------------------------------------
As it stands now, the proposed settlement creates no incentive
for OEMs to pursue any of the objectives of section III.C. Yet, if
the OEM distribution channel is not reopened, the decree will have
no chance to succeed in its most important goal--;to restore
competition in the monopolized market--;as no ISV will have
equal access to consumers.
iii. The Provisions In The Proposed Settlement That Purport To
Foster OEM Flexibility In Product Configuration And Middleware
Choices Contain Fatal Ambiguities And Loopholes
Although the government originally supported straightforward
remedy provisions governing OEM flexibility as to what products
could be offered with a PC operating system, it now retreats to
complicated provisions whose limiting language undercuts the
purported relief. Compare Final Judgment 3(a)(iii) with
RPFJ III.C. When the government initially proposed
provisions that would allow OEMs to reconfigure the products they
offered to meet consumer demand free from Microsoft's restrictions,
it stated:
Microsoft ... refused to permit OEMs to remove the Internet
Explorer icon, even when their customers wanted them to do so. This
provision of the Final Judgment thus prohibits Microsoft from
preventing OEMs from undertaking competitively valuable alterations
to the first screen, bootup sequence, and icon display and will help
the OEM channel for distribution of non-Microsoft software, thereby
giving consumers greater choices not only in how their computers
look, but in what innovative software OEMs can offer them (Shapiro
pp. 17-;20, 24).
Gov't D.Ct. Memo at 39. In response to Microsoft's objections,
the government reiterated that the purpose of the provisions was to
prevent Microsoft from restricting OEMs'
ability to customize their PCs in certain ways to promote non-
Microsoft software. [It] will simply enable them to configure their
systems so that non- Microsoft software can launch automatically,
OEMs can offer their own internet access provider or other start-up
sequence, and non- Microsoft Middleware can be made the default.
Gov't D.Ct. Reply Memo at 45-;46.
Notwithstanding the logic of the government's past proposals,
the proposed settlement replaces clarity with ambiguity and
loopholes. Section III.C.1 states that ``Microsoft may restrict
an OEM from displaying icons, shortcuts and menu entries for any
product ... to products that provide particular types of
functionality,'' but nowhere defines
``functionality.'' Without such definitions, Microsoft is
free to decide what categories of middleware
``functionality'' qualify for display. Thus, nothing
prevents Microsoft from excluding non-Microsoft middleware products
for which no Microsoft counterpart exists--;an obvious deterrent
to competing middleware products that are more innovative than
Microsoft's own products.
Section III.C.2 ostensibly allows OEMs to distribute and promote
non-Microsoft middleware through the display of shortcuts on the
Windows desktop, but provides that the provision will apply only
``so long as such shortcuts do not impair the functionality of
the user interface.'' However, by never stating who determines
when the ``functionality'' of Microsoft's operating system
is impaired, the provision gives Microsoft free reign to decide
which non-Microsoft products may be promoted by an OEM.
Section III.C.3 permits OEMs to configure competing middleware
products to launch automatically at the conclusion of the initial
boot sequence or upon connection or disconnection from the Internet.
CIS at 31. It also appears to prohibit ISVs and OEMs from palming-
off competing products by imitating Microsoft's trade dress.
Nonetheless, the ambiguous wording of the provision would let
Microsoft decide, in the first instance, which competing products
may be displayed and what form the user interfaces (e.g., icons) may
take. Moreover, as in III.C.1, the provision's benefits
are tied to a ``functionality'' determination made by
Microsoft. The automatic launch of competing Middleware is only
assured ``if a Microsoft Middleware Product that provides
similar functionality would otherwise be launched automatically at
that time,'' which would again limit the settlement's reach to
products with which Microsoft already competes.\16\
---------------------------------------------------------------------------
\16\Section III.C.4 allows OEMs to offer alternative
operating systems. While seemingly procompetitive, the government
fails to acknowledge that there currently is no market for
alternative operating systems. See CIS at 32. As the Court of
Appeals explained, due in large part to network effects, there is no
incentive for consumers to use or for ISVs to write programs for PC
operating systems other than Windows. See CA at 49-;50, 55.
Moreover, it is unclear that it is technologically feasible to
include multiple operating systems on the same PC without
sacrificing significant amounts of storage capacity or speed. No
similar provision appeared in the Final Judgment, a fact which
suggests that it is mere window-dressing (no pun intended) and does
nothing to eliminate the barriers to competition erected by
Microsoft.
---------------------------------------------------------------------------
Subsection 5 allows OEMs to configure the Windows desktop to
promote a non- Microsoft Internet access provider
(``IAP'') in the initial boot sequence. The provision is
problematic for two reasons. First, it permits Microsoft to require
that such offers meet ``reasonable technical specifications
established by Microsoft,'' which are never defined.
Second, because it refers only to IAP offers, the proposed
settlement prevents OEMs from offering any other type of product or
service in the initial boot sequence. In striking contrast, the
initial boot sequence for Windows XP offers a wide range of
Microsoft products and services, including Passport, Hotmail,
Instant Messenger and Internet telephony. Competition cannot be
restored unless all competing middleware products, not just IAPs,
are put on equal footing with Microsoft products. Because the
proposed settlement allows Microsoft to retain the advantages of its
operating system monopoly in the boot sequence by having an
exclusive chance to promote its products and services, it fails to
serve the public interest.
Finally, nothing in the proposed settlement discusses
OEMs' ability to offer an alternative desktop. Prior to
Microsoft's prohibiting the practice, OEMs would change the
appearance of the desktop in ways they found beneficial. D.Ct. at
214. Some OEMs replaced the Windows desktop with a user
interface of their own design or one that conformed with that of the
OEM's selected browser. CA at 62-;64. The government previously
advocated a provision in the Final Judgment that assured OEMs the
ability to offer an alternative to the Windows desktop, subject to
the proviso that an OEM may not completely block access to the
Windows desktop. See Final Judgment 3(a)(iii)(3) (OEMs
may ``display any user interfaces, provided that an icon is
also displayed that allows the user to access the Windows user
interface'').\17\ In the CIS, however, there is no explanation
for the
[[Page 28601]]
omission in the proposed settlement of this and other OEM
configuration options that the government strongly advocated before
the District Court and on appeal.
---------------------------------------------------------------------------
\17\The Court of Appeals found no justification for the
restrictions on OEM configuration generally, but did hold that
``a shell that automatically prevents the Windows desktop from
ever being seen by the user is a drastic alteration of Microsoft's
copyrighted work, and outweighs the marginal anticompetitive effect
of prohibiting the OEMs from substituting a different interface
automatically upon completion of the boot process.'' CA at 63.
---------------------------------------------------------------------------
c. Provisions That Purport To Allow End-Users And OEMS To Enable
Or Remove Middleware Products Are Severely Flawed
Section III.H of the proposed settlement purports to allow end-
users the freedom to add and remove middleware as they see fit. In
actuality, the provision fails to do so because: (i) Microsoft is
never required to permit an end-user or OEM to remove a Microsoft
Middleware product from the PC's memory, only to
``disable'' the functionality and ``remove'' the
icon or other visual means of access; (ii) Microsoft continues to
have full control over whether and when its products may override or
launch in place of competing products; and (iii) the timetable for
implementation renders the provision almost useless as a means of
restoring competition.
i. Inability To Actually Remove Microsoft Products From The
Operating System Cripples The Effectiveness Of The Decree
The Court of\ \ Appeals held that Microsoft's removal of IE
from the add/remove utility Windows had the effect of reducing usage
of rival browser products and violated Section 2. CA at 65. Loading
the operating system with Microsoft middleware that cannot be
removed imposes greater burdens on OEMs that choose to install
competing middleware products? It also prevents consumers from
receiving full access to the products and services of their choice.
CA at 62, 65; D.Ct. at 174. Binding middleware products
to the operating system also has a significant effect on the ability
to remove Microsoft middleware, as it is difficult or impossible to
remove the products without degrading Windows. CA at 66-;67;
D.Ct. at 159.
---------------------------------------------------------------------------
\18\OEMs incur increased costs as a result of customer
``hotline'' calls to the OEM. CA at 61. The additional
program code also reduces the storage capacity of the computer and
the speed of the processor. This is yet another way that Microsoft
is able to erode OEM and consumer incentives to use competing
middleware products.
---------------------------------------------------------------------------
The government recognized that not being able to remove
Microsoft middleware had the effect of ``foreclosing customer
choice and excluding competition,'' Gov't D.Ct. Memo at 6, and
that Microsoft used this as a means of increasing the barriers to
entry for middleware. Id. at 42; Shapiro Decl. at 25-;26.
Consequently, the relief initially requested by the government
required that any Microsoft middleware product that was
technologically bound to the operating system must be removable to
create a ``stripped down'' version of Windows via the add/
remove utility. See Final Judgment 3(g)(i). No such
requirement exists in the current settlement, however. Although the
CIS states that section III.H ``ensures that OEMs will be able
to choose to offer and promote, and consumers will be able to choose
to use, Non-Microsoft Middleware Products,'' CIS at 45, the
government now discusses the provision in terms of ``removing
access'' to the middleware product without explaining that
``removing access'' does not mean removing the product
itself. Id.
Because section III.H of the proposed settlement fails to
require Microsoft to enable OEMs and end-users to remove unwanted
Microsoft middleware from Windows, it facilitates commingling of
code, raises rivals' costs, and renders product substitution
illusory.
ii. The Exceptions And Limitations Contained In The End User/OEM
Control Provisions Swallow The Relief Provided And Permit Microsoft
To Override OEM Or End-User Selections Of Preferred Middleware
Products
On the subject of OEM/end-user control, the proposed settlement
replaces a provision of less than fifty words in the Final Judgment
with a series of interlocking provisions that run over six hundred
words. Compare Final Judgment 3(g)(i) with RPFJ
III.H(1-;3). None of these limitations and exceptions
were present in the interim relief the government advocated before
the District Court previously, and the CIS is silent regarding the
rationale for the avalanche of restrictions that it now proposes.
Nor does the government suggest that the changes are needed in
response to any holdings by the Court of Appeals.
What the proposed provisions do is create so many exceptions,
limitations, and loopholes as to vitiate the broad pronouncements in
the CIS. Two aspects of section III.H exemplify the manner in which
the proposed settlement undermines its own efficacy: (a) permitting
Windows to automatically ask an end-user if he or she wants to alter
the computer's desktop configuration to restore Microsoft middleware
that was previously removed by an OEM; and (b) permitting Microsoft
virtually unbridled discretion as to when to override an end-user's
selection of a default web browser or other middleware.
(a) Microsoft Can Alter End-User/OEM Choices
As discussed above, the proposed settlement does not allow OEMs
or end-users to actually remove Microsoft middleware from their
computers, instead limiting them to merely deleting icons and menu
entries; the middleware itself remains physically in the computer,
or in many cases, technologically bound to the Windows operating
system. Even a conscious decision by an OEM or end-user to remove
Microsoft icons and menu items is subject to interference by
Microsoft under the proposed settlement. Section III.H.3(a) allows
Microsoft to include in the Windows operating system a prompt that
would ask the end-user, fourteen days after the initial boot up of
the computer, for permission to automatically erase the OEM's or
end-user's configuration of the system and reinstate the Microsoft
middleware that was previously deleted. RPFJ III.H.3(b).
This provision is troublesome for a variety of reasons, not
least its Orwellian reminder of Microsoft's omnipresence. Most
importantly, it allows Microsoft to undermine the configuration
choices made by OEMs that may include significant promotion of
competing middleware. It allows Microsoft to do this fourteen days
after an end-user first boots up the computer, at a time when the
end-user may not yet have gained a great deal of familiarity with
the computer. Depending on how the question is asked and the user's
level of sophistication, the user may not understand that he or she
is removing the programs installed by the computer's manufacturer
and replacing them with Microsoft products that may not work as
well. Furthermore, the prompt is unnecessary, because if a user
wanted a different configuration, she would be free to buy the
computer from another OEM or purchase additional software on her
own.
Nor is any limitation placed on the number of times Microsoft
may ``suggest'' that the user alter the configuration. But
regardless of how often Microsoft asks--;every day, every
fourteen days, once a year, or only once--;the fact that it can
raise the question at all not only undermines the OEM configuration,
but also the goal of providing end-users with ``a separate and
unbiased choice with regard to each Microsoft Middleware Product or
Non-Microsoft Middleware Product.'' RPFJ III.H.1(b)
(emphasis added); see also CIS at 48 (purpose of section III.H.3 is
to prevent automatic alteration of OEM configuration, such as
``sweeping the unused icons that the OEM has chosen to place on
the Windows desktop''). There is no justification for
permitting Microsoft to undercut this aspect of relief. Microsoft
should be prohibited from ever prompting users to scuttle their OEM
selections or desktop choices.
(b) Microsoft Can Override End-User/OEM Middleware Default
Choices
Although section III.H.2 of the proposed settlement ostensibly
enables end-users and OEMs (and middleware producers themselves) to
designate non-Microsoft middleware products (including web browsers)
to be invoked automatically in lieu of a Microsoft product,
loopholes and conditions destroy this provision's utility as a
remedial device.
As an initial matter, the default election procedure is made
reciprocal--;requiring that identical removal options be
afforded Microsoft with respect to non-Microsoft middleware that
would otherwise be the default. The government does not explain why
such parity is being offered to an antitrust violator at the expense
of those who have not violated the law.\19\
---------------------------------------------------------------------------
\19\Although the Court of Appeals did not affirm the
District Court's blanket conclusion that IE's override of competing
default browsers was illegal in all circumstances (for example, when
accessing Windows ``Help'' resources and updates on the
Internet), CA at 65-;67, the proposed settlement swings much
further in the other direction in permitting Microsoft to write the
rules of when such an override of a user's designated default
middleware product will be permitted.
---------------------------------------------------------------------------
More troubling are the ``Notwithstanding'' clauses
that follow subsection 3, which directly limit the benefits extended
by section III.H.2. Part 1 of the first clause allows Microsoft to
invoke a Microsoft Middleware Product if it is necessary for the
computer to interoperate with a server maintained by Microsoft. RPFJ
III.H. Because so much middleware--;be it a web
browser or a Java formulation--;now interacts with commercial
web servers, which are to a large extent Microsoft web servers, the
loophole created by this provision is
[[Page 28602]]
enormous. As computing moves off the desktop onto Internet servers,
communication with servers is becoming the norm. Moreover, because
IE has captured over 90% of the market as a result of Microsoft's
illegal conduct, Microsoft is now positioned to dominate the server
operating system market by changing the protocols its browser uses
to communicate with servers, from the current industry standard to
its own proprietary protocols. This will leave those who host web
servers with little choice but to use a Windows server operating
system. See pp. 70-;76 infra. Should this occur, the first
``notwithstanding'' clause of the proposed settlement's
section III.H will allow Microsoft to override users' default
browser selections in the vast majority of situations. The ultimate
outcome will be that the illegal Windows monopoly will again be
protected from the threat to its dominance posed by non-Microsoft
web-based computing.
The second ``Notwithstanding'' clause in
III.H allows a Microsoft Middleware Product to launch
if the designated Non-Microsoft Middleware Product fails to
implement a ``reasonable technical requirement (e.g., a
requirement to be able to host a particular ActiveX control).''
RPFJ III.H. Because the proposed settlement leaves it
to Microsoft to determine what a ``reasonable technical
requirement'' would be, the loophole created by this provision
is also enormous. To the extent the clause provides an example of
such a failure to meet a technical requirement, the exception is
overly broad. ActiveX is a programming environment that allows
programs provided by servers to run locally on a PC inside the web
browser. Its use replaces in part the cross-platform capabilities of
Java and the open standard communication protocols used by most
servers. Thus, by determining that the hosting of ActiveX is a
``reasonable technical requirement,'' the proposed
settlement ensures that anytime a Microsoft web product or service
is launched or any product or service that relies on a Microsoft
server is downloaded, Microsoft will be able to override a user's
choice of browser. This provision grants Microsoft license to
automatically override an end-user's browser choice when that user
accesses a program or service that requires interaction with a
Microsoft server. Far from restoring competition, this pernicious
provision protects Microsoft's ill-gotten operating system monopoly
from web-based competition.\20\
---------------------------------------------------------------------------
\20\The last part of the ``technical
requirements'' clause, moreover, puts the onus on ISVs to
request the reason for the technical failure. Because ISVs are
unlikely to be immediately aware that there is a technical failure
on the part of their middleware, the burden must be placed on
Microsoft to explain such overrides.
---------------------------------------------------------------------------
iii. The Timing Of Implementation Of Section III.H Allows
Microsoft To Reap The Fruits Of Its Past Illegal Conduct Without
Adequately Limiting Its Conduct Today Or In The Future
In addition to the foregoing serious deficiencies, the timetable
in section III.H for implementation of the substantive provisions by
itself renders the provision meaningless as a vehicle for restoring
competition. Under the terms of the proposed settlement, section
III.H will not be implemented until twelve months after submission
of the settlement to the Court or at the release of the first
service pack for Windows XP, whichever comes earlier. Because
Microsoft is not bound by any of the provisions until that time, it
has no incentive to release the first service pack prior to December
2002. The provision is thus rendered meaningless for a fifth of the
lifespan of the decree.
Microsoft has no grounds to complain about burdens caused by
making section III.H immediately effective. To the contrary, the
year delay in implementation would reward Microsoft for its bad
faith release of Windows XP, before a settlement was in place, with
full knowledge that (notwithstanding the monopoly maintenance
holding by the Court of Appeals) XP contains more bundled
middleware, more commingled code, and more prompts for Microsoft-
related products and services than any prior version of Windows. At
the very least, the release of XP violates the spirit of the
settlement by which Microsoft claims it is already abiding. No
minimally adequate settlement would fail to provide relief to the
marketplace as soon as practicable.
The proposed settlement also contains another glaring temporal
loophole. The last paragraph of section III.H states that only the
Microsoft Middleware Products that existed seven months prior to the
last beta test on a new version of Windows will be subject to the
requirements of the provision. This means that any new Microsoft
product or service, developed six months or less prior to the date
of the last beta test\21\ of a new Windows operating system
release or major upgrade, would not be subject to the requirements
that its icon or menu entry be removable from the operating system
desktop or the requirement that the automatic launching of the
product be disabled in favor of a competing middleware product.
---------------------------------------------------------------------------
\21\``Beta test'' refers to the last round of
testing for a new software product that is typically performed by
sending the software product out to consumers and industry insiders
both as a means of ironing out the kinks in the product and
obtaining publicity for the impending release. There is no set date
within the industry of when these ``tests'' are performed.
They can occur months before or immediately proceeding a pending
product release date.
---------------------------------------------------------------------------
The government offers no justification for a proposed settlement
that guts the section III.H ``removal'' provision with
myriad and, in some cases themselves anticompetitive, limitations
and loopholes, and then delays their implementation for significant
portions of settlement's proposed five-year duration.
In contrast to the current settlement's abundant accommodations
to Microsoft, two years ago, the government categorically rejected
Microsoft's complaints that it would be enable to comply with the
``unbinding'' provisions the government then advocated
(i.e., requiring that OEMs and end-users have the ability to engage
the Add/Remove utility to delete IE):
Microsoft's assertion that offering an ``unbinding''
option for OEMs and end-users for the few covered middleware
products in existing operating systems would take ``far longer
than six months, would cost hundreds of millions of dollars,''
and would result in a ``far inferior'' OS cannot be
reconciled with the record in this case and the district court's
findings.
Gov't CA Brief at 132; Gov't D.Ct. Reply Memo at 63-;64
(referring to its expert witness's ability to create a removal
program that did not damage or degrade the operating system in a
relatively short amount of time and the fact that Microsoft already
provided a ready means of removing at least 80 components, many of
which it considered ``integrated'' features of Windows).
There is no reason, technical or otherwise, why the government
should not insist upon timely and effective measures to prevent
Microsoft from continuing to commingle its middleware with its
operating system in blatant disregard of the Court of Appeals
ruling.
2. Provisions Designed To Protect Interoperability Between
Microsoft Products And Non-Microsoft Products Are Seriously Flawed
In the earlier remedy proceedings, the government explained the
indispensable competitive importance of
``interoperability'':\22\
---------------------------------------------------------------------------
\22\As a general matter, interoperability is the ability
of different computers, servers or other devices, regardless of
whether they use the same software and hardware, to freely transmit
and receive information to and from each other.
Microsoft's Operating System monopoly gives it the ability to
favor Microsoft products in other markets, by refusing to disclose
some of the Interfaces supported by Windows. Such a refusal would
allow Microsoft to prevent some products from interoperating fully
with Windows. Permitting all products to interoperate fully with
Windows is necessary to ensure that that those products realize
their full potential in terms of performance and functionality.
Felton Decl. 51-;52 (emphasis added). Indeed,
full interoperability has long been recognized by Microsoft, quite
correctly, to be a primary threat to its monopoly position in the PC
operating system market because it would allow multiple, competing
operating system platforms to perform essentially all the functions
of a Windows PC. CA at 52-;54; D.Ct. 68-;93;
Henderson Decl. 12-;18, 29-;40; Shapiro Deck
at 20-;21. Middleware, such as Netscape and Java, posed the
initial competitive threat in using interoperability to shift
computing away from the Windows PC (the ``middleware
threat'').
But, as recognized in District Court findings cited with
approval or undisturbed by the Court of Appeals, server-based
computing, which would shift many computing tasks from the Windows
PC to a server on the Internet, also poses a significant threat to
the Microsoft operating system monopoly. D.Ct. at
24-;27 (see CA at 52). By preventing full
interoperability, however, Microsoft can neutralize the server
threat.
Despite the government's claim that the proposed settlement
achieved ``seamless interoperability between Windows Operating
System Products and non-Microsoft servers on a network'' (CIS
at 38), the proposed settlement would, in reality, enable Microsoft
to withhold the disclosures necessary to
[[Page 28603]]
achieve interoperability and thus defeat this goal. The proposed
settlement would do nothing to achieve interoperability between a
non-Microsoft server operating system and Windows or IE. Instead,
the only disclosure requirements are both ineffectual and too
narrow: They apply only to PC middleware and certain client
protocols, disclosures which are insufficient, on their own, to
create interoperability between a PC and a server or among servers.
Thus, instead of preserving threats to the Microsoft monopoly from
all sources, the settlement gives Microsoft a free shot at disabling
server competition.
a. The Government's Original Remedy Required Broad And
Meaningful Interoperability Disclosure By Microsoft
During the initial remedy proceedings before the District Court,
the government recognized that new threats were emerging to
Microsoft's monopoly in the PC operating system market. Gov't D.Ct.
Memo at 29. The government recognized the likelihood that, in the
future, most computing will be done through networks and on servers
housed at remote locations, with personal computer use diminishing.
The government acknowledged that, as a result, software for
communicating with servers, operating systems for servers, and
middleware designed to function on servers, had become a principal
competitive threat to the Microsoft PC operating system monopoly.
Id.; see also Henderson Decl. 13-;16; Shapiro Decl.
at 20-;21.
The ``server threat'' arises from the following
circumstances, as the government recognizes. Instead of using an
expensive, ``intelligent PC'', which contains a Windows
operating system, a substantial hard drive and a powerful
microprocessor, consumers increasingly use simpler or smaller, more
convenient devices, such as cell phones, PDAs (such as
``Palm'' or ``Blackberry'' devices), TV-set-top
boxes, or ``dumb PCs,'' all of which are typically
equipped only with more basic (and often non-Microsoft) operating
systems, a browser, smaller (if any) hard drives, and a
microprocessor. D.Ct. at 22-;27; Henderson Decl.
13-;16, 91-;92; Shapiro Decl. at 3-;4.
The consumer will then use this device's browser to connect to the
network of servers on the Internet.
By accessing servers on the Internet, the consumer can perform
most of the same computing functions (access/browse the Internet;
word processing; e-mail; instant messaging, etc.) that are provided
by a Windows PC, but at lower cost and much greater convenience. For
example, under the PC computing model, to compose and spell-check a
document, the PC's processor is used to process the relevant
software program to perform the functions. Under the server-network
computing model, however, the same function (compose and spell-check
a document) is accomplished through the server, which processes the
relevant software program and then transmits the document back to
the PC. The PC operating system under this scenario does little more
than transmit and receive the data. The actual computing functions
are largely performed by the server's operating system and hardware.
Similarly, far more complex applications can be offered on the
Internet through high-powered servers effectively shared by
thousands or millions of consumers.
The government recognized the overriding importance of server
software and communications protocols in supporting the original
Final Judgment:
As computing continues to move off the desktop and into the
internet, middleware threats could develop on servers, in either
server operating systems or server applications. Microsoft cannot
defeat these threats by bundling its own version of such software
into its PC operating systems, but it could use its operating system
monopoly in other ways to crush any such middleware threats. For
example, Microsoft's new Windows 2000 operating system, to which
Microsoft intends to migrate its existing Windows users, is designed
with proprietary features and interfaces that enable Microsoft's
server operating systems to interoperate with PCs more effectively
than other server operating systems. If Microsoft were in a
competitive market, it would disclose its confidential interface
information to other server software developers so that their
complementary software would work optimally with, and thereby
enhance the value of, Microsoft's PC operating systems. But, if
faced with a middleware threat on the servers, Microsoft is likely
to continue to withhold that information from competitors in order
to protect its operating system monopoly. Gov't D.Ct. Memo at 29
(emphasis added).
The government's expert in the remedy proceedings underlined the
importance of the server-based computing model as a critical
emerging threat to Microsoft's PC operating system monopoly. Rebecca
Henderson, a professor from MIT with a doctorate in Business
Economics from Harvard University, testified:
Server-based computing could reduce the applications barrier to
entry in the PC operating system market. If server-based
applications are supported in a way that permits end-user access to
full-featured application functionality on a truly cross-platform
basis, users will be able to access them through any PC operating
system they choose. Indeed, server software already acts as cross-
platform middleware for a few network-centric applications. Web-
based e- mail programs, for example, can be hosted on almost any
server operating system and used to send e-mail to and from a wide
range of clients, including Windows PCs, handheld computers and
wireless phones. As the bandwidth available to PC consumers expands,
server software could become an increasingly attractive platform for
developers interested in writing full-featured applications for PC
owners. For example, an accounting package could be
``hosted'' on a web server. If it were designed to be
sufficiently cross-platform, and if technology permits, consumers
could access its functionality using either a Windows PC or an
alternative device.
Henderson Decl. 14-;15.
Microsoft recognizes the server threat to its PC operating
system monopoly. D.Ct. at 60. Its strategy has been to use its
monopoly control over the PC's operating system and IE to force
websites on the Internet to use Microsoft server operating systems,
even if they are otherwise not the most desirable choices. To do
this, Microsoft can withhold disclosure of communications interfaces
and protocols for IE, at the same time as it changes them from
previously disclosed interoperable formulations. The objective is to
make IE fully interoperable only with a Microsoft server operating
system, and to restrict server-to-server communication only to
Microsoft server operating systems. In addition, Microsoft can fail
to disclose to competitors the server protocols that facilitate full
interoperability between a Windows PC and a Microsoft server
operating system, or between servers. As a result, Microsoft's
server operating system will always interoperate better with a
Windows PC operating system or Microsoft server operating system
than any competitors' operating systems. These two actions,
taken together, will enable Microsoft server operating systems to
dominate the Internet, because website owners will need a server
that interoperates with the more than 90% of all Internet users that
use IE, while consumers will continue to buy the Windows PC
operating system because of the applications barrier to entry. In
this manner, Microsoft will easily defeat the threat that web-based
computing poses to the PC operating systems monopoly by dominating
server operating systems and server applications software. Any
``dumb PC,'' cell phone or handheld device, which relies
on a server on the Internet to perform the actual computing
functions, will either have to use Microsoft operating system
software or face elimination from the marketplace.
During the original remedy proceedings, the government's expert
economist, Carl Shapiro, explained the importance of a powerful
conduct remedy that would require Microsoft to provide timely
disclosure of all APIs, protocols and other technical information
necessary to allow all server operating systems to fully
interoperate with a Windows PC operating system and Microsoft
middleware, particularly IE:
Mandatory disclosure of interface information also will prevent
Microsoft from using its Windows monopoly power to gain control of
complementary applications and middleware... Two especially
important software products today that are complementary to the
Windows operating system on personal computers are operating systems
on handheld devices and operating systems on servers... Indeed, a
good case can be made that the most significant threat to Windows in
the next several years will come from client/server architectures.
Making sure that Microsoft cannot subvert this threat using
undisclosed proprietary interfaces is thus central to an effective
remedy in this case.
Shapiro Decl. at 20-;21 (emphasis added).
For this reason, the government proposed, and the District Court
granted a remedy, requiring disclosure of ``all APIs, technical
information and Communications Interfaces'' that enabled:
any Microsoft software installed on one computer (including but
not limited to server operating systems and operating system for
[[Page 28604]]
handheld devices) to interoperate with a Windows operating system
(or middleware distributed with such operating system) installed on
a Personal Computer.
Final Judgment 3(b)(iii).
The effect of this provision was to promote competition in the
PC operating system market by using interoperability disclosure to
support the server and middleware threats to Microsoft's monopoly.
These crucial interoperability disclosure provisions required full
disclosure of:
(1) all technical information, including both client protocols
and server protocols which allow a Windows PC and a Microsoft server
operating system to fully interoperate with each other; and
(2) all technical information that enables Microsoft Middleware,
such as IE, to fully interoperate with a Microsoft server operating
system.
Microsoft's claim that remedies which affect the PC/server and
server/server relationships are outside of the Sherman Act
2 monopolization claims before the Court is
insupportable. Defendant Microsoft Corporation's Remedial Proposal
at 6-;7 (Dec. 12, 2002) (brief filed in response to the
Plaintiff Litigating States'' Remedial Proposals). To the
contrary, both sides presented evidence on this issue in the prior
proceedings, and both this Court and the Court of Appeals were
particularly concerned to ensure that the nascent middleware threats
to Microsoft's PC operating system monopoly be protected from
further anticompetitive conduct. See, e.g., CA at 79 (``it
would be inimical to the purpose of the Sherman Act to allow
monopolists free reign to squash nascent, albeit unproven,
competitors at will--;particularly in industries marked by rapid
technological advance and frequent paradigm shifts''); D.Ct. at
24-;27, 56, 60.
Indeed, when Microsoft made the same argument during the
original remedy proceedings, the government tersely exposed its
fallacy:
Microsoft can hardly argue that client/server interoperability
issues are unrelated to the trial. In the first place, its own
expert, Dean Schmalensee, testified that control over the browser
could enable a firm to ``severely'' affect the
functionality of server applications... Second, having argued during
the trial that Microsoft lacked monopoly power in the operating-
systems market because of the future potential of server-based
applications, Microsoft can hardly contend now that it should be
free to frustrate the threat to the Windows monopoly posed by such
server-based applications by withholding critical information needed
for those applications to interoperate with Windows.
Gov't D.Ct. Reply Memo at 49 (internal citations omitted).
b. The Proposed Settlement's Interoperability Disclosure
Requirements Are Wholly Inadequate
The interoperability disclosure provision in the proposed
settlement is seriously deficient in the following ways: (1) no
interoperability disclosure protection is afforded to important
competitive threats to Microsoft's PC operating system monopoly,
including non-Microsoft operating systems for servers and embedded
devices (i.e., cell phones, PDAs, set-top boxes)\23\23; (2)
the technical information that is required to be disclosed is too
limited to be effective; (3) the timing of required disclosures is
either too late or too vague; and (4) the definitions of major terms
(API, operating system, middleware) would enable Microsoft to avoid
disclosure to competitors, by claiming certain middleware or
application products are part of the operating system.
---------------------------------------------------------------------------
\23\With regard to server interoperability, the proposed
settlement only requires ``client protocols'' to be
disclosed. As is fully explained below, to achieve full
interoperability between a PC (``client'') and a server,
there must be disclosure of both client and server protocols, so
that the server can accept and transmit data and services to the PC.
By disclosing only the client protocol, only one-half of the
transaction (PC to server) is achieved, thus defeating the server's
ability to fully interoperate with the PC. See pp. 70-;72
infra.
---------------------------------------------------------------------------
i. Important Areas Of Potential Competition In The Monopolized
Market Are Not Included In The Interoperability Disclosure Provision
The proposed settlement fails to provide essential disclosure of
technical information necessary to ensure interoperability in at
least four critical areas: (a) between Windows PC operating systems
and non-Microsoft server operating systems; (b) between Microsoft
middleware, particularly IE, and non-Microsoft server operating
systems; (c) between Microsoft and non-Microsoft server operating
systems; and (d) between Microsoft PC or server operating systems
and non-Microsoft embedded devices. The absence of such protection
effectively encourages Microsoft to dominate server operating
systems and software in order to protect its PC operating system
monopoly.
(a) The Proposed Settlement Will Not Achieve Server
Interoperability
Although the government continues to espouse the public interest
goal of ``seamless interoperability'' for servers, CIS at
38, the proposed settlement does not if fact achieve that result.
The failure to ensure this essential remedial goal contrasts sharply
with the District Court's findings of fact and conclusion of law,
which were entirely affirmed or undisturbed by the Court of Appeals,
establishing that Microsoft's conduct, in selectively disclosing or
entirely withholding such technical information, plainly violated
Sherman Act 2. CA at 71-;73; D.Ct. at
90-;92, 338-;40.
As late as November 2, 2001--;four days before it reached
the present settlement agreement with Microsoft--;the government
still insisted that server interoperability was essential to any
settlement. The government's settlement proposal on that date
expressly required server interoperability disclosure:
Microsoft shall make available for use by third parties, for the
sole purpose of interoperating with a Windows operating system
product ... any communications protocol that is... (i) implemented
in the Windows operating system product installed on a client
computer, and (ii) used to interoperate natively (i.e., without the
addition of software code to the client or server operating system
products) with Windows 2000 server products or products marketed as
its successors installed on a server computer.
Department of Justice, Proposed Final Judgment, Draft of
November 2, 2001 at III.E. (emphasis supplied)'
Pursuant to this provision, Microsoft would have been required to
disclose both its client protocols and the server protocols which
enable a PC and a server operating system to accept and transmit
data to each other?\24\
---------------------------------------------------------------------------
\24\A protocol is a piece of an operating system's
software code that allows the operating system to translate, and
thus understand, the language of another computer or server that is
attempting to transmit data. When a PC (``client'') and a
server are transmitting and accepting information or services
between each other over the internet, server protocols allow the
server operating system to accept and understand the information or
services being transmitted from the client. In other words, the
server protocols allow the server to transmit information to the PC
by converting the information from the server's computer language to
the PC's computer language. The client protocols perform the
opposite task, allowing the PC to fully interoperate with the
server. In order to process information from PC to server, and from
server to PC, it is essential that both server and client protocols
be provided. Without knowledge of the appropriate server protocols
necessary to interoperate with a Windows PC, an ISV cannot design an
operating system for a server which will properly interoperate with
the Windows PC operating system.
---------------------------------------------------------------------------
The proposed settlement, however, deleted the requirement that
server protocols be disclosed. This was accomplished by removing the
words ``or server'' from the provision quoted above. RPFJ
III (E), November 6, 2001. This directly contradicts
the view of the government's technical expert, who testified that if
Microsoft were able to withhold from disclosure the server
protocols:
[it] would give Microsoft the power to choose which server
operating system products could interoperate with Windows .... A
customer who felt compelled to buy client Windows Operating System
Products would therefore additionally be compelled, due to his
desire for interoperability, to buy his server Operating System
Products from Microsoft or another vendor to whom Microsoft chose to
disclose the new protocol. Microsoft's refusal to disclose the
[server protocol] would prevent some competing server Operating
System Products from interoperating fully with Windows, and thus
would put them at a significant disadvantage.
Felton Decl. 53-;57.
By removing the server protocol disclosure requirement, the
proposed settlement virtually ensures that non-Microsoft server
operating systems will never be viable, competitive alternatives to
the Windows PC operating system monopoly. The client protocols that
Microsoft is required to disclose will only allow the server to
receive data or services from the PC. The other half of the
transaction, whereby the server responds and sends data to the PC,
cannot be accomplished without the server protocols. As a result,
ISVs will not be able, on their own, to develop server operating
systems that can fully interoperate with Windows PC. The
government's expert has admitted that this eliminates the
possibility that non-Microsoft
[[Page 28605]]
servers would ever become a competitive threat to Microsoft's PC
operating system monopoly:
[T]he two provisions relating to the disclosure of APIs,
interfaces and technical information ... are exceptionally urgent
... [a]s long as Microsoft retains its monopoly power, the ability
to withhold information and to deny interoperability in this way
will be a fearsome threat. The development of server-based full-
featured PC applications, for example, would be completely crippled
if these applications could not be accessed from a Windows PC, or
could only be accessed in a disadvantaged way, since no one would be
willing to invest in building them. Requiring Microsoft to disclose
its interface information... provides a necessary check on
Microsoft's ability to exploit its illegally obtained position to
exclude competitors.
Henderson Decl. 115-;121 (emphasis added).
Quite simply, because Microsoft will not have to disclose any
server protocols, this disclosure provision will not achieve
``seamless interoperability'' between a Windows PC and a
non-Microsoft server operating system or aid in restoring even a
vestige of competition to the PC operating system market.
(b) The Settlement Fails To Require Disclosure To Enable
Interoperability Between Internet Explorer And Non-Microsoft Servers
During the original remedy proceedings the government
acknowledged the crucial importance of requiring full disclosure of
all technical information relevant to the interoperability between
Microsoft's middleware products, particularly IE, and server
operating systems.
As explained by a government expert, if Microsoft maintains
control over the browser-server interaction (as it would under the
proposed settlement), it can maintain its PC operating system
monopoly by foreclosing the ability of a web server to interoperate
with IE:
Owning the dominant browser gives Microsoft great influence over
the evolution of important Internet interfaces. As Paul Maritz
recognized, ``By controlling the client, you also control the
servers.'' GX 498, at MS980168614. See also GX279 (discussing
the role of standards in establishing Internet platform, Maritz
explained, ``The key is to win the client (patch up the server
later)''). This set of interfaces goes beyond the browser APIs
to which developers can directly write applications, to include the
set of interfaces that constitute the communications protocols
between the browser and the network. For information to be received
and viewed in Internet Explorer, the developer has to follow these
interfaces.
The ability to influence development of web-based applications
is a highly valuable tool for future anticompetitive campaigns
should Microsoft choose to mount them. As web-based applications
grow in importance, so does Microsoft's ability to steer them
towards being IE-centric, and, given its control over the browser-
to-operating system interface, Windows-centric as well.
Henderson Decl. 81-;86 (internal citations to trial record).
The proposed settlement, however, completely abandons the disclosure
provision necessary to prevent Microsoft from using its control of
IE to eliminate demand for non-Microsoft server operating systems as
a competitive alternative to Microsoft's PC operating system
monopoly.
Under the proposed settlement, Microsoft has no obligation
whatever to disclose any technical information--;APIs,
communications interfaces or otherwise--;that would permit a
non-Microsoft server operating system to interoperate with
Microsoft's Middleware, including IE. The only disclosure obligation
under the proposed settlement involving Microsoft Middleware
requires disclosure of APIs relevant to interoperability with a
``Windows Operating System Product,'' a term which is
defined to include only ``the software code...distributed
commercially by Microsoft for use with a personal computer.''
RPFJ III.D, VI.U (emphasis added). For example,
this provision would not require any disclosure for the purpose of
allowing competing server operating systems to interoperate with IE,
the very product that the Court of Appeals held was used by
Microsoft to illegally maintain its monopoly power. CA at
64-;68.
As a result, under the proposed settlement, only Microsoft
server operating systems will be guaranteed access to the
proprietary APIs and communications interfaces necessary for a
server to interoperate with IE. If a website owner purchases a non-
Microsoft server operating system, the more than 90% of consumers
who use IE on their Windows PC would be unable to access that
website unless Microsoft had agreed to separately license the
technical information required for interoperability.
Of equal significance is Microsoft's recent decision not to
distribute Java as part of Windows XP. Java had been included in
prior versions of Windows. Java is a software program that is an
open industry standard; it allows websites both to operate on
numerous non-Microsoft operating systems and to display rich colors
and graphics to enhance the website's appearance. CA at 74-;75;
D.Ct. at 386-;405. Approximately 50% of all
websites currently on the Internet, including SBC's website, are
Java-compatible. Microsoft dropped distribution of Java in favor of
promoting ActiveX, which is Microsoft's proprietary software that
competes with Java by allowing a web server to process an Internet-
based application in a fashion similar to Java. ActiveX is a
proprietary browser interface that is installed as part of the
software code for IE. As a result, the only way a non-Microsoft
server operating system can obtain the proprietary interfaces for
ActiveX (or for Internet Explorer generally) is through a license
from Microsoft. If Microsoft chooses to make IE's protocols a
completely undisclosed, proprietary standard, which it is free to do
under the proposed settlement, Microsoft's PC operating system
monopoly will be perpetuated, because the already formidable
applications barrier to entry will be increased, and the server
threat will be further diminished. This will occur as a result of
two interrelated effects. First, website owners will be forced to
purchase Microsoft server operating systems to ensure that their
website remains fully accessible by the more than 90% of consumers
who use IE. Second, for this reason among others, the vast majority
of applications that are already written exclusively to interoperate
with Windows will be increased, as ISVs' commercial need to
write their Internet-based applications to be compatible with IE and
ActiveX will increase. As time goes on, the number of servers which
interoperate with Java and other browsers will continue to fall.
Moreover, consumers who want to browse the Internet, that is, to
access what will become the overwhelming majority of websites run on
a Microsoft server operating system, will have to use IE and to get
it, they will need a Windows PC operating system or another device
that runs on Microsoft software. In the end, the prospect of
``dumb PCs,'' cell phones and handheld devices equipped
with non-Microsoft operating systems and browsers also will be
eliminated.
SBC's own website provides an example of the exclusionary effect
this lack of disclosure will have on non-Microsoft server operating
system. SBC uses non-Microsoft operating systems on its website
servers, and the website is designed to be compatible with Java.
Because Windows XP (unlike earlier Windows versions) does not
contain Java, when Windows XP users attempt to access SBC's website,
they receive a message that ``to display this page correctly,
you need to download and install the following components: Java
Virtual Machine.'' However, to make this (free) download on a
normal dial-up connection will take the consumer over 30 minutes in
normal conditions (i.e., low network congestion and latency), and an
hour or more during times of peak usage. Thus, by dropping Java from
Windows XP and failing to disclose its browser interfaces (which
would enable SBC to obtain programs that could achieve
``seamless interoperability'' with Windows XP), Microsoft
has compelled the consumer to undertake a confusing and lengthy
download process. This creates an anticompetitive barrier to
consumers' use of SBC's website and entrenches the Windows
monopoly.\25\
---------------------------------------------------------------------------
\25\In October 2001, Microsoft dispelled any doubt
whatever that it would use its control of Internet Explorer and
Microsoft server operating systems to exclude competing browsers,
when it blocked access to its MSN.com server for Netscape's and
Opera's competing browsers. See p. 80 infra.
---------------------------------------------------------------------------
(e) The Proposed Settlement Does Not Contain An Interoperabillty
Disclosure Provision To Cover Server-To-Server Communications
Another corollary to the potential transition from the PC to a
server-based computing environment is the need for a vastly
increased volume of server-to-server communication transmissions.
The proposed settlement contains no provision requiring disclosure
of any technical information whatever to facilitate such
communications--;``interoperability''--;between
Microsoft and non-Microsoft server operating systems. The government
offers no explanation for its absence, which will have
[[Page 28606]]
the predictable effect of further diminishing the server threat to
Microsoft's PC operating system monopoly, while also restraining
competition in the server operating system market itself. All of the
same deficiencies in interoperability discussed above with respect
to PCs and servers also apply to server-to-server communications as
well. For this reason, the same outcome is certain to occur: an
overwhelming percentage of servers on the Internet will be forced to
use a Microsoft operating system. If Microsoft is not required to
disclose any of the technical information necessary interoperate
with Microsoft's server operating system, the demand for non-
Microsoft server operating systems will be significantly reduced. As
a result, the Internet-based threat to Microsoft's PC operating
system monopoly will be neutralized.\26\
---------------------------------------------------------------------------
\26\The Litigating States' proposal properly
requires full disclosure of all technical information necessary to
design a non-Microsoft server operating system that would be fully
interoperable with a Microsoft server operating system. Litigating
States'' 4.
---------------------------------------------------------------------------
(d) The Proposed Settlement Does Not Contain Interoperability
Disclosure Provisions To Cover ``Embedded Devices''
Like a ``dumb PC,'' an ``embedded device''
(such as a cell phone, PDA or set-top box) also can provide a
viable, competitive alternative to a Windows PC. The government once
again admitted this in prior remedy proceedings when it included
embedded devices in the interoperability disclosure provisions:
It is also possible that some of the middleware now being
developed for alternative client devices--;such as the handheld
computer, the Personal Digital Assistant (PDA), the so-called
``Internet Appliance,'' or the wireless
telephone--;might one day attract developers in large numbers.
If ported to the PC, this middleware could then begin to erode the
applications barrier to entry to the PC operating system market.
Henderson Decl. 16. See Final Judgment (3)(b)(iii)
(requiting full disclosure of all technical information relevant to
interoperability between operating systems of handheld devices and
Windows PCs).
The government's position at the time rested squarely on
District Court findings that such devices could present an
alternative to a Windows PC in the future. D.Ct. at
22-;23. Those findings were not disturbed on appeal and remain
binding today. CA at 52 (handheld devices could, but do not yet,
perform enough functions to be an alternative to a Windows PC.)
In the proposed settlement, this essential salutary provision
has been removed without explanation by the government. The result
is to eliminate another potential threat to Microsoft's PC operating
system monopoly, while also giving Microsoft a significant advantage
in the closely connected market for operating systems for such
embedded devices.\27\
---------------------------------------------------------------------------
\27\The Litigating States' proposal justifiably
requires full disclosure of all technical information relevant to
the interoperability between a Microsoft PC or server operating
system and any embedded device. Litigating States''
4.
---------------------------------------------------------------------------
(e) The Technical Information That Is Required To Be Disclosed
Under The Proposed Settlement Is Insufficient To Achieve
Interoperability
Even in those situations where the proposed settlement does
require Microsoft to disclose certain technical information
(interoperability between Microsoft middleware and Windows PC
operating system; client protocols), the type and extent of the
disclosure is inadequate to promote competition, because it fails to
achieve the ``seamless interoperability'' that the
government admits is essential to provide an effective remedy for
Microsoft's antitrust violations.
While the government now claims to have achieved equal access to
the ``same interfaces and related information'' for non-
Microsoft and Microsoft middleware developers (CIS at 33), this is
not correct. Specifically, the proposed settlement only requires
disclosure of ``the APIs and related documentation'' used
by Microsoft Middleware to interoperate with a ``Windows
Operating System Product.'' RPFJ <III.D. This
limited disclosure is in stark contrast to the disclosure the
government sought, and obtained, in the Final Judgment. Final
Judgment 3(b). At that time, the government required
disclosure of ``all APIs, technical information and
communications interfaces'' to achieve interoperability. Id.
(emphasis added).
For example, by limiting disclosure to APIs, the government has
left out important additional technical information that is
indispensable for a middleware product to achieve ``seamless
interoperability'' with a Windows PC operating system. In
addition, the definition of what constitutes an ``API'' is
drawn too narrowly in the proposed settlement; it does not include
items like registry keys, file formats, communications protocols and
other necessary technical information that is critical for an ISV to
develop a middleware product that is fully interoperable. See RPFJ
VI.A. This stands in sharp contrast, once again, to
what the government advocated in the Final Judgment, when its own
expert explained that disclosure of all APIs, communications
interfaces and other related technical information was essential to
promote full interoperability. Felton Decl. 15-;28.
The government offers no explanation for its change of position. See
Final Judgment 7(b); Litigating States'
22(c).
The same deficient definitions apply to the type of technical
information that Microsoft must disclose to promote interoperability
between a non-Microsoft server operating system and a Windows PC
operating system. RPFJ III.E. Such disclosure is now
limited only to ``client protocols,'' while the Final
Judgment required disclosure of ``all APIs, Technical
Information and Communications Interfaces'' necessary to
achieve full interoperability. Final Judgment 3(b);
Litigating States' 4. The proposed settlement's
limited disclosure obligation has grave negative ramifications for
ISVs seeking to achieve full interoperability. First, as stated
above, both the client and server protocols are necessary to achieve
interoperability between a PC operating system and a server
operating system. Moreover, there is substantial additional
technical information that far exceeds a ``communications
protocol.'' Such additional information includes APIs, software
tools, file formats and other technical information without which a
non-Microsoft server operating system will never achieve
``seamless interoperability'' with a Windows PC, let alone
operate as well as a Microsoft server operating system.
The possibility that Microsoft will maintain its PC monopoly in
this manner is not hypothetical. In fact, in the absence of strong
remedial provisions, not only is Microsoft certain to use
disclosure, or the lack thereof, to create and maintain an advantage
over its competitors, but it has already used the very same control
over communications protocols and the like to disrupt competing
browsers' ability to communicate with its own servers over the
Internet. At the time of the release of Windows XP just last
October, Microsoft secretly changed the MSN web server program codes
to specifically prevent the competing browsers Netscape Navigator
and Opera from interoperating with the MSN web server.\28\ Browser
Bruiser, Chicago Sun Times, October 27, 2001, at 36
(``Microsoft's premiere web portal, MSN.com, denied entry to
millions of people who use alternative browser software such as
Opera and told them to get Microsoft's products instead.'');
MSN Shuts Out Other Browsers, Associated Press, October 28, 2001
(``Microsoft's premiere web portal, MSN.com, denied entry to
millions of people who use alternative browser software such as
Opera...The blockage coincided with Microsoft's showcase launch of
its Windows XP operating system. Instead of getting MSN's news,
games and shopping features, Opera users were given links to
download Microsoft's browsers.'').
---------------------------------------------------------------------------
\28\When browsers connect to a web server, they send
information identifying specifically which browser it is and the
capabilities of that browser. Programmers often code their web
servers to be aware of browser differences so that the web server
can provide a richer end-user experience. It is unusual, to say the
least, to use browser and web server capabilities in this way to
deny access.
---------------------------------------------------------------------------
(f) The Timing Of The Required Disclosure Under The Proposed
Settlement Will Impede, Not Promote, Competition
To restore competition in the PC operating system market, proper
timing is no less important than the substance of the required
disclosures. The District Court made multiple findings of fact,
affirmed by the Court of Appeals, which established that delayed
disclosure of technical information to achieve interoperability
effectively nullifies its value. D.Ct. at 338-;40; CA at
71-;73. The ``time to market'' in developing software
is of the utmost importance. Id. The ability of an ISV even to
attempt to compete with Microsoft is ``highly dependent''
on Microsoft's release of its technical information relevant to
interoperability. Id. Netscape learned this lesson in 1995 when
Microsoft, in the face of repeated demands from Netscape for
technical information regarding interoperability with Windows 95,
withheld this technical information from
[[Page 28607]]
Netscape for approximately three months. D.Ct. at
90-;92. While Netscape was waiting for this
information, Microsoft brought to market its competing
product--;Internet Explorer. Id. The result of this delay was to
destroy any fair competitive challenge Netscape might mount against
Internet Explorer. Id.
The government has previously acknowledged that the proper
timing of disclosure of technical information related to
interoperability is critical to restore competition to the PC
operating system market. Gov't D.Ct. Reply Memo at 21-;23. As a
result, the government sought provisions in the Final Judgment that
required the timing of all disclosures to be made when Microsoft
disclosed the information to its own developers, and well in advance
of when any new Windows product is brought to market. Final Judgment
3(b).
Having manipulated for its own competitive advantage the timing
of interoperability disclosures in the past, it is not surprising
that Microsoft demanded very liberal and vague timing in the
proposed settlement. The government, however, having litigated and
prevailed on the timing issue, now largely gives up. The proposed
settlement does not require the disclosure of technical information
related to interoperability of Microsoft Middleware products to
begin until the ``earlier of the release of Service Pack I for
Windows XP or twelve months after the submission of this Final
Judgment.'' RPFJ III.D. If Microsoft intends to
introduce a new Middleware Product, it does not have to disclose any
technical information related to interoperability until the
product's ``last major beta test.'' Id. All other
disclosures must be made in a ``Timely Manner,'' which is
defined as the ``time Microsoft first releases a beta test ...
that is distributed to 150,000 or more beta testers.'' Id.
VI.R.
Similarly, the disclosure of client protocols contained in the
Windows PC operating system are not required to begin until nine
months after the submission of the final judgment, and all
subsequent disclosures are not regulated as to time, and thus left
solely within the discretion of Microsoft. RPFJ III.E.
The inadequacy of these timing requirements is patent. There is
no conceivable justification, and none has been offered, for
delaying disclosure with respect to Microsoft's current products for
nine to twelve months from the date of the settlement. By
definition, Microsoft knows, and its programmers have access to,
current product information today. The delay built into the
settlement simply allows Microsoft time to exploit its proven
monopoly for another year so that Microsoft's products will have an
even greater advantage when disclosure finally begins.
With respect to new middleware products and others, the timing
of disclosure also fails to serve the public interest. Disclosure
for a new middleware product is not required until the new product's
``last major beta test'', which is also an undefined term.
RPFJ III.D. As to all other middleware disclosures,
Microsoft is free to decide when to conduct the required beta test
to 150,000 or more beta testers. RPFJ III.D. With
respect to the disclosure of client protocols, Microsoft is not
subject to any time limit whatever. RPFJ III.E. These
provisions effectively immunize continued anticompetitive conduct.
Microsoft is essentially given free rein to choose when it will be
most advantageous in terms of marketing its products to make the
required disclosures; and prior to disclosure it is free to develop
and position its products for maximum competitive advantage.
Once again, the CIS provides no explanation why Microsoft's
disclosure obligations should not commence immediately, and why at
all times thereafter, should not be made as soon as information is
available to Microsoft's own programmers. CIS at 34-;35. For
example, the ``beta test'' standard in the proposed
settlement is far too late to be competitively meaningful. A beta
test is one of the last steps taken by a software developer before
placing a new product on the market. It is often viewed as more of a
marketing tool (to create a ``buzz'' among technology
writers and other cognoscenti), rather than a true development step.
Thus, if Microsoft is allowed to wait until this point, it will be
able to do to other software developers exactly what it did to
Netscape in 1995--;ensure that a competing product is so late to
market that it faces an insurmountable barrier to overtake
Microsoft's lead. D.Ct. at 90-;92.
The Final Judgment and Litigating States' proposal are
much more rational, and likely to lead to meaningful disclosure that
would promote interoperability and competition. All disclosures
under the Final Judgment and Litigating States' proposal are
required to be made in a ``timely manner,'' which is
precisely defined as, at a minimum, the earliest of the following
times:
(i) When the information is disclosed to Microsoft's own
application developers;
(ii) When the information is used by Microsoft's ``own
platform software developers in software released by Microsoft in
alpha, beta release candidate, final or other form'';
(iii) When the information is disclosed to any third party; or
(iv) Within ninety days of the final release of the Windows
operating system product, but ``no less than five days after a
material change is made between the most recent beta for release
candidate version and the final release.''
Final Judgment 7(ee); Litigating States'
22(pp).
(g) Important Terms In The Proposed Settlement Are So Loosely
Defined That They Enable Microsoft To Avoid Disclosure
The definitions of important terms relevant to interoperability
are so vague that Microsoft can largely avoid its disclosure
obligations. Among other things, the proposed settlement's
definitions of ``Microsoft Middleware'' and ``Windows
Operating System Product'' give Microsoft the ability to
completely circumvent even the otherwise paltry disclosure
requirements. See pp. 36-;40, 42-;43 supra. Just as
important, the critical term ``interoperability'' is not
defined in the proposed settlement. It should be defined as the
ability of a system or product to work with other systems or
products in such a way as to effectively access, utilize and support
the full features and functions of one another. See Litigating
States' 22(q).
In addition, the definition of ``Windows Operating System
Product'' provides that ``[t]he software code that
comprises a Windows Operating System Product shall be determined by
Microsoft in its sole discretion.'' RPFJ VI.U
(emphasis supplied). Essentially, this provision grants Microsoft
the ability to avoid disclosure to competitors of technical
information--;even that necessary to achieve the government's
promised ``seamless interoperability''--;merely by
embedding a middleware product in the Windows PC operating system
code. Microsoft can then argue that the product at issue is not
middleware, but rather part of Windows, and thus outside all
disclosure obligations.
The definition of ``Microsoft Middleware''
demonstrates the intentional nature of the government's concession
on this point and serves no function other than to dilute the
effectiveness of the proposed settlement. That definition, which is
essentially the flip-side of the ``Operating System''
coin, also allows Microsoft the flexibility to define whatever it
wants to as middleware, by either not obtaining a trademark for the
product or by simply bundling it with the Windows PC operating
system. RPFJ VI.J. In either instance, the effect is
the same: Notwithstanding the conclusion of the District Court and
the Court of Appeals that Microsoft bound middleware to its
operating system for the purpose of defending its operating system
monopoly in violation of 2, the company will remain
free to continue the same conduct.
ii. The Mandatory Licensing Provisions Are Illusory
The proposed settlement provides that Microsoft must license to
its competitors the intellectual property fights for any technical
information it is required to disclose. The CIS explains that
``[t]he overarching goal of this section is to ensure that
Microsoft cannot use its intellectual property fights in such a way
that undermines the competitive value of its disclosure
obligations.'' CIS at 49. Limitations on Microsoft's licensing
obligations, however, make the provision's impact largely illusory.
Indeed, they may well benefit Microsoft to the exclusion of its
competitors and competition generally in the PC operating system
market.
First, Microsoft is permitted to charge a ``reasonable
royalty'' to any competitor who requests disclosure related to
interoperability. RPFJ III.I.1. This provision is
anticompetitive. On its face, it allows Microsoft to enjoy the
fruits (i.e., licensing royalties) of its proven illegal monopoly.
Moreover, it gives Microsoft the opportunity to use a
``royalty'' charge to control crucial technical
information in a way that restrains its competitors--;a practice
Microsoft has already shown a willingness to undertake.\29\ The
government earlier acknowledged that
[[Page 28608]]
these dangers can be avoided only by requiring any license to be
royalty-free:
---------------------------------------------------------------------------
\29\Under the proposed settlement, there is no practical
way for competitors who must pay the fee to challenge its
reasonableness.
The disclosure of APIs, Communications Interfaces and Technical
Information required by the Final Judgment will enable third parties
to make their products interoperate effectively with Windows,
thereby increasing the value of Windows as a platform ..... There is
thus no need or justification to charge a royalty for access to the
same information about interoperation with Microsoft Platform
Software on a Personal Computer that Microsoft's own developers
---------------------------------------------------------------------------
receive.
Gov't D.Ct. Sum. Resp. at 14.
The relevant case law also supports the position that royalty-
free licenses are necessary to prospectively remedy Microsoft's
illegal monopolization of the PC operating system market. See United
States v. General'' Elec. Co., 115 F. Supp. 835,844 (D.N.J.
1953) (royalty-free licenses an essential remedy to prevent a
continuance of monopoly). The government made this same legal point
when it recognized that the instant case is analogous to United
States v. Western Elec. Co., 569 F. Supp. 1057, 1082-;1091
(D.DC 1983), aff'd sub nom. California v. United States, 464 U.S.
1013 (1983), where compulsory, royalty-free, sublicensable licenses
were required to remedy past anti-competitive conduct. Gov't D.Ct.
Reply Memo at 27-;29. As the government pointed out, this
provision was one of several that insured that
``telecommunications [would] continue to operate in an
engineering sense as one national network.'' Id. at 29
(internal quotation marks omitted). The same functional
interoperability is necessary to ensure maximum innovation and
competition in all aspects of the computer industry.
Moreover, as in the AT&T case, whether royalty-free licenses
are necessary is not an issue of remedying a monopolist's past
anticompetitive use of its intellectual property per se, but rather
a matter of making sure that the relief granted (in this case,
disclosure of certain APIs and communications protocols) is not
impeded by onerous license terms. Thus, requiring royalty-free
licensing is merely in aid of a remedy for antitrust violations that
are not directly related to Microsoft's licensing of its
intellectual property.
The public interest also is not served by giving Microsoft the
tight to condition the grant of any license of its own software upon
the licensee's ``cross-licensing'' any intellectual
property rights it may have ``that are related to the
licensee's exercise of its tights'' under the settlement. RPFJ
III.I.5. It was established long ago that cross-license
requirements are inconsistent with restoring competition to a
monopolized market:
[A] provision for reciprocal licensing would tend to perpetuate
the situation of industry dominance by General Electric which the
decree is designed to end... Were General Electric granted the right
of reciprocity, since it would be the overwhelmingly largest source
from which to demand licenses, once again it would be in a position
of being able to channel all development through itself. Therefore
the proposal of General Electric for reciprocal licensing will be
declined.
General Elec. Co., 115 F. Supp at 847.
The government's present justification, that this provision is
necessary to ensure that Microsoft would not be exposed to
``infringement liability'' as a result of the
interoperability disclosures, is difficult to understand. CIS at 50.
No competitor should be forced to disclose its own proprietary
information in order to exercise rights put in place to restore
competition in a monopolized market. Again, the government does not
explain why it was wrong when it earlier concluded that such a
provision has no pro-competitive benefit:
There is no justification for requiting third parties to
disclose to Microsoft the APIs' and Communications Interfaces
in their products that interoperate with Windows. Microsoft has
monopoly power in the market for PC operating systems, and third-
party developers of middleware that might challenge that monopoly
are thus dependent on access to Windows APIs, Communications
Interfaces and Technical Information. Microsoft has previously
withheld access to APIs and interfaces to defeat such threats in the
past, and the restoration of competition requires that it not be
permitted to do so in the future. No comparable concern has been
raised in this case about access to information regarding third
parties' products. In any event, third parties that get access
to APIs, Communications Interfaces, and Technical Information are
doing so to create complements to Microsoft's operating system.
Gov't D.Ct. Sum. Resp. at 14-;15.
In addition, the disclosures required by cross-licensing would
enable Microsoft to get a jump on developing its own product to
compete with that which the licensee was forced to disclose. The
settlement would thereby further increase Microsoft's timing
advantage over its licensee in selling a new product. Nothing
requires giving a proven monopolist such a benefit.
iii. The Limitation Upon Disclosure Based On Alleged Security
Concerns Is A Massive Loophole
The provision in the proposed settlement that limits Microsoft's
interoperability disclosure obligations based on security
considerations is another loophole that Microsoft can use to justify
withholding crucial technical information. Under this provision, if
technical information would ``compromise the security of a
particular installation or group of installations of anti-piracy,
anti-virus, software licensing, digital rights management,
encryption or authentication systems, including without limitation,
keys, authorization tokens or enforcement criteria,'' it is
exempt from disclosure. RPFJ III.J.1. In addition,
Microsoft is also given the right to require that the following
conditions be met prior to licensing APIs or communications
protocols related to the foregoing subjects:
(i) that any licensee never have participated in software
counterfeiting or piracy, and never have willfully violated
intellectual property rights;
(ii) that the licensee have a ``reasonable business
need'' for the technical information, and the need must be
related to a product that is currently being planned or shipped;
(iii) that the licensee meet ``reasonable, objective
standards established by Microsoft for certifying the authenticity
and viability of its business''; and
(iv) that the licensee agree to submit any program using the
disclosed technical information to a third party, approved by
Microsoft, to ``ensure verification and compliance with
Microsoft specifications.'' RPFJ III.J.2.
The government did not permit any such ``security''
exception in its proposals for the Final Judgment. The government
now attempts to justify this provision as a ``narrow
exception'' that is necessary to maintain the integrity of the
security-related features of Windows. CIS at 10. To the contrary,
the broad language and significant discretion given to Microsoft
create loopholes for Microsoft to withhold information essential to
interoperability from disclosure generally or from specific rivals
it wishes to prejudice.
First, virtually all APIs, communications interfaces or other
technical information that are relevant to interoperability, on some
level will perform ``authentication'' or
``encryption'' functions related to the security of an
operating system. Accordingly, the allegedly ``narrow''
security exception in reality gives Microsoft a virtual carte
blanche to withhold information necessary for interoperability,
simply by citing this section and claiming the code at issue
provides ``authentication'' or ``encryption''
functions.
The language requiring that a person seeking disclosure must
meet ``reasonable, objective standards established by Microsoft
for certifying the authenticity and viability of its business''
invites abuse by Microsoft. RPFJ III.J.2.c (emphasis
added). For example, Microsoft could exercise its veto power over a
disclosure request from an open source developer, on the ground that
Microsoft does not consider ``its business'' to be
``authentic'' or ``viable''. The open source
community typically operates on a not-for-profit basis, and has long
been a competitive adversary of Microsoft. Rebecca Buckman,
Microsoft is Suing Linux Start-up Over Lindows Name, Wall Street
Journal, December 24, 2001 (Microsoft brings trademark action
against open source operating system developer); Lee Gomes, Linux
Campaign Is An Uphill Battle For Microsoft, Wall Street Journal,
June 14, 2001 (``A Microsoft Corp. effort to vilify Linux and
other open-source software appears to be backfiring ... Microsoft
Chief Executive Steve Ballmer ... [called] Linux ``a cancer
that attaches itself in an intellectual property sense to everything
it touches.''); Byron Acohido, Microsoft Memo to Staff: Clobber
Linux, USA Today, Jan. 4, 2002 (``Microsoft is escalating its
war against Linux.'').
Similarly, the requirement that the prospective licensee have a
``reasonable business need'' for the information also
gives Microsoft anticompetitive powers. Microsoft could dispute the
asserted ``need'' or use to its own competitive advantage
the information that licensees would presumably submit to it to
demonstrate their ``need,'' since the provision
effectively gives
[[Page 28609]]
Microsoft advance notice of its competitors' new products. For
this reason, the provision will discourage competitors from even
exercising disclosure rights. Finally, Microsoft is given the
gratuitous fight to require all competitors' programs that use
Microsoft's APIs to be verified by a third party, who is
``approved by Microsoft,'' to ensure compliance with
``Microsoft's specifications for use of the API or
interface.'' RPFJ III.J.2.d.
Microsoft's alleged concern for security is a pretext to create
a loophole, as well as to allow Microsoft to obtain an unwarranted
advantage by having early access to its competitors' trade
secrets, The fact that certain code may provide a security function
is not a legitimate reason to withhold disclosure. Although
Microsoft has not been required to license this information in the
past, its software security record is arguably one of the worst in
the industry. See, e.g., Wayne Epperson, NT Insurance at a Premium,
HostingTech (August 2001), at www.hostingtech.com/security/
01_08_nt. (reporting that insurer J.S. Wurzler
Underwriting Managers had discovered ``that clients who used
Microsoft Windows NT software in their Internet operations were at a
greater risk of loss to computer hackers than were the insured Unix
or Linux users .... After 5 months of analysis, Wurzler Underwriting
Managers made the decision to charge its NT clients an extra premium
for insurance coverage.''). On the other hand, several of the
most effective security programs, such as Kerberos and ``Pretty
Good Privacy,'' are available on an open-source basis and
freely accessible by the public. These examples prove that even full
public disclosure is not inimical to security. What disclosure does
prevent, however, is the exercise of monopoly power. For purposes of
this proceeding, therefore, the ``security'' loopholes are
not in the public interest.
3. The Proposed Settlement Fails To Remedy The Proven Pattern Of
Unlawful Retaliation, Inducements, And Exclusive Dealing
Arrangements Used By Microsoft To Maintain Its Monopoly
As determined by the District Court in findings upheld by the
Court of Appeals, Microsoft threatened to and did withhold critical
technical information from software developers; Microsoft provided
or withheld financial benefits depending on a party's willingness to
aid in its anticompetitive campaign; and Microsoft contractually
prohibited third parties from distributing competing software. CA at
71-;73, 76-;77. Yet, the proposed settlement fails in many
respects to protect third parties from new versions of such past
conduct which may be used by Microsoft to protect its operating
system monopoly.
In earlier proceedings, the government recognized that any
remedy must be ``directed towards future competition and
innovation,'' and that while the remedy was based on historical
experience, the analysis was ``done on a forward-looking
basis.'' See Shapiro Decl. at 2. The government further
acknowledged that in this fast-moving industry, any remedial conduct
provisions must ``be broad enough to prevent Microsoft from
engaging in a number of categories of anticompetitive tactics in the
future, precisely because the specific tactics that Microsoft might
employ in the future are hard to predict today in the face of
changing products and technology.'' Id. (emphasis in original)
Having recognized these elements as essential to any remedy that
would serve the public interest, the government now proposes to
settle on terms that do virtually nothing to anticipate and prohibit
new forms of exclusion. Indeed, in many instances, the government
has given up or severely limited provisions in the original Final
Judgment that were fully justified by the Court of Appeals'
affirmance. On a number of such issues, the proposed settlement
accepts positions that Microsoft sought to include in the Final
Judgment, but the government then specifically rejected. The
government rejected Microsoft's proposals precisely because they
``consist[ed] largely of changes that would create loopholes
and permit Microsoft to continue to engage in anticompetitive
practices like those found by the Court or otherwise to frustrate or
undermine the purposes of the Final Judgment.'' Gov't D.Ct.
Sum. Resp. at 6. However, the recent CIS does not attempt to justify
the government's acquiescence in what were once viewed as
``loopholes'' and a license to resume
``anticompetitive practices.''
a. The Government's Settlement Substitutes Weak And Narrow
Protections Of Third Parties For The Strong And Broad Provisions
Justified By Microsoft's Conduct s
The Court of Appeals held that Microsoft had engaged in
exclusionary acts and threats of retaliation in violation of
2. CA at 73, 77-;78. In its efforts to promote IE
and restrict the distribution of Navigator, Microsoft successfully
made threats against Apple. To halt the development of cross-
platform interfaces for Java, Microsoft threatened to retaliate
against Intel. Microsoft also made threats and retaliated against
others who posed potential threats to its monopoly. D.Ct. at
83-;84, 91, 101, 102.
The government has recognized the established and urgent need to
prevent Microsoft from engaging in acts or threats of retaliation.
The original Final Judgment prohibited Microsoft from
``tak[ing] or threaten[ing] any action [that] adversely
affect[s] any OEM... based directly or indirectly, in whole or in
part, on any actual or contemplated action by that OEM to use,
distribute, promote, license, develop, produce or sell any product
or service that competes with any Microsoft product or
service.'' Final Judgment 3(a)(i). The Final
Judgment further prohibited Microsoft from ``tak[ing] or
threaten[ing] any action affecting any ISV or IHV... based directly
or indirectly, in whole or in part, on any actual or contemplated
action by the ISV or IHV to use, distribute, promote or support any
Microsoft product or service, or develop, use, distribute, promote,
or support any software that runs on non-Microsoft Middleware or a
non-Microsoft Operating System or that competes with any Microsoft
product or service.'' Final Judgment 213(d)(i) and
3(d)(ii).
With respect to OEMs, the government recognized that Microsoft's
retaliatory actions ``highlight[] the potential for misuse of
monopoly power that must be prevented if potential rivals to Windows
and new innovations in software can be expected to emerge.''
Gov't D.Ct. Memo at 38. The government specifically admitted that
the broad anti-retaliation provision was needed ``both to
prevent subtle or varied forms of coercion and to avoid difficulties
in determining the scope of the restriction in an enforcement
proceeding.'' Id. at 38-;39.
With respect to banning retaliation against ISVs and IHVs, the
government said it was necessary to ``ensure that Microsoft
does not use its operating system monopoly to nip new competitive
threats in the bud.'' Gov't D.Ct. Memo at 41. The provision was
a ``safeguard to prevent Microsoft's continued use of the wide
array of opportunities presented by its monopoly position to bribe
and coerce third parties to favor its own products and exclude
others.'' Gov't D.Ct. Reply Memo at 55.
Moreover, because Microsoft repeatedly sought anticompetitive
agreements, such as its attempted market allocation agreements with
Netscape and Intel, the Final Judgment included a provision that
flatly prohibited agreements that limit competition (Final Judgment
3(h)) ``to ensure that the defendant will be
unable to repeat its unlawful conduct.'' Gov't D.Ct. Sum. Resp.
at 17. ``Prohibiting anticompetitive activity that could stifle
the emergence of other forms of middleware as potential platforms is
necessary both to prevent recurrence of past misconduct and to
restore competitive conditions.'' Gov't D.Ct. Reply Memo at 65.
Even today, the government recognizes the need to prohibit
retaliation based on the specific findings of illegal conduct upheld
by the Court of Appeals. In its attempts ``to protect the
applications barrier to entry, Microsoft embarked on a multifaceted
campaign to maximize [IE]'s share of usage and to minimize
Navigator's.'' CIS at 13. Not content to merely develop its own
browser, ``Microsoft decided to constrict Netscape's access to
the two distribution channels that led most efficiently to browser
usage; installation by OEMs on new personal computers and
distribution by [IAPs].'' Id. ``To ensure that developers
would not Comments of SBC Communications Inc. view Navigator as
truly cross-platform middleware,'' Microsoft also pressured
Apple ``to make Navigator less readily accessible on Apple
personal computers.'' CIS at 14.
Additionally, as part of ``its effort to hamper
distribution of Navigator and to discourage the development of
software that used non-Microsoft technology, Microsoft also targeted
[ISVs] by contractually requiring ISVs to use [IE]-specific
technologies in return for timely and commercially necessary
technical information about Windows, and precluded important ISVs
from distributing Navigator with their products.'' CIS at
14-;15. Ultimately, ``Microsoft's actions succeeded in
eliminating the threat that the Navigator browser posed to
Microsoft's operating system monopoly... Navigator lost its ability
to become the standard software for browsing the Web because
Microsoft had successfully--;and illegally--;excluded
Navigator from that status.'' CIS at 15.
[[Page 28610]]
The proposed settlement (RPFJ III.A,F) fails
to implement the procompetitive goals that the government has
repeatedly expressed, and substitutes weak and narrow protections
for broad prohibitions to interdict new forms of exclusionary
conduct adopted by Microsoft in response to new forms of
competition.
i. The Range Of Parties Protected From ``Retaliation''
Is Too Limited
The settlement would only protect OEMs, ISVs and IHVs against
``retaliation.'' Microsoft's record of retaliatory
conduct, however, demonstrates that the ban against retaliation must
apply to all third parties.\30\ Microsoft has demonstrated that it
will take any action necessary against any entity that poses a
threat to its monopoly, by making threats, offering inducements,
coercing or contractually restricting others. The government offers
no justification whatever, let alone any persuasive reason, to limit
the types of third-parties against which Microsoft cannot engage in
unlawful retaliation. The settlement's failure to ban retaliation
broadly is all the more troubling because this provision does not
impose any affirmative duties on Microsoft. The only
``burden'' is that Microsoft must refrain from punishing
those who might challenge Microsoft's illegal monopoly.
---------------------------------------------------------------------------
\30\The listing of categories of protected parties,
instead of applying the ban to all third parties, also presents a
significant risk of omitting some competitors (e.g., SBC and Sun
Microsystems) from the decree's protection because their businesses
do not fit neatly into any standard category.
---------------------------------------------------------------------------
ii. ``Retaliation'' Is Not Defined
The proposed settlement states that Microsoft ``shall not
retaliate,'' but never defines ``retaliation.''
Although the government stated that its intention was to
``prevent subtle or varied forms of coercion and to avoid
difficulties in determining the scope of the restriction in an
enforcement proceeding'' (Gov't D.Ct. Memo at 38-;39), the
vague language of the settlement fails to meet that goal. Without a
definition of ``retaliate,'' such as a prohibition against
``taking or threatening adverse actions'' (see Final
Judgment 3(a)(i), 3(d)), Microsoft will be free
to argue that no violation has been established on a particular set
of facts. Given the extraordinary record of Microsoft's ingenuity in
abusing its monopoly power, any definitional doubt must be resolved
against the wrongdoer by imposing a broad definition of
``retaliate.''
Moreover, with respect to OEMs, Microsoft is only prohibited
from ``retaliating against an OEM by altering Microsoft's
commercial relations with that OEM or by withholding newly
introduced forms of non-monetary Consideration.'' See RPFJ
III.A (emphasis added). The use of the words
``newly introduced'' is ambiguous in that it suggests that
Microsoft is permitted to withhold existing forms of non-monetary
compensation. The CIS offers no explanation for this ambiguity
concerning whether Microsoft may continue to engage in conduct
previously adjudged illegal. CIS at 25-;26.
iii.The Party Injured By Retaliation Must Prove Causation
The proposed settlement too narrowly limits the type of conduct
by third parties for which Microsoft may not
``retaliate.'' It only prohibits ``retaliation''
that occurs ``because'' of conduct by the OEM, ISV or IHV.
By imposing a causation requirement on the injured party, the
government again gives a proven wrongdoer the benefit of a doubt to
which it is not entitled. The prior Final Judgment struck the
correct balance by prohibiting any adverse action by Microsoft based
directly or indirectly on any actual or contemplated action by the
protected party. Final Judgment 3(a)(i), 3(d);
see also Litigating States' 8.
iv. Retaliation Not Involving Windows Or Middleware Is Allowed
The proposed settlement's ban on ``retaliation''
currently only applies to a protected party where it is developing,
distributing, promoting or using products that compete with
Microsoft Platform Software or middleware.\31\ Given the multitude
of ways in which new threats can (and did) develop to contest the
Windows operating system, the ban on retaliation will not be truly
effective unless it protects any action or contemplated action
involving products or services that compete with any Microsoft
products or services.
---------------------------------------------------------------------------
\31\Microsoft Platform Software is defined as Microsoft
Middleware and the Windows Operating System. The limitations of
those defined terms which, among other things, exclude applications
(including applications on Internet-based servers that would
threaten the Windows monopoly), render the ``retaliation''
ban far too narrow. See pp. 36-;40, 42-;43 infra.
---------------------------------------------------------------------------
v. Loopholes Vitiate Even The Existing Limitations
The settlement contains broad savings clauses and exceptions
that give Microsoft loopholes for abuse and are not justified by the
Court of Appeals' findings. The OEM retaliation provision permits
Microsoft to provide ``Consideration'' to any OEM with
respect to any Microsoft product or service if the
``Consideration is commensurate with the absolute level or
amount of that OEM's development, distribution, promotion, or
licensing of that Microsoft product or service.'' RPFJ
III.A. Similarly, Microsoft may enter agreements with
ISVs limiting their ability to develop, promote or distribute
competing software, if the limitations are ``reasonably
necessary to and of reasonable scope and duration in relation to a
bona fide contractual obligation of the ISV to use, distribute or
promote any Microsoft software or develop software for, or in
conjunction with, Microsoft.'' RPFJ HI F.2.
These vague provisions are an invitation for abuse. Microsoft
has repeatedly used these very practices to maintain an illegal
monopoly for over a decade. Under these circumstances, a broad
prohibition that puts the burden entirely on Microsoft to prove the
bona fides of any ``consideration'' or exclusivity is not
only appropriate, but essential to revive competition.
vi. Unnecessary And Ambiguous Savings Clauses Undermine The
Decree
The retaliation provisions also include broad savings clauses
that provide that nothing in the provisions ``prohibit
Microsoft from enforcing any provision of any agreement with any
[OEM, ISV or IHV] or any intellectual property right, that is not
inconsistent'' with the settlement. RPFJ
III. A and III. F. 3. Given the ambiguities in
the settlement, this loophole, too, will invite aggressive
interpretation by Microsoft, and further litigation.
vii. There Is No Prohibition On Agreements Limiting Competition
The provision in the Final Judgment banning agreements to limit
competition (Section 3(h)) has been completely eliminated, leaving
Microsoft free to seek to enter market allocation agreements such as
the ones it proposed to enter with Netscape and Intel. D.Ct. at
83-;84, 97, 101. The proposed settlement
(III.G) only prohibits Microsoft from entering into
agreements with certain entities to use or distribute Microsoft
Platform Software exclusively or in fixed percentages. There is no
provision that limits Microsoft's ability to enter into agreements
with competitors providing that they refrain from developing or
distributing products that compete with the Windows operating system
or a Microsoft middleware product. This CIS does not explain this
glaring omission.
viii. There Is No Protection Against Retaliation For
Participating In This Lawsuit
Nothing in the proposed settlement protects individuals or
entities from retaliation by Microsoft for participating or
cooperating in this litigation. In a letter to the Senate Judiciary
Committee, former Solicitor General Robert H. Bork expressed the
realistic concern that ``any potential witness with knowledge
of anticompetitive conduct in a monopolized market has to weigh the
potential benefit of his or her testimony against the likely
response of the defendant monopolist. The [government's] proposed
meaningless remedy would insure that no witness would ever testify
against Microsoft in any future enforcement action.'' See
Letter from Robert H. Bork to Senate Judiciary Committee of 12/11/
01, at 4. Again, the CIS does not address this issue of obvious
concern, given Microsoft's track record of anticompetitive abuse.
b. The Proposed Uniform Licensing To OEMs Is Insufficient
The District Court made findings of fact, which were not
questioned by the Court of Appeals, that provide examples of
incentives and threats used by Microsoft to induce OEMs to promote
IE and not pre-install or promote Navigator. Thus, Microsoft gave
reductions in price to OEMs who set IE as the default browser on
their PC systems; Microsoft gave further reductions to OEMs who
displayed IE logos and links on their home page; and Microsoft gave
OEMs millions of dollars in co-marketing funds in exchange for
carrying out other promotional activities for IE. D.Ct. at
231.
The original Final Judgment contained a strong ban on
discriminatory license terms. It compelled Microsoft to license
Windows to all covered OEMs on uniform terms and prohibited
Microsoft from offering market development allowances or discounts.
Final Judgment 3(a)(ii). Microsoft was further required
to give OEMs equal access to, inter alia, licensing terms,
discounts, technical and marketing support and product and technical
information; and to give written notice and an opportunity to cure
before terminating an OEM's license. Id.
[[Page 28611]]
The government recognized the necessity for this provision
requiring ``transparent and uniform pricing to the largest
OEMs... so that Microsoft cannot retaliate against an OEM for
supporting non-Microsoft software.'' Gov't D.Ct. Memo at 39.
Uniform terms and pricing were also seen as necessary to
``terminate[] Microsoft's practice of charging substantially
different prices for Windows licenses to reward cooperative OEMs,
effected in part by its market development allowances, and will thus
make it easier for OEMs to promote non-Microsoft products in
response to consumer demand.'' Id. The government found that
this uniformity was ``necessary to prevent Microsoft from
employing the myriad forms of coercion and reward that'' have
been held to injure competition. Gov't D.Ct. Reply Memo at
43-;44. ``Such coercion is difficult to detect, and the
mere threat of its use may be sufficient to accomplish the desired,
anticompetitive result.'' Id. at 44.
In the context of the present settlement, the government
continues to define as a ``critical'' objective ensuring
that OEMs are truly ``free to choose to distribute and promote
middleware without interference from Microsoft.'' CIS at 25. It
recognizes that Windows'' license royalties and terms are
``inherently complex and easy for Microsoft to use to affect
OEMs'' behavior, including what software the OEMs will offer to
their customers.'' CIS at 28. By purportedly requiring uniform
licensing, the govemment says that the proposed settlement
eliminates ``any opportunity for Microsoft to set a particular
OEM's royalty or license terms as a way of inducing that OEM to
decline to promote non-Microsoft software or retaliating against
that OEM for its choices to promote non-Microsoft software.''
CIS at 28. The government's stated goal is ensuring ``that OEMs
can make their own independent choices.'' CIS at 28.
Here, as in many other respects, the proposed settlement fails
to fulfill the government's stated objectives.
i. Allowing ``Market Development Allowances'' Invites
Evasion
Unlike the Final Judgment (3(a)(ii)), which
prohibited market development allowances (``MDAs'')
outright, the proposed settlement would permit MDAs (RPFJ
III.3.B3), if certain restrictions are met, despite the
fact that MDAs have been repeatedly used by Microsoft to induce OEMs
to take actions that protect Microsoft's monopoly. As the government
earlier acknowledged, making any MDAs permissible creates a loophole
that will allow the very discrimination against OEMs that the
provision is intended to prevent. See Gov't D.Ct. Sum. Resp. at 10
(the use of undefined and unbounded ``objective'' pricing
criteria will permit Microsoft to reward or punish OEMs by charging
them different prices).
ii. Microsoft Is Allowed To Keep License Terms Secret
The proposed settlement does not require that Microsoft provide
equal access to licensing terms, discounts, technical support, etc.
Without this information, OEMs cannot fairly negotiate license
terms. In the current market, Microsoft offers significant discounts
to OEMs that take the entire Windows package; those discounts enable
the OEMs to be competitive with other PC manufacturers. However, if
an OEM tries to negotiate anything out of the package, Microsoft
significantly increases the price, making the OEM non-competitive.
OEMs do not know what terms are negotiable and are afraid to
negotiate aggressively out of fear they will be punished by
Microsoft.
For this reason, when Microsoft previously requested deletion of
the equal access provision, the government rejected the idea because
it ``would allow [Microsoft] to reward or punish Covered OEMs
with different Windows prices and non-price licensing terms and
conditions and thus to evade the purpose of the Final
Judgment.'' See Gov't D.Ct. Sum. Resp. at 10. Moreover, the
government's view then was that ``the burden should not be on
OEMs to know of and affirmatively seek out equal treatment;
Microsoft could take advantage of a Covered OEM's ignorance of what
has been provided to other Covered OEMs to reward or punish that OEM
and thus to evade the purposes of the Final Judgment.'' Id. at
10-;11. The government provides no satisfactory rationale for
changing that view.
iii. There Is No Independent Verification Of
``Volume'' Discounts
The proposed settlement allows Microsoft to provide reasonable
volume discounts based upon the actual volume of licenses. (RPFJ
III.B.2) Unless the provision requires that the volume
discounts be based on the independently determined actual number of
shipments, however, Microsoft will continue to have the power that
it exercised in the past to manipulate discounts.
iv. License Terminations Without Cause Are Allowed
The proposed settlement creates an unnecessary exception to the
written notice requirement for termination of OEM licenses. It
provides that Microsoft need not provide notice or opportunity to
cure if Microsoft has given two prior written notices. This
exception invites Microsoft to abuse the notice provision and then
arbitrarily revoke an OEM's license. Moreover, Microsoft is not even
required to show ``good cause'' for termination. Again,
the government provides no rationale why a proven monopolist should
be given any such advantages.
c. The Proposed Settlement Fails To Address Exclusive Dealing
Adequately
The Court of Appeals held that Microsoft's exclusive contracts
with IAPs are exclusionary devices in violation of 2.
CA at 71. By ensuring that the vast majority of IAP subscribers were
offered IE as their default browser or as the only browser,
Microsoft's deals with IAPs had a significant effect in maintaining
its monopoly by keeping usage of Navigator below the critical level
necessary for it or any other rival to threaten Microsoft's
monopoly. CA at 71.
In addition to the evidence specifically relied on by the Court
of Appeals, the District Court made findings, not reversed, of other
unlawful exclusive agreements. For example, in exchange for an
agreement by IAPs to promote and distribute IE preferentially over
Navigator and to convert existing subscribers from Navigator to IE,
Microsoft gave fourteen IAPs placement in its Windows Referral
Server. D.Ct. at 255,256. Microsoft also entered into
agreements with AT&T, WorldNet, Prodigy and CompuServe limiting
their ability to promote non-Microsoft browsers. D.Ct. at 305.
The Court of Appeals also held that Microsoft's illegal
agreements with ISVs further foreclosed rival browsers from the
market. CA at 72, 76. Microsoft entered dozens of ``First
Wave'' agreements with ISVs, promising to give them
preferential support in using Windows in exchange for ISVs agreeing
to use IE as the default browser in any software they developed. The
``First Wave'' agreements with ISVs also required the ISVs
to use Microsoft's JVM rather than Sun's JVM. This directly
protected Microsoft's monopoly from the middleware threat. CA at 76.
To redress these exclusionary agreements, the government,
earlier in this case, advocated a general and broad prohibition
against any and all manner of exclusive dealing by Microsoft. In the
Final Judgment, Microsoft was generally prohibited from offering a
third party any consideration in exchange for that party's agreement
to restrict development, production, distribution, promotion or use
of, or payment for, any non-Microsoft Platform Software;
distributing, promoting or using any Microsoft Platform Software
exclusively; degrading the performance of any non-Microsoft Platform
Software; and with respect to IAPs or ICPs, distributing, promoting
or using Microsoft software in exchange for placement with respect
to any aspect of a Windows Operating System. Final Judgment
3(e).
The government recognized that such a ban was necessary because
Microsoft had ``coerced and bribed'' third parties into
becoming, willingly or unwillingly, participants in strengthening
the applications barrier to entry. Gov't D.Ct. Memo at 41. The
government stated that to prevent recurrence, Microsoft had to be
barred from any exclusive dealing or percentage contracts that
require a third party to limit its dealings in, or to degrade the
performance of, non-Microsoft products, to deal solely in Microsoft
software, or, in the case of IAPs or ICPs, to exchange promotion of
Microsoft products for placement in the Windows operating system.
Id. Significantly, the government advocated a general ban because
Microsoft had dealings with a wide range of companies and because
``it is difficult to predict precisely which trading partners
Microsoft might otherwise seek to tie up under exclusive
arrangements in the next several years.'' Shapiro Decl. at 19.
Only a general ban on exclusionary contracts would ``serve to
lower entry barriers more effectively than would more limited
provisions directed at specific categories of trading
partners.'' Id.
In the CIS, the government continues to recognize the necessity
of preventing ``Microsoft from using either money or the wide
range of commercial blandishments at its disposal.., to hinder the
development and adoption of products that, over time, could emerge
as potential platform threats to the Windows monopoly.'' CIS at
42. However, the exclusive dealing provision in the proposed
settlement (RPFJ III. G) fails to
[[Page 28612]]
meet the goals that the government recognizes are essential. Nor
will it prevent Microsoft from engaging in the same types of conduct
that were found to be unlawful.
i. The Exclusive Dealing Prohibition Is Limited To Identified
Parties Only
The provision is limited to the listed entities (IAP, ICP, ISV,
IHV or OEM), but should be extended to all third parties. The
government has specifically acknowledged that a ``general
ban'' is necessary precisely because it is too difficult to
predict which entities Microsoft might seek to tie up under
exclusive arrangements in the next several years. Only a general ban
may effectively lower entry barriers, as compared to ``more
limited provisions directed at specific categories of trading
partners.'' Shapiro Decl. at 19.
ii. Paying Third Parties To Refrain From Using Non-Microsoft
Products Is Allowed
The proposed settlement only prohibits Microsoft from entering
into agreements with certain third parties that grant consideration
on the condition that the entity ``distributes, promotes, uses,
or supports, exclusively or in a fixed percentage, any Microsoft
Platform Software.'' RPFJ III.G.1. The Final
Judgment prohibited Microsoft from entering into an agreement with
any third party that grants consideration to ``distribute,
promote or use any Microsoft Platform Software exclusively''
(Final Judgment 3(e)(ii) and ``to restrict its
development, production, distribution, promotion or use of, or
payment for, any non- Microsoft Platform Software'' (Final
Judgment 3(e)(i)). Microsoft attempted to delete the
provision that prohibited agreements with a third party to restrict
the development, production, distribution, promotion or use of non-
Microsoft Platform software, but the government rejected the
proposal. See Microsoft D.Ct. Com. at 12.
The proposed settlement does not prohibit Microsoft from
granting consideration to a party that agrees to refrain from using
or distributing products or services that compete with
Microsoft.\321\ RPFJ III.G.1. Microsoft would thus be
allowed to grant consideration (in the form of money, technical
information or support, or otherwise) in exchange for the party's
agreement not to use or distribute a competing product. Such an
agreement would be the functional equivalent of the ``First
Wave'' agreements with ISVs found to be illegally exclusionary
by the Court of Appeals. The CIS does not articulate a satisfactory
basis for omitting from the settlement a prohibition on the types of
actions that were adjudged illegal.
---------------------------------------------------------------------------
\32\The proposed settlement does purport to limit
Microsoft's ability to enter into agreements with ISVs which require
the ISV to refrain from ``developing, using, distributing, or
promoting any software that competes with Microsoft Platform
Software.'' RPFJ III.F.2. However, as discussed
supra at pp. 97-;98, that same section creates an exception
that permits such agreements with ISVs if they are in relation
``to a bona fide contractual obligation of the ISV.''
Therefore, even as to ISVs, the restriction is rendered potentially
meaningless.
---------------------------------------------------------------------------
iii. Microsoft Can Pay Others To Distribute Its Monopoly
Software
Under the proposed settlement, Microsoft is permitted to enter
into agreements with IAPs and ICPs that condition their placement in
Windows on their agreement to distribute or promote Microsoft
Platform Software. RPFJ III.G.2. When Microsoft argued
against this provision in the original Final Judgment, the
government rejected its proposal because phrasing it the way
Microsoft proposed (and as it is now phrased in the proposed
settlement) would allow Microsoft to achieve the same
anticompetitive purpose, by simply amending its agreements to
require distribution of Micr0s0ft's browser instead of limiting
distrution of competing browsers. See Gov't D.Ct. Sum. Resp. at 16;
Microsoft D.Ct. Com. at 12. The government has not explained why it
has now completely reversed its position.
iv. The Exclusive Dealing Provision Is Riddled With Loopholes
The various exceptions built into the exclusive dealing ban
render it potentially meaningless. While purportedly prohibiting
exclusive or fixed percentage arrangements, such agreements are
actually permitted when Microsoft: obtains a representation that it
is ``commercially practicable'' for the entity to provide
equal or greater distribution of a competing product; if Microsoft
enters into any type of loosely defined ``joint venture''
agreement; or if Microsoft licenses in intellectual property from a
third party. (RPFJ III.G). When Microsoft proposed to
include a similar joint venture exception in a related provision of
the Final Judgment (Final Judgment 3(h), Ban on
Agreements Limiting Competition), the government rejected the
proposal as ``unnecessary'' and because it ``would
enable Microsoft to enter into anticompetitive market division
agreements regarding such products by labeling them, as it attempted
to label at trial the June 1995 Netscape meeting, ``joint
development agreements'' or ``agreements ancillary to
lawful joint ventures.'' Gov't D.Ct. Sum. Resp. at 18. Once
again, the government has agreed to a loophole that can only benefit
Microsoft by inviting abuse and further litigation.
4. The Term of the Settlement Is Too Short, Even If Its
Deficiencies Were Corrected
As demonstrated above, without correction of numerous
deficiencies, the proposed settlement will not restore competitive
conditions because it largely permits Microsoft to conduct business
as usual and it effectively rubberstamps further anticompetitive
conduct. Even if all of the other deficiencies were corrected,
however, the term of the proposed settlement is too short to restore
meaningful competition with the Windows monopoly. Although this
Court's finding that Microsoft illegally maintained its decade-long
monopoly has now been affirmed by the Court of Appeals, Microsoft
has availed itself--;up to and including the present--;of
every opportunity to maintain and extend its monopoly through
anticompetitive actions. For example, Windows XP, designed during
the height of Microsoft's litigation with the government and
released just before the settlement was announced, commingles code
in the exact manner found unlawful by the Court of Appeals.
The government now claims that a five-year decree will be
sufficient to restore competition. CIS at 60. This assertion is
inconsistent with the Department of Justice's own Antitrust Manual,
which states that ``the Division's standard decree language
requires that the consent decree expire on the tenth anniversary of
its entry by the court. [T]he staff should not negotiate any decree
of less than 10 years' duration, although decrees of longer than 10
years may be appropriate in certain circumstances.'' Department
of Justice, Antitrust Division Manual, ch. IV at 54 (3d ed. 1998)
(emphasis added). As the government argued in earlier urging entry
of a ten-year decree:
Ten years is customary in antitrust cases and in any event four
years is too short a time for the Final Judgment to remain in
effect. Despite [Microsoft's] assertion that ``[t]en years is
an extraordinarily long time in the software industry,''
Microsoft has had the dominant position in the operating-systems
business for at least a decade (see Findings (35), and under
the circumstances there is no sound justification for entering a
decree of shorter duration.
Gov't D.Ct. Sum. Resp. at 20 (emphasis added).
The government offers no ``sound justification'' for
its acceptance of a settlement that would last only five years. RPFJ
V.A. The CIS only states that five years
``provides sufficient time for the conduct remedies contained
in the Proposed Final Judgment to take effect in this evolving
market and to restore competitive conditions to the greatest extent
possible.'' CIS at 60. There is no factual support cited for
the ipse dixit that this is ``sufficient time,'' while it
is certain that the standard ten-year decree would restore
competition to a greater extent. The government's present position
also conflicts with other assertions that it previously made in this
case. See Gov't D.Ct. Memo at 27 (``Looking forward, the Court
must anticipate that Microsoft, unless restrained by appropriate
equitable relief, likely will continue to perpetuate its monopoly by
the same anticompetitive methods revealed at trial, although
directed at whatever new competitive threat arises.'').
Moreover, the government's only recourse under the proposed
settlement--;the possibility that the proposed decree could be
extended ``one time'' for a ``maximum of two
years''--;is so short as to be virtually meaningless. RPFJ
V.B. And, even to obtain the ``one-time'' two
year extension, the government would first have to demonstrate
through a complex, lengthy and burdensome enforcement procedure,
that Microsoft engaged in ``a pattern of willful and systematic
violations'' of the decree. Id. The government should be
seeking--;as it originally sought--;more than just conduct
remedies ``tak[ing] effect.'' CIS at 60. It should instead
be trying to ensure that, once the remedies ``take
effect,'' they remain in effect for a period sufficient to
restore competition to the greatest extent possible. As the
government told the District Court, ``[t]en years is customary
in antitrust cases and in any event fore' years is too short.''
Gov't D.Ct. Sum. Resp. at 20. There is nothing in the Court of
Appeals' decision that justifies the government's decision to depart
from its own formal policy.
[[Page 28613]]
As a matter of law, the government's previously stated position
was correct. The case law demonstrates that in cases where a
monopolist has committed a Section 2 violation, it has been
``customary'' for courts to impose remedial decrees
lasting ten years. In over 70 cases since the Department of
Justice's Antitrust Manual was adopted in 1978 to change the prior
policy of seeking decrees of unlimited length, the government has
required consent decrees having a minimum ten year duration. See
e.g., United States v. Greyhound, Civ. No. 95-;1852 (RCL), 1996
WL 179570 (D.DC Feb. 27, 1996) (bus companies); United States v.
Playmobil USA, Inc., Civ. No. 95-;0214, 1995 WL 366524 (D.DC
May 22, 1995) (toy companies); United States v. Republic Services,
Inc., Civ No. 00-;2311, 2001 WL 77103 (D.DC Jan. 18, 2001)
(waste collection companies). \33\ The government also imposed
restrictions on broadcasters'' purchase of television program
rights for a period of 15 years. See United States v. American
Broadcasting Co., Inc., Civ. No. 74-;3600 (RJK), 1980 WL 2013
(C.D. Cal. Nov. 14 1980).
---------------------------------------------------------------------------
\33\Based on a review of the published cases, every
consent decree that the government has entered in a Section 2 case
since 1978 has been ten years or longer in duration, with the
exception of the first Microsoft decree. That decree was not entered
after a full trial on the merits and a finding of unlawful monopoly
maintenance.
---------------------------------------------------------------------------
In contrast to these settlements, the proposed decree here is to
last only five years, although this case has significantly more
importance to the national economy. In addition, Microsoft's prior
conduct, the importance of this case to the national economy, and
the explicit findings, upheld on appeal, of Microsoft's illegal
monopolization activities mandate, if anything, that Microsoft's
conduct be supervised for a period longer than the standard ten-year
term.
At bottom, a five-year injunction is too short to allow
meaningful competition to develop in the operating system market. It
has been over ten years since the government first began to
investigate Microsoft's practices, and it took six years from
Microsoft's first anticompetitive act cited by the District Court
for this case to reach the appellate level. The effects of
Microsoft's past and present anticompetitive actions, which have
already continued for over a decade, will likely last much longer.
The government itself concedes that Netscape and Java are likely
dead and no longer pose credible threats to Microsoft's operating
system monopoly. CIS as 16-;17. Even if the proposed decree's
numerous loopholes were plugged, it will take considerably longer
than five years for strong new competitors to emerge. Most
important, the ability of those competitors to become viable depends
upon the existence of judicial protection. See United States v. GTE
Corp., 603 F. Supp. 730, 742-;43 (D.DC 1984) (rejecting as too
short five-year expiration date for decree provisions in section 2
case).
5. The Proposed Settlement Nullifies Effective Enforcement
The government claims that the various obligations imposed upon
Microsoft in the proposed settlement are supported by ``strong
enforcement provisions,'' ``including the power to seek
criminal and civil contempt sanctions and other relief in the event
of a violation.'' CIS at 5. It also states that Plaintiffs'
right, under certain circumstances, to request a one-time extension
of the final judgment of an additional two years ``is designed
to supplement the government's traditional authority to bring
contempt actions.'' CIS at 60.
The reality, however, is to the contrary. The compliance and
enforcement provisions in the proposed settlement are entirely
inadequate to prevent Microsoft from engaging in future
anticompetitive conduct. The provisions in the proposed settlement
will result in time delays, inefficient administration of the
decree, and ultimately give Microsoft the opportunity to continue
its anticompetitive acts unabated. The most critical deficiencies
include:
a. The Technical Committee Proposal Is Misguided
By agreeing that a ``Technical Committee'' comprised
of computer programming and software experts should perform a
monitoring role (RPFJ IV.B.1 and IV.B.2), the
government seemingly recognizes the difficulty of monitoring and
enforcing Microsoft's compliance with the decree. The government
also appears to recognize the obvious--;that ``Internal
Antitrust Compliance'' by Microsoft, though necessary, is
insufficient. Unfortunately, the government fails to recognize that
its own concessions make the compliance task vastly more difficult.
The Technical Committee contemplated by the settlement is simply
not an adequate answer, much less a substitute for self-enforcing
prohibitions, The person charged with responsibility for monitoring
and enforcing Microsoft's compliance must be an experienced
antitrust lawyer or former federal judge. He or she can then hire
software and programming experts to render assistance, but the
responsibility for determining whether the specific provisions of a
complex court order have been violated must be made by an individual
with impeccable legal credentials and long experience in antitrust
law and decree interpretation. No novel device such as a
``Technical Committee'' is required. The mechanism of a
special master under Rule 53, Fed. R.Civ.P., is readily available
and entirely appropriate. See United States v. Microsoft Corp., 147
F.3d 935,954 (DC Cir. 1998) (recognizing ``well-established
tradition allowing use of special masters to oversee
compliance'').
Aside from its dual, repetitive investigative and reporting
procedures (Technical Committee to the government, then the
government to the Court, see pp. 114-;115 infra.) (RFFJ
III.D.4), the proposed settlement is flawed because it
imposes substantial constraints upon how the Technical Committee's
findings may be used to assure compliance. The settlement prohibits
the admission into evidence of the Technical Committee's findings
``in any enforcement proceeding before the Court for any
purpose;'' and prohibits any technical committee member from
testifying in any proceeding or before any tribunal regarding any
matter relating to the Final Judgment. RPFJ IV.D.4.d.
Each of those prohibitions denies the Court information from the
independent technical personnel who are uniquely knowledgeable about
the nature of the violation. Indeed, although the decree proposal
allows Microsoft to offer any evidence it wants, it shuts off from
the Court the evidence in the possession of the technical committee
members who rejected Microsoft's explanations.
b. All Relevant Employees Should Be Required To Be Trained In
The Decree, But Are Not
The proposed settlement only requires that the officers and
directors of Microsoft receive copies of the decree and be
``annually briefed on [its] meaning.'' RPFJ
IV.C.3. In order to be effective, however, all managers
(not just corporate ``officers'') and all employees who
have positions that enable them to initiate or implement
anticompetitive conduct must be required to read, understand and
comply with the decree. Of the published consent decrees that
require employees of the company to certify that they have read,
understood, and will comply with the decree, most extend compliance
certification beyond officers and directors of the company, to also
include other managers and employees who have responsibility for
overseeing the business activities of the antitrust violator. See,
e.g., United States v. Western Elec., Civ. No. 82-;0192 (HHG),
1991 WL 33559, at *5 (D.DC Feb. 15, 1991) (requiring certification
of compliance from each officer and management employee); United
States v. Delta Dental of R.I., Civ. No. Civ. A. 96-;113P, 1997
WL 527669, at *2 (D.R.I. July 2, 1997) (requiring certification of
compliance from all officers, directors, and employees who had
responsibility for approving, disapproving, monitoring,
recommending, or implementing any provisions in agreements with
participating dentists); United States v. Business Inv. & Dev.
Corp., No. MO-81-CA-20, 1982 WL 1866, at *2 (W.D. Tx. July 16, 1982)
(requiring certification of compliance from all officers, directors,
employees and franchisees).
Moreover, the Chairman, CE0 or other responsible senior officer
of Microsoft should be required to certify periodically to the Court
that Microsoft is in compliance with its obligations. The record
evidence that Microsoft's highest officials were not only aware of,
but actively encouraged, initiated or directed Microsoft's
anticompetitive practices, see, e.g., CA at 73, 77; D.Ct. at
80-;87, 100, 108, 112-;13,124-;29,
340-;349, 396, 406-;07, makes it all the more necessary to
include such certification provisions to ensure that Microsoft takes
seriously its responsibilities under any decree to abide by the
antitrust laws.
c. The Proposed ``Dispute Resolution'' Mechanism
Encourages Delay
Because of the extraordinarily rapid pace of technological and
business developments in the computer industry, avoiding delays in
compliance is a critical element in effectively eliminating
Microsoft's unlawful behavior and restoring competition. Whether the
monitoring function is performed by a Technical Committee or Special
Master, the monitor should simultaneously report to both
[[Page 28614]]
the Court and the Plaintiffs. In defending its decisions to make
numerous substantive concessions to Microsoft during the settlement
process, the government has cited the substantial time it might take
to litigate this case to conclusion if it held out for stronger
relief than Microsoft would accept. CIS at 61. Those same time
considerations militate against the time-consuming enforcement
process contained in the proposed settlement.
The proposed decree contemplates an elaborate procedure whereby
the Technical Committee, after receiving a complaint about
Microsoft's conduct, would be required to meet with Microsoft's
internal compliance officer, and allow Microsoft to respond to the
complaint, before it determines whether the complaint can be
resolved informally. RPFJ III.D.4.b. There are no time
limits on most of these procedures. If, after completing that
procedure, the Technical Committee believes the dispute cannot be
resolved and that Microsoft's conduct violated the decree, the
Technical Committee would then report the violation to the
government in the first instance. RPFJ III.D.4.c. It
then would be up to the government, in turn, to evaluate Microsoft's
conduct and determine whether the violation should be reported to
the Court.
This process guarantees that considerable time will lapse
between a violation of the decree by Microsoft and the Court's
eventual review of the problem. First, the process for
``Voluntary Dispute Resolution'' contemplated by the
proposed decree will substantially delay, and, in some
circumstances, entirely eliminate, the reporting of violations to
the Court. However, effective enforcement requires that any
violation of the decree should be reported by the Technical
Committee or Special Master immediately and directly to the Court.
Action by Microsoft to ``voluntarily'' cease the unlawful
conduct may then, along with other factors, be considered by the
Court in determining the severity of any sanction imposed.
in sum, for any remedy to be effective in this case, it must be
imposed quickly--;not after months or years of further
``dispute resolution.'' Under the enforcement scheme
contemplated by the proposed settlement, however, that simply cannot
happen.
IV. DEFICIENCIES IN THE PROPOSED SETTLEMENT CREATE SIGNIFICANT
RISKS FOR SBC'S COMMUNICATIONS AND DATA BUSINESSES, INCLUDING SBC'S
INTERNET-RELATED BUSINESSES, WHICH DEPEND UPON OPEN ARCHITECTURE AND
COMPETITIVE ALTERNATIVES
SBC is one of the world's leading businesses in the provision of
data and voice communications and Internet access. SBC's affiliates
serve nearly 60 million telephone access lines nationwide and 21
million wireless customers. SBC and its affiliates are major
providers of DSL high-speed and dial-up Internet service, voice
messaging services, and if directory advertising and publishing
products. SBC, through its affiliates, has committed substantial
resources to the development of a host of computer- and Internet-
related businesses. These businesses are designed to provide
consumers with flexibility, convenience and, most importantly, more
choice.
With these initiatives, together with its expanding telephone,
wireless and Internet operations, SBC is prepared to compete
vigorously during the coming decade as the ``convergence''
of communications and computing technologies continues to
accelerate. That highly competitive environment, however, is
threatened by Microsoft's ability--;unless restrained by a
strong and effective decree in this case--;to use its Windows
operating system monopoly to control the electronic
``gateways'' that link the Internet and its myriad service
and content providers to consumers' homes and offices. That control
of the gateways, in turn, will enable Microsoft to entrench the
Windows monopoly even more firmly.
A. How SBC Competes, Or Will Compete, With Microsoft
SBC currently has, or is developing, several businesses in
competition with Microsoft, which, together with other similar
businesses, directly or indirectly, threaten or are threatened by
the Windows operating system monopoly.
1. Telephone, Cellular And Internet Services
SBC affiliates Southwestern Bell, Ameritech, Pacific Bell,
Nevada Bell, and SNET are the Incumbent Local Exchange Carriers that
provide telephone service in thirteen states.\34\ In addition, SBC
owns a sixty percent interest in Cingular Wireless, which provides
nationwide cellular telephone and Internet-related services.
---------------------------------------------------------------------------
\34\
34 Prior to 1996, SBC was subject to line of business
restrictions imposed by the AT&T Consent Decree or Modified
Final Judgment (``MFJ''). These prevented SBC's entry into
markets such as long distance telephone and imposed numerous
affirmative obligations to assist actual and potential competitors.
See U.S.v. AT&T, 522 F. Supp. at 186-;95 (setting forth
line of business restructions); United States v. Western Electric
Co., 673 F. Supp. 525 (D.DC 1987) (upholding ``core'' line
of business restrictions on local telephone companies), aff'd in
part, rev'd on other grounds, 900 F.2d 283 (DC Cir. 1990). These
provisions, which were of indefinite duration, were ultimately
superseded by the Telecommunications Act of 1996, which replaced the
MFJ with detailed regulatory obligations to preserve non-
discriminatory access to the local telephone network, to require SBC
to share its network elements at regulated prices, and to take
affirmative actions to open its local network to competition as the
price for entry into the long distance market. See
Telecommunications Act of 1996, 42 U.S.C.
251-;59, and 271 et seq. The
duration, detail and substantial scope of those affirmative
requirements and prohibitions, even when they were embodied in the
MFJ, stand in marked contrast to the trivial and temporary
prohibitions applied to the Microsoft monopoly.
---------------------------------------------------------------------------
Various SBC affiliates, including Prodigy, provide ISP services,
as well as dial-up and broadband (via DSL) Internet access services
nationwide. SBC recently finalized a joint venture with Yahoo,
whereby Yahoo will provide SBC's Internet portal (home page). In
addition, SBC owns an ``Internet Data Center'' which rents
server usage to businesses and e-commerce clients.
Microsoft is an actual competitor of SBC in all of these
businesses, including voice telephony. Microsoft is actively
developing its Voice over Internet Protocol (``VoIP'')
through its ``Net2Phone'' business. This service is being
embedded in Windows XP, with the aim of convincing customers to use
the Internet for long distance and local calls. Microsoft also
provides an Internet access service, MSN, which takes advantage of
Microsoft's operating system monopoly by virtue of its being bundled
with Windows. By bundling additional products and services such as
its ``.NET'' initiative and its Passport service with
Windows XP, Microsoft is also using its monopoly power to give
itself an unfair advantage in new markets for Internet and e-
commerce business solutions.
Even in businesses in which Microsoft is not now a direct
competitor of SBC, however, such as local, long distance and
cellular telephone service, Microsoft's operating system monopoly
poses grave risks to the competitive marketplace that Congress
sought to ensure in the Telecommunications Act of 1996. If Microsoft
is permitted by the proposed settlement to maintain and expand its
PC operating system monopoly, it will become the gatekeeper for
competitors to offer and for consumers to access key communications
and entertainment products and services, including telephone,
Internet access, voice messaging, instant messaging, music, video
services, e-commerce, and interactive games. Without strong remedial
measures designed to break its operating system monopoly (which the
proposed settlement does not contain), Microsoft will be in a
position to favor its own and its partners' communications,
entertainment and related services, to exclude competitors''
services from access to consumers, to impose costs on rivals and to
degrade their services (whether through a toll, a charge for being
listed as an available service or an interoperability obstacle), all
with the effect of squelching competition and harming consumers. No
provisions in the proposed settlement even address, let alone bar,
such anticompetitive conduct.
Just as Microsoft has for years successfully imposed on
consumers its own software products and other services, irrespective
of the comparative merits of competing products it excluded from the
market, Microsoft will be able to repeat its anticompetitive
strategy in collateral markets including the key communications and
entertainment markets described above. This is not speculation;
Microsoft has already announced that it is developing an extension
to Windows XP, named Freestyle, that will make its Windows PC the
communications gateway to the home. See Byron Acohido, Challenge
Microsoft? It Could Take Moxi, USA Today, Jan. 16, 2002, at B-3;
Microsoft Unveils New Home PC Experiences with
``Freestyle'' and ``Mira'' (Jan. 7, 2002), at
www.Microsoft.com/presspass/Press/2002/Jan02/01.
2. Unified Messaging
SBC's Unified Messaging Service (``UMS'') is a good
example of a new business placed at serious risk because of the
anticompetitive actions that the proposed settlement Would allow UMS
is currently in the final development stages, with a projected
market introduction in late 2002. UMS will allow customers to
retrieve their voice, e-mail and
[[Page 28615]]
fax messages from a single ``mailbox'' that will be
accessible by phone (wire or wireless) or via the Internet. In the
future, SBC plans to add other services to UMS, including instant
messaging and video messaging.
UMS is the first in a new generation of services that will
create a convergence of all voice, video and data services into one
application. Central to UMS is the principle of ``any device,
anywhere.'' SBC has designed UMS to be fully accessible through
any type of telephone, personal computer, or handheld device. UMS
will operate on any software operating system and with any
combination of other software applications and services. UMS is also
``agnostic as to provider,'' meaning that it will function
regardless of the provider of Internet access, phone or wireless
service. For example, consumers can access UMS as easily and
effectively through an inexpensive cellular phone that makes no use
of Microsoft technology as they call through an expensive Windows PC
using Internet Explorer as its browser.
UMS and similar services offered by other companies will compete
by giving consumers the ultimate in choice and convenience, enabling
them to access all UMS services from virtually any phone or
computing device anywhere in the world. UMS will be a direct
competitor of Microsoft's e-mail service (Hotmail), and with MS
Messenger, a video and instant messaging service, both of which are
promoted through integration with Windows.
B. UMS Is An Integral Part Of Movement To Server-Based Computing
Model That Will Erode The Applications Barrier To Entry That
Currently Shields Microsoft's Monopoly Power
Because UMS will function with any operating system or Internet
browser, and will provide a number of the same functions (voice/data
messaging, e-mail, instant messaging) that are or will be provided
by a Windows PC, UMS presents a significant competitive threat to
Microsoft's PC operating system monopoly. UMS is part of the
``movement off the desktop'' taking place in the computer
industry, which offers increased flexibility and choice to the
consumer.
Central to this innovation is that the vast majority of actual
computing functions will be performed away from the consumer's
computing devices, on servers connected through the Internet. A
consumer will no longer need a Windows PC, containing a large hard
drive and powerful microprocessor. Instead a simpler, inexpensive
device, such as a cell phone or PDA, with a very basic operating
system and an Internet browser, when coupled with products like UMS,
will allow the consumer to perform many of the functions of a
Windows PC at a significantly reduced price and with much greater
flexibility and convenience. D.Ct. at 22-;27, 56,
59-;60 (cited with approval in CA at 52, 79).
In order for UMS to function, however, and to present a
competitive alternative to the Windows PC operating system monopoly,
SBC must have the ability to effectively process voice and data
transmissions through a complex network of different servers, each
of which performs separate functions and employs different
technologies. At a minimum, when a UMS customer seeks to retrieve a
message, either by phone or through the Internet, the voice or data
transmission will travel between and through several separate SBC
servers (gate, mail, LDAP (lightweight directory access protocol),
directory and web server). Each of these servers performs
independent functions. As a result, it is critical to UMS that any
type of PC, Internet browser, cell phone or handheld device be fully
interoperable with all of SBC's servers. UMS also has the potential
to be used in a home network, thus requiring full interoperability
to extend to set-top boxes.
In short, for SBC and other companies to deliver Internet-based
services like UMS, they absolutely must have a ``protected
chain of interoperability'' extending throughout all computers,
servers, and other devices which participate on the
Internet--;including the Internet browser and PC. If only one
link on the chain is not fully interoperable with the entire
network, UMS will not be able to process its voice and data
transmissions, and thus the convenience and vast array of choices
UMS could bring to consumers as an alternative to the Windows PC
operating system monopoly will be eliminated.
There is little doubt that Microsoft will continue to recognize
the danger that server-based computing, and multi-platform, multi-
device products like UMS, pose to the applications barrier to entry.
D.Ct. at 60 (cited with approval in CA at 79). Such
alternative server-based computing pathways on the Internet, which
rely on open operation and architecture, like Java, will attract
applications used for Internet communications. In the past when such
threats to the applications barrier to entry that protects the
Microsoft monopoly have emerged, Microsoft has responded with
anticompetitive conduct. Indeed, the actions taken by Microsoft to
eliminate Netscape and Java, found to be illegally exclusionary by
the District Court and the Court of Appeals, had the sole purpose of
protecting the applications barrier to entry. As shown below,
however, the deficiencies in the proposed settlement are so
pervasive that SBC's competitive, Internet-based offering and
similar products from other companies are threatened with the same
fate as Netscape and Java.
C. The Proposed Settlement Would Allow Microsoft To Render SBC's
Internet-Based Businesses Significantly Less Competitive
1. The Proposed Settlement Will Allow Microsoft To Block
Consumers' Access To Competing Products And To Impede Their
Functionality
Under the proposed settlement, Microsoft could use its monopoly
power to (i) prevent UMS and related products from being accessed by
anyone using a Windows PC and IE; (ii) degrade or impede the ability
of UMS to function on a Windows PC; and/or (iii) deny UMS access to
the Windows desktop. Moreover, Microsoft could avoid the
requirements of the proposed settlement by simply claiming UMS was a
``service.'' See pp. 46-;48 supra. Because the
proposed settlement does not require Microsoft to ensure that UMS
will function smoothly on Windows, or even have proper access to the
Windows desktop, it could significantly harm the ability of UMS to
compete with Microsoft products providing similar services. The
danger, of course, is not limited just to UMS, but applies equally
to related communications and entertainment products and services
that are being developed and offered by other companies.
i. Blocking Access to UMS
The inadequate interoperability/disclosure provisions in the
proposed settlement would allow Microsoft to completely block all
access to a competing product, like UMS, for all users of a Windows
PC and IE. Because the proposed settlement does not require any
disclosure to ensure interoperability between IE and a non-Microsoft
server operating system, Microsoft is able, and indeed encouraged,
to change, and then withhold disclosure of, IE's protocols in order
to prevent interoperability with those SBC servers that run on non-
Microsoft operating systems. In that case, all UMS customers would
be unable to access their UMS account from a Windows PC operating
system equipped with IE.
Should SBC decide to convert the entire UMS network of servers
to Microsoft operating systems, Microsoft would still, under the
proposed settlement, be able to block access to UMS for some users.
In this event, Microsoft could merely program its server operating
system so that it could not interoperate with a non-Microsoft
browser. In fact, Microsoft employed this very strategy recently,
when it reprogrammed its web servers for the MSN website to block
all access by consumers using the competing Netscape and Opera
browsers. See p. 80 supra.
ii. Degrading the Performance of UMS
Should Microsoft choose not to completely block access to UMS,
the proposed settlement permits Microsoft to substantially degrade
UMS' functionality on a Windows PC operating system. The degradation
can be accomplished by programming Microsoft's PC operating system
in such a way that UMS' functions are purposefully disadvantaged.
For instance, by altering the program codes for IE or Microsoft's
version of Java, Microsoft can hinder the performance of UMS on a
Windows PC operating system, including the speed at which UMS
processes requests, its efficiency and the graphical presentation
the user sees.
iii. Denying UMS Access to the Windows Desktop
SBC's strategy for UMS is largely dependent on having access to
and visibility on the desktop, as well as on OEMs and end-users
being able to change default settings in the Windows operating
system to select the SBC home page or set the pre-login screen to
allow for message notification. Without provisions in the settlement
guaranteeing these rights, Microsoft can prevent UMS from having its
own icon on the Windows desktop, or being on the Windows start menu.
Furthermore, the proposed settlement would allow Microsoft to
prevent UMS customers from choosing to set the SBC-Yahoo homepage as
their default homepage on IE. Likewise, nothing in the proposed
[[Page 28616]]
settlement would stop Microsoft from denying SBC equal access to the
pre-login indicators on the desktop for message notification. Only
through such notification could UMS compete with Microsoft's Hotmail
or Messenger, which have such indicators on both the desktop and the
pre-login screen for the purpose of notifying the subscriber that
messages are waiting.
2. Microsoft Can Foreclose Competition By Using Its Ability To
Raise Its Rivals' Costs
By not requiring ``seamless interoperability,'' the
proposed settlement would allow Microsoft to raise substantially the
fixed costs associated with a competing product or service, as well
as the ultimate cost to the consumer, to the point that such
products are unable to compete. The anticompetitive initiatives
Microsoft can pursue under the proposed settlement will force
Internet-based businesses to move toward using Microsoft server
operating systems and software exclusively. At the same time, the
settlement will channel consumer access to the Internet through
Windows PC operating systems, which consumers will have to purchase
in order to obtain IE.
For example, SBC currently uses Microsoft server operating
systems for less than 5% of its UMS server network, and anticipates
this percentage will approach zero within the next few
years--;provided there is full interoperability among servers,
PCs, PDAs, phones and all other computing devices. If the proposed
settlement is approved, however, SBC will probably have no choice
but to replace its entire UMS server network at considerable cost
with Microsoft server operating systems and software.
Microsoft's server operating systems are currently significantly
more expensive than those of its competitors, and this price
differential is likely to grow as Microsoft solidifies its position
in the server market. Even at current prices, replacing the UMS
server network with Microsoft server operating systems would
significantly increase SBC's overall costs for UMS (including the
cost of hardware, software, maintenance of hardware and software,
staff, network management, and disaster recovery). In addition, if
SBC were required to replace the hardware in its entire current
server network within the next few years, this would dramatically
increase costs for UMS during its critical first years on the
market. Taken together, these cost increases will make UMS a much
less appealing alternative to the Windows PC, as the consumer's cost
savings will be much smaller.
UMS is not the only SBC network service to be negatively
impacted. SBC's telephone network also utilizes many servers for
various functions. For instance, SBC has servers that perform
``operation support systems,'' as well as
``operations administration maintenance and
provisioning.'' Like UMS, under the proposed settlement these
network support systems would be at risk, and the cost to convert
them all to Microsoft server eperating systems would be significant.
3. Consumers Who Want To Access The Internet Will Have To Have A
Windows Operating System,Which Will Increase The Cost To The
Consumer For UMS
UMS is designed to save consumers money, because they can access
the service through a ``dumb PC'' or handheld computing
device, equipped only with a few features, like UMS, that will allow
the consumer to use the Internet to perform essentially all major
computing functions currently offered by a Windows PC at a fraction
of the cost.
Assuming full interoperability, a ``dumb PC'' with a
browser would be able to access and browse the Internet as well as a
Windows PC. Moreover, by purchasing a product like UMS to accompany
the ``dumb PC,'' even more of the functions of a Windows
PC (voice/data messaging, instant messaging, e-mail), would be
available and the total price would remain substantially below a
Windows PC. The cost savings to the consumer, when coupled with the
other positive attributes of UMS, would make it a very attractive
alternative to the comparable Microsoft products the consumer can
only obtain by purchasing a Microsoft operating system.
By preventing full interoperability throughout the network of
servers (including the browser), however, Microsoft can destroy any
cost savings provided by UMS, because the consumer will have to buy
a Windows PC or another device with a Microsoft operating system in
order to obtain IE. That operating system already will have
integrated or bundled Microsoft products that compete with UMS (MS
Messenger; Outlook Express, Hotmail) which are included in the cost
of the operating system. Thus, to use UMS, the consumer will have to
pay an ``add-on'' or double cost in addition to the cost
of the Microsoft operating system. The competitive disadvantage, for
both SBC and the consumer, is plain.
4. The Proposed Settlement Will Stifle Innovation And Force
Competitors To Sacrifice Quality In Certain Critical Markets
SBC, or any Internet-based business, is highly dependent on the
quality and speed of technological innovation in markets that supply
the hardware and software used in new ventures, such as UMS, or
established services. This is particularly true for UMS, which will
rely on an extensive network of servers, computers and related
devices and technologies to deliver its range of services. SBC's
policy is to use a wide variety of suppliers for different products,
including software, throughout the UMS networks and its other
computer systems. To take full advantage of technological
innovation, SBC chooses the ``best in class.'' This term
reflects SBC's philosophy to choose the provider for each particular
product or service that best performs the specific functions needed
by SBC. In this way, SBC can obtain maximum benefit from the speed
and diversity of innovation to create the most competitive products
possible.
In certain crucial markets, the proposed settlement will convert
this world of choice into a world of one choice--;Microsoft. In
the process, SBC's ability to employ its ``best in class''
strategy would be severely reduced. Indeed, technological innovation
itself will be gravely hindered, particularly for server operating
systems and server software--;two critical product areas for any
network. This change will be driven by the proposed settlement's
failure to ensure interoperability. As a result, consumers and
businesses will be forced to purchase the Windows PC operating
system, IE, and Microsoft server operating systems, or at least
license Microsoft intellectual property, in order to guarantee full
interoperability. The fact that Microsoft server products,
especially in relation to the particular needs and functions of SBC,
are more costly but by no means superior in quality or
functionality, will no longer be determinative.
In the longer term, as competitive choices in these markets are
diminished, Microsoft will be able to unilaterally control the pace
of innovation. Currently, many different companies are working to
innovate and develop different product functions and niche uses. SBC
can take advantage of specialized innovations that are essential to
supporting or improving its operations. In the world created by the
proposed settlement, however, Microsoft will be the sole arbiter of
what areas, products or uses should or should not be explored for
technological advancement. Microsoft would be free to stifle
innovation in a particular area that may be crucial to developing a
product or service which competes with Microsoft.
The government made this very point to the District Court
through the testimony of one of its expert economists, who stated
that Microsoft's exclusionary practices had
interfered with the process of innovation in three distinct
ways. First, consumers did not get the innovative products that the
technology being developed by Netscape and Sun might have delivered.
Second, Microsoft's predatory acts had a chilling effect on
innovative efforts by all people who might have developed other
software technologies that Microsoft found threatening. Third,
Microsoft harmed the innovative process because it limited
competition, and competitive markets are, on balance, the best
mechanism for guiding technology down a path that benefits
consumers.
Romer Decl. 5.
The effect of the proposed settlement on UMS is illustrative.
SBC currently uses between 15 and 20 different providers for
different products, including software, throughout the UMS network.
In the ``Microsoft world'' that would be created by the
proposed settlement, SBC expects that it would be limited to a total
of 5 to 10 providers. Each of the lost providers will have to be
replaced by Microsoft products because of interoperability obstacles
created by Microsoft commingling and nondisclosure.
SBC currently uses three separate server operating systems in
its UMS operations, based on the particular needs and functions of
different servers throughout the network. The three products are a
UNIX operating system which is run on servers produced by several
companies; Linux operating systems which run on a variety of
servers; and, for certain limited functions, Microsoft server
operating systems (which are run on less than five percent of the
UMS network). In SBC's view, the Microsoft server operating systems
are substantially less effective than
[[Page 28617]]
competitors'' systems in performing the functions needed by the
UMS network. Among other things, Microsoft products have a poor
security performance history, see pp. 90-;91 supra, and thus it
is SBC's policy that no server that faces the Internet is based on a
Microsoft server operating system. As a result of the need for
interoperability, however, under the proposed settlement, SBC could
be forced to use Microsoft server operating systems throughout the
UMS network.
SBC's choices will be similarly circumscribed for server
software. For its mail server and directory server, SBC currently
uses a range of non-Microsoft software products. For the functions
needed by the UMS network, these products better meet SBC's
requirements, and are less costly than, comparable Microsoft
products. For SBC's web server, which is the critical primary link
to the Internet and the Internet browsers, SBC uses server software
from Apache. The Apache software is also preferable to comparable
offerings from Microsoft for this purpose.
Similarly, in the areas of network management and voice over
Internet protocol (``VoIP''), SBC could well be forced to
switch to Microsoft products under the proposed settlement. Network
management products essentially ensure that SBC's telephone network
runs effectively and reliably, by monitoring the system for
failures, analyzing configuration, and developing utilization
statistics. The network management software currently used by SBC is
more efficient and less costly than comparable Microsoft products.
In the VoIP area, SBC's ``gateway,'' which translates
voice conversations into VoIP, uses a non-Microsoft, ITU
(``International Telecommunications Union'') H.323-
compliant gateway, or translator. If the proposed settlement were
approved, nothing would prevent Microsoft, by changing its server or
browser programs to a non-compliant format, from forcing SBC to
replace this translator with a Microsoft product or a product that
incorporates Microsoft-licensed intellectual property to ensure the
interoperability required for SBC's telephone network to function.
5. Delayed Disclosure Will Harm Competition
The flexibility provided to Microsoft to delay the disclosure of
technical information could also significantly harm the competitive
prospects of UMS and related products. As explained above, Microsoft
can delay the release of technical information related to
interoperability with a new Windows product or a change in an
existing Windows product until very close to the time when the new
or altered product is placed on the market. See pp. 80-;85
supra. SBC, and other competitors, thus face the very real
possibility that there will be insufficient time to ensure that a
competing product, like UMS, will be fully interoperable when a new
or altered Windows product is introduced. If UMS is not fully
interoperable, the result would be that certain UMS customers who
attempted to access their mailbox from a Windows PC would be
``dropped''--;meaning their request for data or voice
information would not be processed. Since SBC plans that UMS will
have over 5 million customers by 2007, if UMS is not fully
interoperable with Windows PCs for even one day, many UMS customers
would be ``dropped.'' The negative consequences should
customers be unable to access their UMS mailboxes for any period of
time are obvious.
By making it impossible for server operating systems which run
websites on the Internet to interoperate with non-Windows operating
systems, Microsoft will be able to force all businesses and all
consumers to conform to the Windows world. With over 90% of the
operating system and browser markets, for example, Microsoft can
make its Passport product the dominant intermediary between
consumers and e-commerce web sites, and can effectively impose a tax
or toll on all transactions. If it wishes to, Microsoft will be able
to use its browser dominance to ensure that any web portal in which
it has a stake receives preferential display. And if it chooses to,
Microsoft will be able to use its browser dominance to control the
flow of information or content on the Internet by using its Internet
gate-keeper position to prefer one type of message over another, for
example, blocking access to sites that are critical of Microsoft. In
all of these ways, Microsoft can use the developing world of
Internet technology to protect and strengthen its PC operating
system monopoly.
V. WITHOUT SIGNIFICANT CHANGES, THE PROPOSED SETTLEMENT CANNOT
SATISFY THE PUBLIC INTEREST STANDARD
As shown, the proposed settlement allows Microsoft to continue
exclusionary practices, like commingling, to easily evade virtually
all of the proposed settlement's proscriptions and affirmative
obligations, and, by simply doing what the settlement allows, or
fails to enjoin, ensuring that the next generation of threats to the
operating system monopoly in the form of Internet servers and web-
based computing never leaves its crib. By the time the proposed
settlement expires, Microsoft middleware will be the firmly
entrenched medium of Internet communication, displacing open
architecture with a closed proprietary system; all competition will
be forced to use Microsoft's proprietary standards instead of the
open architecture currently thriving as the medium for program
development and communication; and OEMs will be even more beholden
to Microsoft's demands. This is the teaching of an exhaustive trial
record and a careful appellate review that affirmed the lower
court's findings of a decade-long scheme of monopoly maintenance in
violation of Section 2 of the Sherman Act.
Under the law of the District of Columbia Circuit, the proposed
settlement falls far short of providing any meaningful remedy for
this most serious of antitrust violations and for that reason alone
does not satisfy the public interest standard. United States v.
Microsoft, 56 F.3d 1448, 1458 (DC Cir. 1995) (The Court must
``make an independent determination whether the proposed
consent decree [is] in the public interest.''). Worse still,
because the proposed settlement operates to perpetuate this unlawful
monopoly by permitting the continuation without sanction of conduct
previously found to be exclusionary, the proposed settlement in fact
injures the public interest. For these reasons, the District Court
must reject it.
Indeed, the proposed settlement fails to meet the public
interest standard on all of the bases set out in the 1995 Microsoft
decision. As discussed above, and in further detail below in the
context of recommended changes and additions to the proposed consent
decree, the settlement now advanced by the government (1) is
``ambiguous'' in many respects and fiddled with loopholes
and exceptions to key provisions; (2) presents numerous
``difficulties in implementation'' that arise because so
many provisions leave compliance in Microsoft's sole discretion; (3)
has been subject to widespread condemnation by ``third parties
[who] contend that they would be positively injured by the
decree,'' including SBC; and (4) in view of the remedies the
government said were absolutely essential only two years
ago--;after the District Court's detailed findings as to
monopolization were upheld on appeal--;but which have now been
omitted from the proposed decree, ``on its face and even after
government explanation, appears to make a mockery of judicial
power.'' Microsoft Corp., 56 F.3d at 1462.
For these reasons, SBC submits that the proposed decree should
not be entered. The proposal made by the Litigating States would, if
adopted in its entirety, adequately serve the public interest in
SBC's view. Alternatively, SBC respectfully offers the following
detailed revisions that, if fully incorporated into the proposed
settlement, would provide an appropriate remedy for Microsoft's
adjudicated wrongdoing:
A. Changes Must Be Made to RPFJ III.A (OEM and
Other Licensee Retaliation)
Sections 8 and 9 of the Litigating States' proposal provide an
adequate remedy prohibiting retaliation by Microsoft against others.
Alternatively, the following revisions should be made to the
proposed settlement:
III.A The retaliation provision should not be
limited to OEMs, but should also prohibit retaliation against any
third party that is a licensee or potential licensee of Microsoft
products or services. Given Microsoft's proven propensity to root
out and extinguish competition wherever it develops, the risk of
retaliation could affect many sources of competitive pressure on
Microsoft besides OEMs. One example would be third-party software
system integrators, who pull together products from numerous
different vendors to give customers a software or total computing
package that is tailored to their specific needs.
The term ``retaliation,'' which is not defined in the
proposed settlement, must be defined broadly to include ``any
threats or any actions that directly or indirectly have an adverse
effect'' on OEMs or other licensees. The phrase ``by
altering Microsoft's commercial relations, or by withholding newly
introduced forms of non-monetary Consideration'' should be
eliminated, because it unnecessarily limits the scope of the term
retaliation. Microsoft's proven ability to devise new forms of
anticompetitive restraints to meet new competitive threats amply
justifies this broad definition.
[[Page 28618]]
The scope of the conduct by OEMs and other licensees which
cannot be subject to retaliation by Microsoft must be broadened. The
provision should prohibit adverse action by Microsoft based on the
OEM or other licensee undertaking or contemplating ``any
business activity that promotes or distributes software, products or
services that may be competitive with Microsoft products or
services.'' See Final Judgment 3(a)(i)(1). Again
the record of Microsoft's constantly evolving panoply of
anticompetitive actions justifies the broad prohibition to
``pry open'' the market to competition. The burden should
be on Microsoft, as the convicted lawbreaker, to seek an exception
to the decree's prohibitions if it believes there is a reasonable,
procompetitive justification for a particular adverse action.
III.A.1, III.A.2 and III.A.3 Each of these
subsections should be deleted because they limit the scope of the
conduct by OEMs for which Microsoft is prohibited from retaliating.
The provision in the second half of III.A
addressing license termination should require that Microsoft show
good cause before terminating the license of an OEM or other
licensee, in addition to giving written notice and an opportunity to
cure. See Litigating States' 2(a). The provision should
also be changed to give the licensee 60 days' opportunity to cure.
Id. The exception allowing Microsoft to terminate an OEM's license
if it has previously given two or more written notices should be
deleted because it is too easily subject to abuse. All of these
changes are necessary to ensure that Microsoft, given its sorry
history of abuse, deals fairly with licensees.
The exception in III.A that permits Microsoft to
provide ``consideration to any OEM with respect to any
Microsoft product or service where that consideration is
commensurate with the absolute level or amount of that OEM's
development, distribution, promotion or licensing of the Microsoft
product or service'' should be deleted. It provides Microsoft
the opportunity to provide unlawful incentives to licensees based on
undefined criteria (``absolute level or amount'') that
Microsoft alone determines.
Proposed Additions to Follow RPFJ III.A
B. A Provision Prohibiting Retaliation By Microsoft Against Any
Party Who Participates In The Litigation Must Be Added
A provision, such as Litigating States' proposal 9, should be
added following III.A to specifically prohibit
Microsoft from retaliating against any individual or entity who
participates or cooperates in any way in any aspect or phase of
antitrust litigation involving Microsoft. Such a provision will
ensure that Microsoft does not retaliate against any individual or
entity that has participated thus far, and will afford protection to
any individual or entity that wishes to come forward with complaints
against Microsoft based on the consent decree that is ultimately
entered. In view of Microsoft's continuing dominant position, its
history of retaliation, and the fear it has engendered throughout
the marketplace, such a provision is both necessary and reasonable.
C. A Provision Requiring Microsoft To Port ``Office''
To Apple's Operating System Must Be Added
Litigating States' proposal 14 should be included
in the decree to require Microsoft to continue making and updating a
version of its ``Office'' business productivity suite that
can be ported to the Apple operating system, and to require
Microsoft to auction licenses to third parties to facilitate the
creation of versions of Office that port to operating systems other
than Windows. Such a provision is necessary because the Apple
Macintosh operating system at present is the only viable alternative
to Windows as an Office platform, but if others develop, they should
have access to this widely-used application software. Such a
provision is justified by the specific findings, affirmed on appeal,
that Microsoft used the threat of dropping support for the Apple
version of Office to coerce Apple into using IE as its default
browser.
D. Changes Must Be Made To RPFJ III.B (Uniform
Licensing)
The subject of uniform licensing is adequately addressed in
2(a) and 2(b) of the Litigating States' proposal.
Alternatively, the RPFJ should be revised as follows:
III.B
For the reasons discussed in connection with RPFJ
III.A., the provision must apply not only to
Microsoft's licensing to OEMs, but to all third party licensees.
III.B.2
The proposed decree should allow Microsoft to provide reasonable
volume discounts only if they are based upon an independent
determination of the actual volume of shipments. See p. 102 supra;
Litigating States' 2(a)(ii). III.B.3
This provision and its three subsections should be eliminated.
Instead, the provision should include an outright prohibition, such
as that included in Final Judgment 3(a)(ii) or
Litigating States' 2(a), against Microsoft's offering
market development allowances (``MDAs'') or discounts to
OEMs or third party licensees. This loophole allowing MDAs makes it
possible, as a practical matter, for Microsoft to engage in the very
discrimination that the provision is intended to prevent.
Proposed Additions to Follow RPFJ III.B
A provision should be added to the proposed decree that would
require that Microsoft provide OEMs and other licensees with equal
access to ``licensing terms, discounts, technical, marketing
and sales support, product and technical information, information
about future plans, developer tools or support, hardware
certification and permission to display trademarks or logos.''
gee Litigating grates' 2(b); Final Judgment
3(a5(ii5. Without this provision, Microsoft will be
able to keep such information secret, which will allow Microsoft to
continue to take advantage of licensees' ignorance about what terms
are available.
F. A Provision Prohibiting Microsoft From Enforcing Agreements
That Are Inconsistent With The RPFJ Must Be Added
A provision should be added that prohibits Microsoft from
enforcing any contract terms or agreements that are inconsistent
with the decree. See Litigating States' 2(a); Final Judgment
3(a)(ii). This prophylactic measure is justified by
Microsoft's proven history of evasion of antitrust regulation and
anticompetitive conduct.
G. Changes Must Be Made to RPFJ III.C (Restrictions
on OEM Configuration of PCs)
Section III.C attempts to address Microsoft's past illegal
imposition of restrictions on OEM configuration of the desktop.
These restfictions closed the OEM distribution channel to non-
Microsoft middleware. Because the provision fails to address
Microsoft's commingling of code, contains no affirmative requirement
to offer a stripped-down version of Windows with a corresponding
price reduction, and is fiddled with loopholes and ambiguities that
allow Microsoft to override both OEM and end-user choices regarding
competing middleware products, section III.C fails to accomplish its
goal. To effectively close these loopholes and reopen the OEM
distribution channel in an effort to revive middleware competition,
SBC recommends the following:
The Litigating States' proposal is adequate to satisfy SBC's
concerns regarding the effectiveness of OEM configuration options.
SBC recommends that the Litigating States' proposals addressing
restrictions on OEM options be adopted to replace section III.C of
the proposed settlement. See Litigating States'
1, 2(c), 3, 8, 10. In the alternative, SBC
recommends the following modifications to the proposed decree:
III.C
Following the words ``OEM licensee'', the phrase
``or Third Parties'' should be added. ``Third
Parties'' should be defined as ``any persons offering to
purchase from Microsoft at least 10,000 licenses of a product or
products offered and licensed to OEMs, including without limitation
ISVs, systems integrators, and value-added resellers.'' See
Litigating States'' 22(oo). As described in these
comments, this would allow third party software customizers to
develop as a competitive force in the industry, as they may well
have absent Microsoft's illegal conduct.
Add after the word ``alternatives'' in the first
sentence of the provision ``..., which are set forth below, by
way of example and not limitation: .... ''This prevents the
list of items that follows from becoming an exclusive list of the
restrictions Microsoft cannot impose on OEMs. Broad language is
necessary so that the remedy can be adapted to technological
changes.
Added to the list should be an option that states OEMs are free
to display alternative non-Microsoft desktops, provided that an icon
or other means of user access is provided to the Microsoft desktop.
This allows OEMs the freedom to offer consumers completely separate
non-Microsoft interfaces without interfering with, changing the
appearance of, or precluding access to, the Microsoft desktop.
III.C.1
This subsection is meant to ensure that OEMs are free to install
competing middleware products and services and to place icons and
shortcuts to those products on the desktop. CIS at 30. To fulfill
that purpose:
Eliminate everything after the words ``generally
displayed.'' The exception that
[[Page 28619]]
follows those words may be misconstrued as providing Microsoft
discretion to prohibit OEMs from featuring middleware products as to
which Microsoft may not offer a competing product or a product with
the same ``functionality.'' The deletion of the language
prevents any misunderstanding.
Section III.C. 1 should also make clear that Microsoft may not
restrict OEMs from offering an alternative desktop, provided that an
icon linking the user to the Windows desktop is also displayed. This
would expand options for consumers, while at the same time reducing
the burden on OEMs of attempting to conform to Microsoft's desktop
requirements.
III.C.2
Related to section III.C.1 is subsection 2, which prevents
Microsoft from restricting an OEM's ability to distribute and
promote non-Microsoft Middleware by displaying shortcuts on the
desktop. However, the provision limits this ability to those
middleware products that do not impair the
``functionality'' of Windows. At the end of the provision,
the following language should be added: ``Whether the
functionality is impaired shall be determined by the Technical
Committee upon Microsoft's written submission to the Committee as to
how the OEM modification impairs the functionality of the Windows
Operating System.'' Nowhere in the decree is the term
``functionality'' defined. So as not to leave the
determination as to whether a change impairs the
``functionality'' of Windows in Microsoft's discretion,
either the term should be defined in the definitions section of the
decree, or the aforementioned language should be added.
III.C.3
Subsection III.C.3 requires Microsoft to permit OEMs to
configure the desktop in a manner that allows non-Microsoft products
to launch automatically at the conclusion of the tint or subsequent
boot sequences or upon connection or disconnection from the
Internet. To accomplish this:
Eliminate everything after ``a user interface'' and
replace it with ``that may be seen as attempting to imitate the
trade dress of or otherwise appear identical to the corresponding
Microsoft Middleware Product.'' While subsection 3 attempts to
prevent ISVs from palming-off their products as Microsoft products,
as currently written, the provision appears to give Microsoft
discretion to decide, in the first instance, which
competitors'' icons and interfaces, and in what form, may be
displayed. The change clarifies the intent.
As in Section III.C.1 above, this provision contains imprecise
language describing when and whether a Non-Microsoft Middleware
Product can launch automatically (``if a Microsoft Middleware
Product that provides similar functionality would otherwise be
launched automatically at that time'') that can be interpreted
as allowing Microsoft to stop OEMs from launching innovative
middleware products as to which Microsoft has not developed a
competing product. This language should be deleted both to avoid any
possibility of such an interpretation and also because Microsoft's
business choices should not determine or in any way limit OEMs'
decision to launch a non-Microsoft product or service.
The provision should include the phrase ``..., application
or service (including any security/authentication service)''
after the first appearance of the term ``Non-Microsoft
Middleware''. This would allow ISVs to compete with Microsoft's
new products and services such as NET and Passport to which Windows
XP contains embedded prompts in the initial boot sequence and on the
MSN default homepage.
As now drafted, the provision can be read as limiting
competition 0nly to the categories of middleware product that
existed when the litigation began, i.e., browsers and media players.
The settlement should require that, as part of ensuring that a
Non-Microsoft Middleware Product can launch automatically in place
of a Microsoft Middleware Product, the non-Microsoft product will
replace the Microsoft product in such cross-dependent scenarios as
when clicking on a URL in Microsoft Word. In the past, regardless of
a user's selection of default browser, IE would launch in its place
when the user attempted to reach the Internet in this fashion.
Microsoft should not be permitted to automatically invoke its
middleware products despite a contrary choice by a consumer or OEM.
III.C.5
In this section concerning an OEM's freedom to promote a
competing IAP, the settlement must either identify what a
``reasonable technical specification'' is or otherwise
remove that determination from Microsoft's sole discretion.
Otherwise, Microsoft will be able to block OEMs from featuring
competing IAPs for virtually any reason, or else impose
anticompetitive requirements, such as the use of Microsoft's
proprietary protocols, before a competing IAP is allowed on the
desktop. Proposed Additions to Follow RPFJ
III.C
H. A Provision That Prohibits Microsoft From Commingling Must Be
Added
A provision that reads similarly to the Litigating States'
proposed 1 should be adopted to prevent Microsoft from
repeating the illegal conduct that the Court of Appeals found it
engaged in by commingling the code of its IE browser with the code
for its Windows operating system. A restriction on the practice of
binding middleware to the operating system is essential to restoring
competition by making the OEM distribution channel a viable option
once again for software vendors. See Litigating States' 1. Such a
provision will have the salutary collateral effect of preventing the
exceptions contained in RPFJ III.H from rendering the
substance of sections III.C and III.H meaningless, as well as
supporting innovation. See Shapiro Decl. at 23 (stating that an
anti-binding provision in the Final Judgment, similar to the one
proposed here, ``strikes an excellent balance between the
consumer benefits that can arise when Microsoft adds functionality
to its operating system and the benefits that consumers enjoy when
new and improved software is developed independently of Microsoft,
especially if that software may serve a role in eroding Microsoft's
monopoly position. By allowing OEMs to choose whether to make
Microsoft's Middleware Products or rival software directly available
to end-users, OEMs will have the incentive to experiment to best
serve consumers' interest.'').
I. A Provision Determining The Relative Prices Of Unbundled
Versions of Windows Must Be Added
Either as part of the provision dealing with the binding of
middleware or elsewhere in the decree, there must be a provision
requiring Microsoft to differentiate its product prices based on an
OEM's selection of the Microsoft middleware products, if any, that
it chooses to bundle with the Windows operating system. Such a
mechanism must ensure that ``stripped-down'' versions of
Windows cost less than the fully loaded version in a proportion that
properly reflects the value of middleware products not included.
Failure to provide a pricing mechanism, such as those contained in
States' proposal 1 and 3(b), removes any incentive
OEMs have to create software packages composed of competing
middleware products.
Several such mechanisms are possible. The Final Judgment
provided that pricing be guided based on bytes of code. See Final
Judgment 3(g)(ii). SBC believes it would be preferable
to allocate costs between the operating system and the removed
middleware based on measurements of ``function point
code.'' The International Function Point Users Group Counting
Practices Manual is a generally accepted, objective industry
standard for measuring non-multimedia software (which excludes games
and training software) and estimating software costs using an
existing code base. See T. Capers Jones, Estimating Software Costs
Function Point Analysis: Measurement Practices for Successful
Software Projects (1998); David Garmus and David Herron, Function
Point Analysis: Measurement Practices for Successful Software
Projects, 34-;61 (2000). Alternatively, SBC supports the use of
a pricing mechanism based on the fully allocated product development
costs for the operating system product and middleware products in
question. See Litigating States' � 1.
J. A Provision Requiring That Microsoft Continue To Offer
Predecessor Versions Of Windows Must Be Added
SBC recommends adoption of Litigating States' proposed
3. Section 3 mandates that Microsoft continue to license for 5
years its immediate predecessor version of Windows, at a price no
higher than the last price at which the predecessor version was
offered. This is a further means of preventing Microsoft from
commingling its middleware products with Windows without offering
OEMs, end-users and third parties the chance to buy a version of the
operating system that is both cheaper and without Microsoft products
bound to it. Prior versions of Windows typically have less Microsoft
middleware product bundled with or bound to the operating system,
and rely more heavily on accepted industry standards. As a result,
predecessor versions may be more easily configured to include non-
Microsoft middleware products.
K. Changes Must Be Made To RPFJ III.D and
III.E (Interoperability Disclosure)
[[Page 28620]]
Full interoperability is necessary to prevent Microsoft from
perpetuating its monopoly of the PC operating system market by
exercising control over server operating systems and software, and
Internet browsers, and using that control to eliminate the nascent
competitive threats posed by non-Microsoft server operating systems
and embedded devices.
Section 4 of the Litigating States' proposal achieves full
interoperability between (i) a Windows PC operating system and non-
Microsoft Middleware; (ii) a Windows PC operating system and a non-
Microsoft server operating system; (iii) Microsoft Middleware,
including Internet Explorer, and a non-Microsoft server operating
system; and (iv) Microsoft and non-Microsoft server operating
systems. Litigating States' 4.
To achieve full interoperability, the disclosure must include
``all APIs, communications interfaces and other technical
information related to interoperability.'' Litigating States'
4. Only in this way can the ``seamless
interoperability,'' recognized by the government in the CIS as
the operative goal, be achieved. CIS at 38.
The timing of required disclosure under the proposed settlement
is equally deficient, because it provides Microsoft sufficient
flexibility to use the timing of a disclosure to gain a competitive
advantage for its own software. Microsoft should be required to
disclose the technical information related to interoperability in a
``timely manner,'' which should be defined as the earliest
of the following: (i) when it is disclosed to Microsoft's
applications developers; (ii) when it is used by Microsoft's
Platform Software developers; (iii) when it is disclosed to any
third party; or (iv) within 90 days of a final release of a new
version of Windows, and no less than 5 days after a material change
is made by Microsoft after the most recent beta or release candidate
version. This is the timing provision employed by both the District
Court's Final Judgment and the Litigating States' proposal. Final
Judgment 3(b); Litigating States' 22 (pp).
Proposed Additions To Follow RPFJ III.E
L. A Provision That Requires Mandatory Distribution of Java Must
Be Added
The Litigating States' proposal properly requires Microsoft to
distribute Java, free of charge, for ten years. Litigating States'
13. The copy of Java that is distributed must be
``a competitively performing Windows-compatible version of the
Java runtime environment (including the Java virtual machine and
class libraries) compliant with the latest Sun Microsystems
Technology Compatibility Kit.'' Id. The proposed settlement
does not require Microsoft to distribute a version of Java that is
compliant with the latest technology from Sun Microsystems, and that
is fully compatible with the most recent version of Windows. This
requirement is critical to ensure full interoperability between IE
and all non-Microsoft server operating systems, and will also help
to erode the applications barrier to entry that shields Microsoft's
monopoly power.
M. A Provision Prohibiting Interference With Or Degradation Of
Non-Microsoft Middleware Must Be Added
The government's own expert explained the need for an
affirmative prohibition against such interference by Microsoft as
necessary to prevent one of the more insidious methods of monopoly
maintenance:
Microsoft has demonstrated its ability and incentive to hinder
the adoption of rival middleware through a variety of exclusionary
tactics such as it employed against Netscape's browser. Once
Microsoft is enjoined from employing the tactics it has already
used, Microsoft will have an incentive to switch to new, substitute
tactics having the same effect. One such tactic is to intentionally
degrade the performance of rival middleware interoperating with
Windows.
Shapiro Decl. at 22. The Final Judgment and Litigating States'
proposal explicitly prohibit Microsoft from knowingly impeding or
degrading the performance of non-Microsoft Middleware on a Windows
PC. Final Judgment 3(c); Litigating States'
5.
The Litigating States' proposal also properly requires that if
Microsoft takes any action that would ``interfere with or
degrade the performance of non-Microsoft Middleware,'' it must
give 60 days advance notice to the affected ISV. Litigating States'
8 5. The proposed settlement does not contain a knowing interference
provision. Since the Court of Appeals specifically affirmed the
findings upon which this remedy was based, the decision to delete it
is difficult to understand. CA at 65-;66. To the contrary, the
proposed settlement actually gives Microsoft the incentive to make
slight changes to its operating system product, as part of a
``minor upgrade,'' that would have the effect of impeding
the interoperability of non-Microsoft middleware with a Windows PC
operating system. See RPFJ III(D), VI(J). If the
change is a part of a ``minor upgrade,'' Microsoft is not
required to disclose the APIs and other technical information
required to ensure full interoperability. Id.
N. A Provision Requiring Microsoft to Comply With Industry
Standards Must Be Added
To create a level playing field and foster competition, a
provision must be added to ensure that open or industry standards
continue to be promoted and used by Microsoft as part of the Windows
PC operating system environment. An industry standard is any
technical standard that has been approved by (or has been submitted
to and is under consideration by) any independent, publicly
recognized organization or group that sets standards. If Microsoft
can replace an open industry standard with its own proprietary
codes, it will prevent full interoperability and thus reinforce the
applications barrier to entry.
As a result of Microsoft's monopoly power in the PC operating
system market, it is able now, and in the foreseeable future, to
depart from industry-recognized standards for its own competitive
advantage. This is accomplished in two ways. First, Microsoft has in
the past made subtle, undisclosed changes to a number of recognized
industry standards that are used to execute functions by the Windows
operating system. Even a small modification can severely impede the
ability of a competing operating system or middleware product from
interoperating with a Windows operating system product.\35\ Second,
any new or modified standards implemented by Microsoft become, as a
practical matter, an industry standard within a very short period of
time because of the high percentage of Windows users.
---------------------------------------------------------------------------
\35\For example, if Microsoft made subtle changes to the
industry-recognized audio Codec standard, applications that used
audio features, such as Real Player, would not be able to
interoperate with a Windows PC operating system. If Real Player
continued to employ the industry-standard Codec in its program,
Windows PC users would be able to download that Codec to their
Windows operating system, but would face the very real possibility
that the program would not function with their Windows PC operating
system as well as the competing Microsoft product, Media Player,
which would, of course, be designed to run with Microsoft's modified
Codec.
---------------------------------------------------------------------------
Microsoft's Brad Silverberg explained this Microsoft strategy in
the context of a previous standards battle with Novell's Netware:
It seems very clear to me that if you are currently on the
losing end of a standard battle, your strategy needs to be: (a)
adopt the standard so you don't force customers to choose between
you and the standard, (b) bootstrap that so you have a reasonable
installed base, (c) begin to change the standard on top of it to get
people dependent on ``you.'' Once people are dependent on
you .... you ``start to turn the crank.''
Henderson Decl. 35 (internal citations omitted).
To ensure that Microsoft's practices are changed and to ensure
full interoperability, the settlement must include a provision that
requires:
(i) that Microsoft continue to use and promote all open or
industry-recognized standards;
(ii) that Microsoft not alter or modify an industry standard in
any way, except to the extent that such modification is compliant
with, and approved by, an independent, internationally recognized
industry standards organization;
(iii) that Microsoft disclose any change it implements to an
open or industry-recognized standard, in a ``timely
manner,'' as that phrase is defined in the Litigating States'
Proposal 22 (pp);
(iv) that Microsoft assist any other software provider to
achieve interoperability with any protocol Microsoft uses in any
such situation in which Microsoft is the holder of the reference
protocol implementation; and
(v) that Microsoft work with all other holders of reference
protocols to achieve and ensure interoperability with any protocol
Microsoft uses, in any situation in which Microsoft is not the
holder of the reference protocol implementation.
There are over 300 separate standards used by any PC operating
system to function within a local area network or on the internet.
The following protocol families are among those that are
particularly important to Internet-based computing: (1) the TCP/IP
protocol family, which is universally used to transmit data and
services on the Internet; (2)
[[Page 28621]]
the H.323 protocol family as defined by the ITU, which supports
video and voice communications and is often referred to as a Voice
over IP (VoIP) protocol; (3) the SIP protocol family, which supports
video and voice communications, as well as instant messaging; and
(4) the HTML/HTTP protocol family, as defined by the World Wide Web
Consortium (W3C), which supports web browser and server protocols.
A Provision Requiring Open-Source Licensing for Internet
Explorer Must Be Added
Microsoft's control of IE is an integral part of the
anticompetitive conduct that has maintained Microsoft's monopoly
over the PC operating system market. As the Litigating States
propose, to remedy these anticompetitive acts and prevent
recurrence, the source code for IE must be disclosed on a royalty-
free and non-discriminatory basis. See Litigating States'
12.
P. Changes Must Be Made To RPFJ III.F (Retaliation
Against Any Third Party)
Sections 8 and 9 of the Litigating States' proposal adequately
address retaliation issues. Alternatively, the following revisions
should be made in the RPFJ:
III.F.1
The retaliation provision must be revised to prohibit
retaliation not only against the limited category of ISVs and IHVs,
but against any third party. For the reasons discussed in connection
with Section III.A above, the continually evolving nature of
computer and software technology and business practices means that,
as a practical matter, new threats to Microsoft's operating system
monopoly could come from as-yet unidentified entities. In light of
Microsoft's record of past retaliatory conduct, and the durability
of its monopoly power, such ``nascent'' threats must be
protected wherever and however they emerge.
The term ``retaliation'' must to be defined broadly to
include ``any threats or any actions that directly or
indirectly have an adverse effect'' on third parties. See
discussion of RPFJ III.A supra.
The scope of conduct by third parties for which Microsoft may
not retaliate must be broadened. The provision should prohibit
adverse action by Microsoft based ``directly or indirectly on
any actual or contemplated action'' by the protected party. See
discussion of RPFJ III.A supra.
The ban on retaliation should be based on any action or
contemplated action by a third party ``to develop, use,
distribute, promote, or support any non-Microsoft product or
service.'' See Litigating States' 8. The proposed
settlement prohibits retaliation based on a party's
``developing, using, distributing, promoting or supporting any
software that competes with Microsoft Platform Software or any
software that runs on any software that competes with Microsoft
Platform Software.'' Based on the inherent problems with the
definition of Microsoft Platform Software, this limitation narrows
the types of products within its scope. For example, it would be
permissible for Microsoft to retaliate for a party's distribution or
use of an application that competes with Office, because Office is
not ``Microsoft Platform Software.''
III.F.2
At a minimum, the exception in this provision must be deleted.
It would allow Microsoft to enter agreements that limit an ISV's
ability to develop, promote or distribute competing software,
``if those limitations are reasonably necessary and of
reasonable scope and duration in relation to a bona fide contractual
obligation of the ISV to use, distribute or promote any Microsoft
software.'' RPFJ III.F.2. This creates a loophole
for Microsoft to restrict an ISV's ability to develop products that
compete with Microsoft products. Given its proven history of
anticompetitive conduct, Microsoft should not be entitled to an
automatic opportunity to use its market power to obtain even
``reasonable'' exclusive dealing agreements. If Microsoft
and an ISV believe a particular agreement has procompetitive
justification, they can seek prior approval from the government. In
the alternative, this entire provision may be deleted if a provision
as discussed in V.Q below is added. See also Litigating
States' 11; Final Judgment 3(h).
III.F.3
This broad savings clause, which provides that Microsoft is not
prohibited from enforcing agreements with any ISV or IHV, or any
intellectual property right, that is not inconsistent with the
proposed settlement, should be removed. It is unnecessary and vague,
and invites further litigation. Given the overwhelming record of
Microsoft's anticompetitive conduct, the burden should not be placed
on the government or a third party to prove that Microsoft did
something ``inconsistent'' with the decree.
Proposed Additions to Follow RPFJ III.F
Q. A Provision Prohibiting Microsoft From Entering Agreements
That Limit Competition Must Be Added
A provision should be added, such as Litigating States' proposal
11, prohibiting Microsoft from offering consideration to any
competitor in exchange for the competitor's agreeing to refrain from
developing or distributing any product or service that competes with
any Windows Operating System or Middleware Product. See also Final
Judgment 3(h). Such a provision is necessary to prevent Microsoft
from seeking anticompetitive contracts that divide markets or
otherwise limit competition, regardless of whether the
``terms'' are reasonable. See discussion of RPFJ
III.F.2 .supra.
R. Changes Must Be Made To RPFJ III.G (Ban on
Exclusive Dealing)
SBC believes that Section 6 of the Litigating States' proposal
is consistent with the public interest on the issue of exclusive
dealing. Alternatively, the following changes should be made in the
RPFJ:
III.G.1
The provision governing exclusive dealing must be extended to
third parties. See Litigating States' 6; Final Judgment
3(e). The government previously acknowledged that a
general ban is necessary because it is too difficult to predict
which entities Microsoft might seek to tie up in exclusive
arrangements over the next several years. See Shapiro Decl. at 19.
Microsoft should be prohibited from granting consideration to
any third party that agrees to ``restrict its development,
production, distribution, promotion or use of, or payment for, any
non-Microsoft product or service; distribute, promote or use any
Microsoft product or service exclusively or in a minimum percentage;
or interfere or degrade the performance of any non-Microsoft product
or service.'' See Litigating States' 6; Final
Judgment 3(e). The proposed settlement would prohibit
only agreements that grant consideration for the entity to agree to
distribute, promote or use Microsoft Platform Software exclusively
or in a fixed percentage. The settlement terms do not prohibit
restricting the development or use of non-Microsoft products or
services and interfering or degrading the performance of non-
Microsoft products or services. Yet such conduct is blatantly
anticompetitive and entirely consistent with Microsoft's record of
proven illegal conduct.
The exception allowing exclusive or fixed percentage
arrangements if Microsoft obtains a representation that it is
``commercially practicable'' for the entity to provide
equal or greater distribution of a competing product, should be
eliminated. This loophole permits Microsoft to demand parity with
any product that it considers a competitor in an agreement with a
third party that promotes or distributes a competing product. As a
proven monopolist, Microsoft should not be given what is effectively
an affirmative right to demand that others carry its products. The
opportunities for coercion are far too great.
III.G.2
The proposed settlement must be changed to prohibit Microsoft
from entering into agreements with IAPs and ICPs that condition
their placement on the Windows desktop on their agreement ``to
distribute, promote or use any Microsoft product or service.''
See Litigating States' 6(e); Final Judgment
3(e)(iv). The proposed settlement only prohibits
agreements that condition placement of the IAP or ICP on the Windows
desktop upon the IAP or ICP's refraining from promoting or using
software that competes with Microsoft Middleware. This creates a
loophole permitting Microsoft to condition desktop placement on the
IAP or ICP agreeing to distribute, promote or use other Microsoft
products or services exclusively. Given Microsoft's proven history
of anticompetitive exclusionary conduct, it should be barred from
any kind of exclusive dealing arrangement.
The provision that permits exclusive dealing arrangements for
joint ventures, joint developments or joint services arrangements
should be deleted. It would permit Microsoft to avoid the general
prohibitions on exclusive dealing, which are essential to restoring
competition, merely by restructuring prohibited agreements as
``joint ventures.'' Once again, if Microsoft believes it
has a legitimate, procompetitive basis to enter into a true joint
venture agreement, it can seek authorization to do so.
The provision that excludes licensed-in intellectual property
should be deleted. Like the ``joint venture'' loophole, it
would allow Microsoft to evade the exclusive dealing ban by
including in an agreement, licensed-in intellectual property of
nominal value.
g. ChanGes Must Math To RPFJ III.H (OEM/End User
Control the Desktop)
[[Page 28622]]
Section III.H focuses on OEMs' ability to offer and promote and
end-users' ability to choose competing middleware products. Yet the
provision undermines this purpose in several ways, including: (1)
preventing either OEMs or end-users from removing Microsoft products
from the operating system; (2) permitting Microsoft to override or
alter OEM and end-user choices of competing middleware products; and
(3) delaying the implementation of the provision to such an extent
as to render it meaningless for a fifth of the lifespan of the
decree. To remedy these flaws, the following changes are suggested:
III.H
The first sentence, which delays the applicability of the
section for the earlier of 12 months after submission of the
settlement to the Court or the release of the first service pack for
Windows XP, should be revised to delete the introductory phrase.
Microsoft should be required immediately to implement the changes
necessary to comply with the OEM/end-user control provisions. This
would also maximize the amount of time the provision is in force
before the relief expires.
The last sentence of this section, which follows the
``Notwithstanding'' clause, should also be eliminated. All
Microsoft Middleware Products should be required to comply with the
substantive provisions of sections III.C and III.H. There is no
justification for a temporal cut-off point of any kind (such as
seven months prior to the last beta test of an operating system
release, contained here) for new products, which should be developed
with a focus on meeting, not evading, the requirements of the
relief.
III.H.1
Subsection 1 allows OEMs and end-users to enable or disable the
automatic invocation of a Microsoft middleware product or to remove
the icon for that product. A subsection (c) should be added that
allows end-users and OEMs to add or remove any Microsoft Middleware
Product from the operating system, not just the icon for that
product. The additional language will eliminate the problem of
automatic invocation of Microsoft middleware under certain
circumstances and open up hard drive space to add additional
programs. This provision will only be effective, however, if there
is a prohibition against the binding of middleware to the operating
system.
III.H.3
The CIS states that section III.H.3 prevents automatic
alteration of an OEM configuration (CIS at 48), but subsection
III.H.3(b) undercuts this commitment. It would permit Microsoft to
prompt an end-user to ``sweep the desktop'' of all
selected icons and middleware choices 14 days after the initial
boot-up of the computer and thereafter. Because of the possibility
of consumer confusion, this has the potential to undo the very OEM
and end-user control Section III.H is intended to allow. Subsection
(b) therefore should be eliminated. There is no need for Microsoft
ever to seek end-user confirmation that he or she wants to reverse
an OEM configuration that includes competing products, or ever to
prompt the end-user to ``sweep away'' all previous non-
Microsoft product choices.
The ``Notwithstanding'' Clauses In This Provision Must
Be Deleted
The ``Notwithstanding'' clauses at the end of section
III.H allow Microsoft to disregard OEM and consumer choice whenever
Microsoft decides that its products must be invoked to operate with
its servers or when the Non-Microsoft Middleware Product fails to
implement a ``reasonable technical specification'' (a term
that is left to Microsoft to define). The clauses should be
eliminated in their entirety. The exceptions contained in these
clauses are so broad that they threaten to render the substance of
section III.H meaningless by permitting Microsoft to override an
OEM's or end-user's middleware default choice at will.
T. Changes Must Be Made To RPFJ III.I (Mandatory
Licensing)
The proposed settlement allows Microsoft to charge a royalty for
the required license of technical information concerning
interoperability, and to obtain a cross-license to the licensee's
technical information used to interoperate with a Windows PC
operating system or Microsoft Middleware. As the government
recognized in the earlier remedy proceedings, royalty and cross-
licensing requirements are anticompetitive. Final Judgment
3(i); see also Gov't D.Ct. Sum. Resp. at 14. As the
Litigating States have proposed, Microsoft should be required to
license the necessary technical information on a royalty-free basis,
and without the tight to a cross-license from the licensee.
Litigating States' 15.
U. Changes Must Be Made To RPFJ III.J (Limitations
on Mandatory Licensing)
Section III.J of the proposed settlement is a loophole and must
be deleted. All APIs, communications interfaces and technical
information that must be disclosed to ensure interoperability serve,
at least in part, an authentication or encryption function related
to the security of the operating system. Microsoft should not be
given an excuse to withhold disclosure of crucial technical
information for potentially anticompetitive purposes. Neither the
Final Judgment nor the Litigating States' proposal contains a
similar provision.
V. Changes Must Be Made To RPFJ IV And V
(Compliance And Enforcement)
In contrast to the proposed settlement, certain aspects of the
Litigating States' proposal would be far more effective in ensuring
that the intent and spirit of the final relief entered in this
action be effectively enforced:
As mandated by the Antitrust Division Manual and conceded by the
government as being ``customary in antitrust actions''
(Gov't D.Ct. Sum. Resp. at 20), the final decree should remain in
effect for ten years, not five, as prescribed by RPFJ
V. See Litigating States' 21 (b); Final
Judgment 6(c).
Pursuant to Rule 53 of the Federal Rules of Civil Procedure, the
Court should appoint a Special Master, who would be in a position to
immediately report violations directly to the Court and also
periodically report to the Court regarding Microsoft's compliance
with its obligations, instead of the Technical Committee prescribed
by the proposed decree. See Litigating States' 18.
Any decree should set forth specific sanctions for different
levels of violations and impose a strict, rapid, no-nonsense
timetable for the formal resolution of all complaints about
Microsoft's conduct. See Litigating States' 18(f).
A critical deficiency in the proposed settlement is the lack of
a requirement that anyone at Microsoft, including its designated
Internal Compliance Officer, certify periodically to the Court that
Microsoft is in compliance with its obligations. Indeed, no one is
in a better position than Microsoft to know whether it is in
compliance. For these reasons, the Court should require that any
decree include a self-reporting requirement, providing that a senior
executive of Microsoft certify periodically under oath to the Court
that Microsoft is in compliance with its obligations, Such a
provision would further ensure that Microsoft takes its obligations
seriously.
Instead of limiting training in the decree to officers and
directors (RPFJ IV.C.3.a), the provision must require
officers, directors and all other employees that are in positions
that enable them to initiate or implement anticompetitive conduct to
read, understand and comply with the decree, as is customary in
antitrust consent decrees. See Litigating States'
17(c); Final Judgment 4(e).
W. Changes Must Be Made To RPFJ VI (Definitions)
The way the proposed settlement defines key terms significantly
restricts, and in many instances eliminates, the effect of the
proposed settlement's substantive provisions. SBC generally
recommends the adoption of the definitions contained in the
Litigating States' proposal 22. Some of the problems
posed by the proposed settlement's definitions relating to
middleware are as follows:
The definition of``Microsoft Middleware'' in section
VI.J must be eliminated. The term is defined in so restrictive a way
that it would exclude, among other things, any middleware which is
bound to the operating system or as to which Microsoft has not
sought trademark protection. It should be replaced with a
straightforward definition that applies to middleware irrespective
of whether it is Microsoft or non-Microsoft middleware, such as the
definition of Middleware contained in the Final Judgment
7(q). See also Litigating States' 22(w).
The proposed settlement's definition in section VI.K of
``Microsoft Middleware Product'' limits what are
considered Microsoft middleware products to specific categories of
products. It should be replaced by Litigating States' proposal
22(x), which is both a broader and more accurate
description of a Microsoft Middleware Product, as it accounts for
both middleware products currently in existence and products that
will be developed in the future.
Subsection (ii) of the definition of``Non-Microsoft
Middleware Product'' requires that one million copies of the
product be distributed in the previous year for the product to be
considered a competing middleware product. See RPFJ
VI.N. This definitional limitation excludes new
competing products from a number of the proposed settlement's
protections, including those relating to the important OEM
distribution channel.
[[Page 28623]]
The last sentence of the definition of ``Windows Operating
System Product'' grants Microsoft ``sole discretion''
to determine what constitutes a Windows Operating System Product,
and should be deleted. See RPFJ VI.U. The definition
should be objective and should roughly correspond to the definition
of ``Operating System Product'' in the Final Judgment
7(v). The definition of ``Windows Operating System
Product'' should also include prior versions of Windows,
including Windows 95 and Windows 98, as well as versions of
Microsoft's operating system developed for non-PC products, such as
Windows CE. See Litigating States' 22(rr).
VI. CONCLUSION
For the reasons stated herein, the proposed settlement with
Microsoft is contrary to the public interest and should be
substantially modified or rejected entirely.
January 28, 2002
Respectfully submitted,
PAUL K. MANGINI Vice President & Assistant General Counsel
PATRICK J. PASCARELLA Senior Counsel
WILLIAM R. CALDWELL Senior Counsel
SBC COMMUNICATIONS INC.
175 East Houston
San Antonio, Texas 78205
DONALD L. FLEXNER
DAVID A. BARRETT
STEVEN I. FROOT
NICHOLAS A. GRAVANTE, JR.
HARLAN A. LEVY
BORES, SCHILLER & FLEXNER LLP
5301 Wisconsin Avenue, N.W.
Washington, DC 20015
Telephone: (202) 237-;2727
Facsimile: (202) 237-;6131
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:49pm
Subject: Microsoft settlement
To whom it may concern,
As part of the public comment on the proposed Microsoft
settlement, I am objecting to the prosecution of Microsoft by the
Department of Justice and the various Attorney Generals' offices. I
understand that with a gun to its head Microsoft wants this
settlement. However, the settlement is unjust. As a consumer,
Microsoft has benefited me. Sometimes I buy Microsoft, but not
always. I use operating systems and browsers produced by other
companies. However, Microsoft's leadership in creating software that
has been selected by the marketplace as the dominant products
created a computing revolution that has changed my life through
higher income. In contrast, the government's prosecution of
Microsoft has harmed me.
The club-fisted actions by the government in this matter have
adversely affected the development of products that would have
benefited me. First, the government's attack on Microsoft distracted
their expansion in the enterprise server software market which is
dominated by companies that have supported the government's efforts.
Resources Microsoft could have been used to enhance products that
would have benefited me professionally were diverted to pay for
attorneys instead of programmers. Second, the government's attack on
Microsoft caused the high tech meltdown in the economy by depressing
the equity markets. Consequently, jobs were lost and innovative
products never made it to market.
Because of the coercion used by the government, I have several
objections to the proposed settlement.
First, the settlement imposes restrictions on Microsoft's
ability to make contracts. This infringement on Microsoft's right to
enter contracts on its own terms is akin to the ``badges of
slavery'' prohibited by the 13th Amendment. Consequently, while
Microsoft retains title to its property, the government is
specifying the terms under which it may exercise its own property.
Thus, our government is pursuing fascist economic policies that
obliterate the rights of private property.
Second, the settlement mandates the disclosure of proprietary
information by Microsoft. This attack on intellectual property
rights undermines our economy. Further, it contradicts the foreign
policy of our government that seeks to protect the intellectual
property rights of Americans abroad. Although there is some recourse
to prevent the dissemination of information affecting security, the
settlement makes no adequate provisions for resolving disputes
between Microsoft and the government on these security claims to
protect consumers. Therefore, this settlement puts the property and
privacy of Microsoft customers in jeopardy.
Third, this settlement infringes constitutional protections
Microsoft, and all Americans, have from unreasonable searches. The
presence of government agents in the Microsoft facility at the
company's expense with unlimited access to confidential Microsoft
information is an affront to our sense of ordered liberties. If this
settlement were instead a warrant, the court would deny it as overly
broad and unreasonable. In addition, the settlement does not specify
sanctions against the government for potential violations of the
confidentiality agreements.
Finally, if the government was serious about the danger
Microsoft pose to consumers, the Justice Department and the state
Attorney Generals' offices should have promised to not use Microsoft
products during the term of the settlement. That would let the
government work in an environment of incompatible software products
that the market has freely chosen to avoid. In summary, the
government's prosecution of Microsoft and this settlement is a
threat to our individual liberty because it permits the government
to destroy the wealth created by our citizens arbitrarily.
Jim Woods
21560 Iredell Terr.
Ashburn, VA 20148
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:49pm
Subject: Microsoft Settlement
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse:
Please register my emphatic opposition to the subject Proposed
Final Judgement (PFJ) [in re the conjoined Civil Actions No.
98-;1232 (CKK) and 98-;1233 (CKK), collectively termed the
Microsoft Antitrust Case]. My reasons for opposing this PFJ are
based upon review and thoughtful consideration of the following:
a) Microsoft's extensive and consistent record of gross
anticompetitive abuses in the software industry that gravely harmed
competitors, eliminated consumer freedom of choice, and erected
illegal barriers to innovation by competitors--;abuses for which
Microsoft has been adjudicated to be guilty of violations of the
Sherman Antitrust Act in this Case--;which Microsoft will gladly
continue;
b) the provisions of the PFJ, which appear on the surface to
offer substantive remedies but in fact, upon careful reading,
provide no effective or enforcable restrictions to prevent Microsoft
from continuing its anticompetive practices to extend its monopoly
illegally - precisely the offense that requires remedy;
c) the glaring omissions of the PFJ, which is blind to current
conditions in the software industry and Microsoft's continuing
predatory tactics there and in contiguous markets such as Internet
enabled ecommerce, mass media delivery and digital rights
management, and definition of worldwide network standards, and which
further offers no forward looking constraints to prevent Microsoft
from proliferating such oppressions of suppliers, customers,
competitors, and ultimately consumers and fair markets both within
the US and internationally. Microsoft has proven that it is willing
to use any means or pretense to avoid or circumvent restrictions on
its practices (see the earlier Consent Decree). Microsoft is like a
twice-convicted burgler proposing to bargain for parole by promising
not to commit burglary again--;except if (i) the front door is
open, (ii) a window is unlocked, or (iii) the back door can be
jimmied open easily. Microsoft can't be trusted to abide by any
restrictions on its business acts in good faith. The Judgement of
the Court should therefore be in imperative terms without any
loopholes Microsoft can use to subvert the Court's intent.
Unfortunately, the PFJ is as far from such a clear standard as
Microsoft might wish. No wonder Microsoft agreed to this. Far from
offering even minimally adequate remedies, the PFJ is a perverse
gift to Microsoft in that it would enshrine in a legal settlement
the permission to continue, extend, and expand Microsoft's predatory
actions and anticompetitive behaviors. For every declaration of
prohibited future conduct or requirements to treat other market
players and consumers fairly there are entire paragraphs and
clauses, definitions and exclusions, which Microsoft can and
predictably will employ to subvert both the letter and intent of
these supposed remedies.
Furthermore, the face-to-face contact between Steve Ballmer (he
is Microsoft's CEO and President) and Dick Cheney (Vice President of
the US) as negotiations were ongoing to draft the PFJ but not
reported by either party in violation of the Tunney Act,
[[Page 28624]]
deserve censure of both sides by the Court, if not appointment of a
Special Prosecutor to investigate political and adminstrative
corruption.
Don't sell the software industry down the river, allow a
monomaniacal company to unfairly wield its monopoly to take over
several additional sectors of the economy, destabilize international
standards for interoperability in ecommerce and communications, and
continue to prey upon businesses, marketplaces, and consumers
worldwide. Reject this PFJ. Write a fitting Judgement, with teeth!
Respectfully submitted,
Robert A. Munro
U.S. Citizen
From: Rick Hornbeck
To: Microsoft ATR
Date: 1/28/02 11:50pm
Subject: Microsoft Settlement
To Whom It May Concern:
I have attached three documents that explain my position on the
Microsoft Antitrust Case, along with a proposed solution. I also
attached a copy of my resume to establish my credibility and to
assist you in determining the value that you should place on my
recommendations. I do not believe that the Technical Committee will
have the necessary access to key Microsoft personnel or the
enforcement authority, either directly or indirectly, to make a
difference.
Although the Proposed Settlement contains several good measures
for curtailing some of Microsoft's anti-competitive actions, it does
not go far enough.
I believe that the solution I propose in the first attached
document will level the playing field to the degree needed to make a
long-term positive impact.
Regards,
Rick Hornbeck
Hornbeck Consulting
556 S. Fair Oaks Ave., Suite 346
Pasadena, CA 91105
Rick--;[email protected]
(cell) + 1 323 363-;2151
(efax) + 1 208 275-;1245
January 28, 2002
U.S. Department of Justice
Anti-trust Division
[email protected]
To Whom It May Concern:
I am writing to convey my proposed solution to the Microsoft
anti-trust case. The dilemma is how to prevent Microsoft from using
its monopolistic power in the future, to weaken competition,
consumer choice, and innovation. Breakup along product lines is
problematic due to Microsoft's successful public relations
disinformation campaign Microsoft has astutely intertwined its
various products so tightly that any breakup of the corporation is
unrealistic, if it occurs along product lines, requiring each new
organization to become its own, independent profit center. At least
that is what Microsoft would have us believe.
Although such a restructuring is possible, Microsoft's argument
would be that it would reduce the value of each product by
approximately 30% because it would eliminate the benefits derived
from their capability to ``interconnect,'' and exchange
data `seamlessly.'' In my opinion, this interconnectivity
argument is flawed, as virtually the same quantity and quality of
interconnectivity has existed amongst Microsoft's products for
many years. Microsoft is notorious for inflating the value of its
product's features in the media, in advertising, and in supposedly
objective articles written by shills in technical journals. However,
it has failed to introduce significant new interconnectivity feature
enhancements over the past few years, and it is unlikely that any
new advancements or features in this area are forthcoming.
In addition, the other major vendors in the desktop software
market already offer the same level of interconnectivity between
their own products and Microsoft's products, in the only area that
really matters--;cutting-and-pasting between applications.
Nevertheless, any government or court-ordered solution must confront
Microsoft's strong public relations and marketing machine, which
means that the product line-based breakup model is at best a steep,
uphill battle.
Proposed alternative solution--;impose structural changes to
Microsoft's business processes, not its organization.
My recommended solution requires looking at the situation from a
different perspective--;instead of imposing structural changes
on the organization, impose structural changes to Microsoft's
business processes.
My recommended solution is as follows:
1. Require Microsoft to develop and support versions of its
major office products that are fully functional on other popular,
current and future operating systems, such as Linux, Java, and Mac
OS;
2. Until item (1) is achieved, impose a moratorium on the
development and release of the following:
a. New Microsoft operating systems or significant upgrades to
existing operating systems (except for security-related enhancements
or upgrades);
b. Internet Explorer browser (except for security-related
enhancements or upgrades);
c. Office suite product upgrades (except for security-related
enhancements or upgrades).
3. Obviously this approach will impose a significant burden on
the court or its designated representative to develop and rigorously
apply a method for monitoring Microsoft's development activities,
both at its own facilities, and at its subcontractor's facilities.
Nevertheless, I believe this approach, although not without its
challenges, is reasonable and realistic, and, if properly enforced,
through a process or mandatory quarterly reporting to the court, is
likely to achieve the desired objective.
Some amount of financial profit from the licensing of its
products on alternative operating systems is appropriate, as further
encouragement for Microsoft's enthusiastic cooperation.
This letter represents a rough outline of my proposal. If you
would like to discuss it further, please feel free to contact me.
You are free to use my ideas that I have enclosed in this letter in
your prosecution of Microsoft's anti-competitive behavior, or in a
related matter.
Regards,
Rick Hornbeck
Rick Hornbeck, M.S., J.D.
Hornbeck Consulting
556 S. Fair Oaks Ave., Suite 346
Pasadena, CA 91105
(cell) 323-;363-;2151
THE TROUBLING TRUTH ABOUT ``TRUST'' ON THE INTERNET
An objective survey of the security risks associated with
ActiveX and its impact on Microsoft's share of the Web browser
market.
(by Rick Hornbeck, M.S., J.D. 1997)* BACKGROUND
Where did ActiveX Come From and Why Doesn't It Go Away?
By now it is generally accepted that Microsoft and Netscape are
engaged in a great World-Wide-Web (WWW) browser war. It is also
generally understood that Microsoft's almost limitless revenue from
its Windows operating system software and related products will
allow it to keep giving it's Internet Explorer browser away free for
the next 20 years, while Netscape has to charge customers for it's
products. What is less well understood is why ActiveX and the
Authenticode securitymodel represent the other two prongs of
Microsoft's Internet marketing strategy.
As recently as early 1995 Microsoft was still unsure of the
Internet's significance and the role it would play in the PC desktop
market. Microsoft believed it could continue its phenomenal year-on-
year profit growth relying solely on new sales and paid for upgrades
of its existing products. However, these sales must in turn rely on
its ability to maintain its grip and influence on the distribution
channel, on the corporate purchasers, the original equipment
manufacturers (OEMs) and on the standards process. (For example,
according to the Microsoft 1996 Annual Report, OEM channel revenues
were $1.18 billion in 1994, $1.65 billion in 1995, and $2.50 billion
in 1996.)The primary source of OEM revenues is the licensing of
desktop operating systems. As such, Microsoft's OEM channel revenues
are highly dependent on Windows-compatible PC shipment volume.
During 1995 armies of software developers and consumers launched a
blitzkrieg against Microsoft's PC desktop dominion, penetrating the
Windows defenses everywhere with dynamically distributed Java
applets and gaining over 70% of the market for Internet browsers.
Microsoft quickly realized that the confluence of Java with
Netscape's browsers had the makings of a platform-independent de-
facto industry standard, which would empower users to buy more non-
``Wintel'' (Windows operating system on an Intel
processor) desktop PCs. The Internet gave Microsoft a vision of it's
impending mortality. In response, on Pearl Harbor Day, December 7,
1995, Bill Gates declared war, announcing that ``[t]oday, the
Internet is the primary driver of the new work we're doing across
our entire product line.''
The Microsoft Web servers took 8,000,000 hits on the first day
of their campaign. After his two-hour public presentation Gates told
National Public Radio in an interview, ``Well, we've got to
make sure that we're leading the
[[Page 28625]]
way on the opportunities the Internet represents.''
``Netscape has two great strengths,'' Gates admitted.
``They've got very high browser market share, and they've got
the attention of the world .... It's very important to increase the
popularity of our browser.''
Microsoft executive vice president Steve Ballmer put it bluntly
when he said, ``[h]ave no confusion in your head: Job one for
us right now is the Internet and defeating Netscape.'' Of his
Mountain View, Calif., rival in Internet software, Ballmer says,
``They're simply our smartest competitor.''
It was against this backdrop that Microsoft launched its
triumvirate Internet marketing strategy, using the parasitic
relationship between Authenticode and ActiveX to increase the
popularity of Internet Explorer.
INTRODUCTION
ActiveX and Java are ``mini-programs'' that can be
downloaded from a Web site and executed directly on a user's PC.
Unfortunately ActiveX mini-programs, or ``components'' or
``controls'' can reformat a user's hard drive, or copy
personal files to a remote server on the Internet, or do any number
of harmful things to a user's PC without the user's authorization or
knowledge. A malicious hacker or terrorist could write one of these
downloadable and executable programs and the user-victim has no
reasonable way of either stopping it's attack once the control has
gained access to their PC or reliably preventing it from gaining
access in the first place.
The user has several ``unreasonable'' means of
minimizing her risk: she can permanently disconnect her PC from the
Internet, depriving herself of its benefits. She could browse only
those Web sites that she ``knows'' do not contain harmful
or malicious controls (``safe zones''), although the
possibility of a hacker either spoofing a Web site, or covertly
placing harmful controls into a ``known'' Web site exists.
She could configure her Internet Explorer browser to prevent all
ActiveX controls from downloading to her PC, and hope she does not
encounter one that is able to bypass her browser's security
configuration, which has been demonstrated in practice. Finally, she
could take her chances using Microsoft's ``Authenticode,''
or Netscape's or Sun Microsystems'' ``code-signing'',
trust-based security models that use public-key digital signatures
and independent third-party Certification Authorities (CAs). Each of
these unreasonable alternatives represents a different point on the
risk/benefit scale which each user should consider before exploring
the WWW.
However, this analysis is only necessary because Microsoft
created a previously non-existent security risk by introducing
ActiveX. As will be explained below, other software tools exist to
provide software developers with the same capabilities as ActiveX,
with virtually no security risk. Still, Microsoft has successfully
obfuscated the seriousness of these self-created security issues and
successfully redirected consumers attention' away from Netscape and
Java. In doing so Microsoft has also successfully achieved its goal
of creating the perception, in a very short period of time, that it
is a player in the Internet game.
Because ActiveX does not contain its own internal security
mechanism to restrict the actions of the program, Microsoft was able
to introduce the Authenticode trust model as a viable protection
solution. Because Authenticode uses public-key digital signatures in
combination with trusted third-party Certification Authorities, and
only runs on Internet Explorer, Microsoft sought to ``increase
the popularity of its browser'' by touting its use of this
``cutting-edge'' technology as evidence of its leadership
in the Internet software industry. At the same time it actively
castigated Netscape and other browser vendors for allegedly leaving
their users vulnerable to the hazards of ActiveX. Unfortunately, the
people that suffer from this Machiavellian marketing strategy the
most are the innocent netizens who ``reasonably'' allow
unproved and potentially dangerous controls to be downloaded to
their PCs leaving themselves vulnerable to the vagaries of malicious
programmers.
It would be too harsh to accuse Bill Gates of raising Microsoft
to is position of dominance through villainy or malice against his
customers, given the trends of modern business practices. However,
his continued promotion of Authenticode without acknowledging its
serious security defects would seem to indicate that its
effectiveness in mitigating security risks is subordinated to
creating the impression that Microsoft is a leader in the Internet/
Electronic Commerce industry. According to Eric Schmidt, Novell CEO,
``if Bill Gates continues with his strategies he could become
the most powerful person in the world, and that's not necessarily a
good thing.'' Simson Garfinkel wrote recently,
``Microsoft's ActiveX technology is the single greatest
technological threat to the future of the World Wide Web.
Microsoft's ActiveX promoters are either so blinded by their own
rhetoric that they don't see the danger of this new technology, or
else they are so cynical that they would destroy the very essence of
the Internet rather than compromise their market dominance.''
In a different industry, Microsoft's actions could be analogous
to a pharmaceutical/bio-engineering company releasing a virus or
disease into the general population so it could profit from the sale
of its potential cure. At the same time the pharmaceutical company
could also enhance its reputation by advertising that it's anti-
virus was created through the use of cutting-edge genetic
engineering techniques thereby establishing itself as a leader in
this field. However, for this analogy to be consistent the anti-
virus must only be effective for a small percentage of the
population. The rest of those exposed to the virus would remain
susceptible to its deadly effects at any time.
This article will explore the very real damage that can be
caused by harmful ActiveX controls, it will explain how Authenticode
is supposed to mitigate these security risks, and why it does not.
It will also explain why digital signature technology as currently
applied under the Authenticode model cannot assist most users in
adequately reducing their risk of injury from ActiveX because it
does not provide the user with the necessary means of assessing
whether or not the software they are considering downloading is
``safe.'' Bill Gates' vision of the future is a seamless
integration of the Internet, the World-Wide-Web and the Windows
operating system. According to Gates, when someone wants to e-mail a
spreadsheet or other file to someone else over the Internet, they
are not interested in going out and buying 14 different products to
make sure the file will be compatible with the recipient's software.
Instead what they want is a desktop environment that can provide
spreadsheet and any other kind of robust functionality, without
concern for the software or hardware on which it operates.
Most Internet software developers' share this vision
however they don't share Gates' vision for implementing it,
Microsoft believes this seamless integration should be based on
Windows and Microsoft's Internet Explorer (IE) browser whereas the
rest of the software industry favors Java because of its true
platform-independence. Today Java can run on virtually any hardware
or software platform in existence, including such varied platforms
as IBM mainframes and Personal Digital Assistants (PDA's).
Yet Microsoft continues increasing the popularity of its
proprietary browser by:
Marketing the benefits of ActiveX while simultaneously cross-
marketing Internet Explorer (IE) because IE is the only platform
capable of directly running ActiveX controls;
Continuing to give its IE browser away for free;
. Failing to live up to its promises made in the fall of 1996,
to disclose ActiveX's specifications to an independent standards
body, thereby preventing other browser manufacturer's from
supporting it in their products;
. Marketing IE as the only means available for user's to
purportedly protect themselves from the potential damage threatened
by its own hazard, ActiveX, and
. Cross-marketing Authenticode as a general-purpose Internet
security solution, thereby further reinforcing the perceived need
for IE, because it is the only browser capable of supporting
Authenticode.
A BRIEF COMPARISON AND CONTRAST BETWEEN ActiveX, JAVA AND
PLUGINS.
(1) Origin of ActiveX
ActiveX adds to the user's Internet Explorer-based Web browsing
experience by ``jump-starting'' Web site content,
providing a variety of multimedia effects, enhanced page layouts,
and executable applications, all of which are downloaded and run in
real-time over the Internet. According to Microsoft, over 1,000
ActiveX controls already have been written in C, C++ and other
languages for applications such as audio, video and live chat, all
of which complement the core technologies of today's Web environment
such as HTML, plugins, Java, cgi scripts and more.
According to Fred Langa, writing in Windows Magazine, ActiveX is
``... the fifth and most recent step in a long-developing
evolution [by Microsoft Laboratories] of data-sharing and
interoperability among applications.'' Essentially it is a
trimmed down version of Microsoft's OLE (Object Linking and
Embedding) system which a Windows ``power'' user will
recall enables
[[Page 28626]]
several applications to collaborate on a single ``compound
document.'' For example, OLE provides the ``glue''
that allows data to be copied from a WORD document and pasted into a
PowerPoint document. The PowerPoint document can then be inserted
into an Excel document and later opened as a PowerPoint document
from within the Excel document. ActiveX is the next step in the
development of this seamless interaction amongst applications.
However, where ``Distributed OLE'' only lets the user
share data, links and control over a local or wide-are network,
ActiveX has taken the technological ``leap'' into
Cyberspace by enabling the user to share data, application links and
control between a Web page on the Internet and the user's Internet
Explorer browser running on his PC. Java has taken the same leap but
with much less risk to the user.
ActiveX controls automatically download and install themselves,
and they persist (remain available) on a user's system. This feature
provides two advantages over other programs: the user doesn't have
to download and install software manually, and she only has to
download the control once. This is good news to those who don't like
waiting for controls to download every time they visit a certain
site. However, these controls can be downloaded without user
awareness or consent which means the user doesn't know what she is
downloading.
(2) JAVA
Java applets can be thought of in the same way but with some
important differences. Java applets run either inside the Java
Virtual Machine (JVM), a software application that is built into
newer browsers, or they can be run separately using the Java
Development Kit (JDK). The JDK is a sort of software interpreter
that converts Java code into code that is recognizable by the
particular platform on which it is running. JDKs are now available
for virtually all software and hardware platforms in existence.
However, because JDK is another layer of software between Java and
the actual operating system, Java tends to run more slowly.
``The major fear is that Java is not going to have the
performance it promises, and its going to fade away like a bad TV
show.'' Built into both the JVM and the JDK is a set of
security controls colloquially called the ``sandbox.''
Java's security model automatically prevents any code from accessing
portions of the operating system or the PC hardware that is outside
the parameters of the ``sandbox.'' In other words if a
Java applet wants to ``play'' on your PC it has to keep
its toys inside the sandbox. In contrast, ActiveX controls are not
restricted, which means they have direct access to the PC hardware,
software and operating system. As a result, ActiveX controls run
faster and do more, but at a substantial price in security. Also,
because ActiveX controls are distributed in native binary code,
separate controls have to be written for each operating system. Java
applets, on the other hand are distributed in a one-size-fits-all or
``write once, run anywhere'' fashion meaning that
developers only have to produce one version to run on any platform.
(3) Plug-ins
A third means of ``activating'' a Web site is through
the use of Netscape ``plugins.'' Both Netscape and
Internet Explorer browsers are packaged from the factory with a
built-in set of ``standard'' features such as graphics
viewers, which a Web site developer can then take advantage by
including graphics in his Web site. However, in order for a Netscape
browser to take advantage of any non-standard features which the Web
site developer has programmed into his Web site, the
``plugin'' version of the entire application that is used
to run it must first be downloaded to the user's PC from the
developer's Web site and then executed. This is because the
application is not embedded with the program, as in the case of
ActiveX.
For example, assume that both an ActiveX control and a non-
ActiveX program using plugin technology are created to enable users
to download and view a short animation sequence from a commercial
Web site. The ActiveX developer will include both the animation
sequence and the ``viewer'' program in the same control.
However, the developer using plugin technology must create a built-
in hyperlink in the code to the viewer developer's Web site. When
the user clicks on the link on the Web site to view the animation
sequence, the code will automatically notify the user that she must
go to the vendor's Web site and manually download the entire
``viewer'' software application before she can see the
animation. ActiveX components are inherently much smaller because
they contain only a limited subset of the entire application needed
to perform the function at hand, and therefore can be downloaded
more quickly. Once the ActiveX component is resident on the user's
PC it can be reused, on-demand precluding future downloads.
According to Microsoft, the excessive amount of time needed by a
user to download the actual application ``plugin'' file
(.exe) poses a significant deterrent to the use of Netscape's
browsers. However, as described in an article in the May 27, 1997
issue of Fortune magazine, Netscape's new Communicator browsers will
also automatically install ``plugins.''
ACTIVEX's SECURITY DEFECTS ARE ``GENETICALLY
INHERITED''
Because ActiveX is the product of many years of ongoing research
and development at Microsoft laboratories it represents the latest
in a long line of remarkable software technologies. However its
predecessors, OLE and COM, have burdened ActiveX with their
``genetic blueprint,'' legacy code written for earlier
generations of software and hardware platforms. In other words this
latest progeny is constrained by its ``gene pool''
consisting of thousands of lines of code which have accumulated over
the course of years of development and evolution and over which
ActiveX is unable to break free. The most significant constraint
imposed on ActiveX by this genetic blueprint is a deficient security
model. According to Microsoft:
We are doing everything possible to create the technical
safeguards that will make software safe. However, in order to remove
trust from the equation, we would have to rip away significant
amounts of functionality [read: code that could actually be
rewritten to more closely fit the needs of the modern Internet
environment] that users rely on today. Since the purpose of our
industry is to provide more value and power to users, rather than
limiting functionality, Microsoft and most other major software
manufacturers are advocating a trust-based security model. [read: we
could rewrite it if we wanted to but because it doesn't suit our
interests we won't]
This ``genetic'' deficiency allows ActiveX controls to
interact without constraint with both the operating system and the
PC hardware. In a sense, it is as if ActiveX was born without an
auto-immune system, making it incapable of combating viruses or
malicious programming written by evil programmers that might invade
the control and use it to enter and harm an innocent, unsuspecting
host.
ActiveX's predecessors did not have to be concerned with such an
auto-immune system because they were virtually guaranteed of living
out their lives in a ``sterile'' environment. In other
words, prior to the advent of the Internet the operating environment
in which PC software was executed was always under the complete and
exclusive control of the PC user. Each user was able to decide
whether they wanted to load a particular program on to their PC, and
once loaded whether and when to execute it. This environment
remained ``sterile'' regardless of whether or not the PC
was a standalone or networked because no external source, including
a network operating system could place something onto the users PC
without his or his network administrator's permission.
Today, however, through the wonders of downloadable and
executable software technologies, a program can automatically
download to a user's PC from a Web site or a network server and
execute without the user's awareness or consent. Thus, the operating
environment in which Microsoft's next generation software tool is
living is completely different than the environment of its
forefathers. Yet Microsoft has chosen not to take this congenital
auto-immune deficiency seriously and has failed to reengineer
ActiveX's ``DNA'' to create a reasonable security model
thus leaving users vulnerable to exposure to the dangerous code.
Such an unprotected and infected control acts like a cyber
``Typhoid Mary'' as it infects everyone it meets with the
virus of harmful code. By way of explanation, suppose Mr. And Mrs.
Jones owned and lived in a house during the same time the Microsoft
software engineers were developing the ancestors of ActiveX. Mr.
Jones worked diligently on his house, making improvements and
refinements so it would be more comfortable for he and his wife. Now
suppose Mr. And Mrs. Jones decide they want to start a family and
Mr. Jones asks a contractor for a cost estimate to build a second-
story bedroom. The contractor tells the Jones'' that because
their house was built using an ``A frame'' design a second
story cannot be added. Thus, the Jones'' are constrained from
meeting their needs for another bedroom by the limitations of their
house's original design, which did not take into consideration the
future need for a second story. Similarly, ActiveX is
[[Page 28627]]
constrained from incorporating a security model by the limitations
imposed on it by the software designs of its predecessors.
However, if Bill Gates were the owner of this ``A
frame'' and he wanted to add a second story because he and his
wife wanted to start a family, he could easily afford to tear down
the existing structure and build whatever design fits his current
needs. Similarly, Mr. Gates and Microsoft have the resources to re-
write ActiveX or develop a replacement. Indeed, one can only
speculate why he has chosen not to develop an Internet software
product that fits the current needs of his customers, given that the
environment in which his software executes (the Internet) has
changed, and is now ``open'' and ``insecure.''
Without providing an answer to this rhetorical question, Jesse Berst
also observes in PC Week, ``ActiveX is.. the key to its future.
Microsoft will be damned before it acknowledges that ActiveX has a
security problem.'' Berst goes on to explain that
``[r]ather than help users understand and minimize the risks
[associated with ActiveX], Microsoft contented itself with pointing
out that similar problems were theoretically possible with Netscape
products.'' Quoting PC Week Editorial Director and former
director of PC Week Labs, David Berlind, Berst writes,
``Frankly, I want to puke.'' Microsoft will not give up
ActiveX because it is the key to ``Increas(ing) the popularity
of its browser.'' Without ActiveX there would be no need for
Authenticode, and without Authenticode and ActiveX there would be no
way of significantly distinguishing IE from a Netscape browser,
except that it is given away at no immediate up-front cost.
THE AUTHENTICODE SOLUTION--;Myth and Reality
(1) The Myth
In his article Jesse Berst explains that Authenticode is
``... like requiring people who send mail bombs to put their
names on the package.'' Were that approach effective, even the
alleged ``Unabomber'' would have been apprehended many
years earlier, because according to news reports many of his mail
bombs had postmarks from the small town where he lived. Obviously
this approach is ineffective because the names would be blown up,
just as any evidence of an Authenticode digital certificate could
also be destroyed by a malicious ActiveX program after causing other
damage to a user's PC. And yet on August 7, 1996 a Verisign Press
Release quoted Verisign president and CEO Stratton Sclavos as
stating, ``With this service, users can feel confident that the
quotes Sclavos as stating that, ``Under the Authenticode
program, developers must go through an application and verification
process to ensure that certificates are issued only to the
appropriate party. This eliminates any worry that developers could
be falsely represented by an impostor.''
Microsoft's Authenticode security model requires that all
software developers (commercial and independent) must register their
ActiveX components with a Certification Authority such as Verisign,
before Internet Explorer browsers will allow them to be downloaded
to a user's PC from a Web site, if the browser's security setting is
on ``High.'' The software developer must
``legally'' affirm that to the best of his knowledge the
control is incapable of causing damage to a user's PC. Verisign
issues the developer either an electronic ``individual Software
Publisher's Certificate'' or an electronic ``Commercial
Software Publisher's Certificate'' depending on whether they
are registering as an individual or corporate software developer.
Different identity verification criteria are used to establish the
developer's identity depending on the type of certificate requested.
One way Microsoft successfully propagates the Authenticode myth
is through contradictory and vague announcements and bulletins. The
following excerpts demonstrate the range of conflicting statements
about Authenticode that come from both Verisign and Microsoft
management.
The following excerpt from Verisign's Web site explains the
service it provides to its customers:
When customers buy software in a store, the source of that
software is obvious.
Customers can tell who published the software, and they can see
whether the package has been opened. These factors, along with
others, enable customers to make judgments about what software to
purchase and use, and how much to ``trust'' those products
and the companies and individuals who publish them. When customers
download software from the Internet, all they see (at most) is a
message warning them about the dangers of using the software. The
Internet lacks the subtle information provided by packaging, shelf
space, shrink wrap, and the like. Without an assurance of the
software's integrity, and without knowing who published the
software, it's difficult for customers to know how much to trust
software. It's difficult to make the choice of downloading the
software from the Internet.
Verisign Digital IDs in conjunction with Authenticode (software
validation) technology provide customers with the information and
assurance they need when downloading software from the Internet.
Authenticode communicates to customers the real identity of the
publisher and assures them that the product has not been altered or
damaged. (emphasis added) Contrast this language with the statement
of Cornelius Willis, Microsoft's group product manager-Internet
developer marketing, ``Authenticode does not guarantee that
users will never download malicious code to their PC .... We don't
claim ActiveX is a (a) The Problems of Establishing Identity in
Cyberspace The advantage of knowing the publisher's true identity is
that if provides the relying party with recourse in the event the
software turns out to be ``harmful.'' In the physical
world this is generally not a problem, as a purchaser can usually
assume that the store's physical location will not change. The
benefit of having a physical location to return to serves several
purposes. First, the store owner's physical assets can be attached;
second, the unsatisfied consumer can create a scene inside the
store, or in the community, creating bad publicity for the owner and
an incentive for prompt resolution; third, the physical location
will be an indicator of the laws that will apply in the particular
jurisdiction. Transacting in a physical location has advantages for
the seller as well. The merchant can demand physical identification
which can usually be verified through on-line databases combined
with visual scrutiny of a photo ID, the purchaser's demeanor and
dress and other non-verbal cues which can be stored by a video
camera for future retrieval and proof of the transaction should the
purchaser later attempt to repudiate. Telephone-based sales
represents a hybrid marketplace with portions of the physical world
and Cyberspace. From the consumer's standpoint, if she dialed an 800
or 888 number she has little assurance of who she was actually
calling, where they are located what laws apply, and whether the
``order taker'' works for the company she is purchasing
the product from, or an outsourced tele-marketing firm. The risks to
the consumer are only that she may be giving her credit card number
to someone other than a legitimate merchant who will use it
fraudulently. However, her exposure is minimal because most credit
card companies limit the consumer's liability to $50, assuming
timely, good faith reporting efforts.
The merchant suffers greater risks through telephone-based
sales, although the tradeoff is less overhead than a storefront. If
the consumer dials an 800 or 888 number, `caller id''
will notify the merchant of the phone number used by the purchaser
to make the call which can be used in connection with reverse phone
directories and address cross-checking databases to provide
additional identity verification. However, the merchant is unable to
demand visual identification, and is legally protected only by on-
line credit card clearing services, which can only benefit the
merchant after the credit card theft has been discovered and
reported. The majority of credit card thieves use the card as
quickly as possible after the theft to take advantage of delays in
reporting, Because of the limitations on identify verification, and
the delays in theft reporting, the likelihood of fraudulent
telephone-based transactions increases significantly.
Internet-based sales represent the greatest opportunity for
fraud to both parties. The merchant is unable to establish the
caller's telephone number and related identifying information.
Telephone records cannot provide evidence that the phone call took
place because access will be through an independent Internet Service
Provider dial-up service. Although Web servers can gather user
information through cookies this is not always reliable. The
opportunity for using stolen credit cards is at least the same as
with telephone sales. (See ``The Essential Role of Trusted
Third Parties in Electronic Commerce,'' Michael Froomkin)
Also, it is possible for a Web site to be ``spoofed''
or misrepresented by a hacker, causing the unsuspecting user to
enter their credit card and other relevant identifying information
on-line. Although a technical discussion of ``Web
spoofing'' is beyond the scope of this article, a
``spoofed'' Web site can look exactly like the original to
anyone but the most cautious of users. The unsuspecting consumer
personal data would be turned over to the thief who would quickly
use it.
[[Page 28628]]
Because of these and similar identity authentication problems
consumers and merchants cannot know with certainty, even with
Digital Ids, the actual identity of someone on the Internet. Greater
security measures are needed before consumers can reasonably trust
the Internet as a medium for safe commerce.
AUTHENTICODE--;THE REALITY WHAT IS THE ROLE OF THE
CERTIFICATION AUTHORITY?
The purpose of a Certificate Authority is to bind a public key
to the common name of the certificate, and thus assure third parties
that some measure of care was taken to ensure that this binding is
valid. A measure of a Certificate Authority is their ``Policy
Statement'' which states what measures they take for each class
of certificate they offer to ensure that this binding of identity
with public key is valid.
2. WHAT IS THE ROLE OF A DIGITAL ID (PUBLIC KEY CERTIFICATE)?
Although the actual digital signature process will not be
covered in detail, the following brief explanation will highlight
some of the important points. Traditional encryption for
confidentiality uses only a single, ``secret'' key and is
called symmetric cryptography. Digital signatures use a
mathematically related key pair, (a ``public'' key and a
``private'' key) and employ a technology called
asymmetrical cryptography. A mathematical formula or algorithm is
used in conjunction with a ``random-number'' generator to
create the public and private keys. The design of the encryption
algorithm relates the two keys in such a way as to allow either key
to decrypt a message encrypted by the other. However, it is
``computationally infeasible'' to determine the value of
the private key based on the public key and the digitally signed
message. Additional information on digital signature is available at
www.rsa.com and www.abanet.org/scitech/ec/isc.
The utility of a digital signature as an authenticating tool is
limited by the ability of the recipient to ensure the authenticity
of the key used to verify the signature. The following explanation
will demonstrate this truth. The traditional labels used to
represent the different parties in this sort of discussion are Bob,
the sender, and Alice, the recipient. For purposes of this
discussion a third party, Mallet, will play the role of evil hacker.
If Bob digitally signs a message using his private key and sends it
to Alice the only way she has to verify that Bob really sent it is
if she knows Bob's public key. However, Alice must be able to
retrieve Bob's public key from a source other than Bob's message
because if Mallet is forging Bob's message he will send his own
public key, claiming that it actually belongs to Bob.
Mallet has the private key corresponding to the public key sent
to Alice, her attempt to authenticate the message will result in a
positive confirmation even though it was not really from Bob.
However, if Alice has access to Bob's real public key from an
outside trusted third-party source, and uses it to verify the
message signed with Mallet's private key, the verification will
fail, revealing the forgery. In short, the Certification Authority
(CA) fills the role of an outside source and Bob's public key is
transmitted from the CA to Alice in the form of a Digital ID or
public-key certificate. In order to ensure the authenticity of the
certificate, Bob's Digital ID will be digitally signed by the CA. In
order for Alice to establish a ``trusted'' relationship
with the CA she must have access to the CA's public-key from another
trusted third-party:
In practice, most if not all CAs have chosen to provide their
public-key certificates to Netscape or other browser developers, who
embed them into their browsers for easy access. In the event Bob has
registered his public-key with a new, or unregistered CA, the
browser software will notify the user and give him the opportunity
to accept the CAs public-key `on the spot.'' This
presents the user with a predicament, and also presents CAs with a
strong incentive to pre-register with the Netscape, IE and other
browsers.
The fundamental problem comes down to how good a job the CA did
in authenticating the subscriber identity. The CA's response
will be that it made a good-faith effort consistent with the terms
of the agreement or CPS to which both parties are bound. However,
close scrutiny of the agreement will reveal that (1) very little
detail is provided about the authentication methods used or the
reliability of its sources of information, (2) the level of effort
invested in the identity verification process is a function of the
Level or Class of Digital Id. In other words, a subscriber's Digital
Id that costs $20 will not receive as much identify authentication
effort as will the subscriber to a $400 Digital Id. The following
examples are cited by Verisign as representative of the sorts of
transactions that could reasonably be performed using the various
Levels of Certificate:
These examples, as well as any attempt to standardize on a
generalized template of reasonable reliance is of marginal utility.
It quickly breaks down when faced with simple counter-examples such
as the following. According to the Verisign Digital Id Certificate
model, a Class 1 Digital Id is acceptable for use in confirming the
identify of e-mail correspondents and transactions of very low
value. Assuming an organization chose to use the Class 1 Id for
transactions that are limited to a value of $.01, but the number of
these transactions exceeds one million per day. Under these facts
the company
3. HOW DOES THE INTERNET EXPLORER BROWSER PROCESS THE DIGITAL
ID?
The following step-by-step explanation of what happens when an
Internet Explorer browser visits a Web site containing an ActiveX
component will provide an overview of the basic steps involved in
the public-key digital signature process, as applied in Microsoft's
Authenticode model. Additional introductory material on the subject
is widely available on the WWW, including the Verisign, RSA, and
American Bar Association, Information Security Committee sites.
When the IE browser arrives at a Web site that contains an
ActiveX control the browser will first check to see if the component
has been digitally signed.
If not, the browser will display a warning message to the user,
stating that the component is of unknown origin and may present a
security risk, and then allow the user to make the choice whether to
allow the component to be downloaded to their PC or not.
If the component has been digitally signed the browser will
determine which Certification Authority (CA) authenticated the
certificate, and if it doesn't already have a stored copy, it will
automatically obtain the software publisher's public key from that
CA via the Internet.
The browser will then use the public key to decrypt the
``message digest'' portion of the certificate. The browser
will then run the same digital signature ``hashing
algorithm'' on the component again and match the resulting
message digest against the one in the certificate.
If the component has not been modified, either intentionally or
inadvertently since it was signed, the new digest should match the
old one. If they don't match, either the code was modified or the
public and private keys aren't a matched pair. Either way, the
component becomes suspect and the browser notifies the user that it
should be discarded.
4. PROCESS WHEREBY SUBSCRIBER CONTRACTS WITH A CERTIFICATION
AUTHORITY FOR A DIGITAL ID.
The subscriber must provide the Certification Authority with
enough identifying information to satisfy the CA's authentication
requirements, depending on the Certificate Class. For example, the
following information must be provided to Verisign during the
enrollment process, either through their on-line enrollment forms or
through regular mail.
Individual Software Publishers (Class 2):
. Individual Publisher's name, address, and e-mail address
. Date of birth
. Social Security Number
. Previous address (if you have moved in the past 2 years)
. Credit card information for billing
Commercial Software Publishers (Class 3):
. Company name, address, e-mail, phone, and fax
. information for a technical contact and an
. organizational contact.
. company's DUNS number, if any.
. Billing information (credit card, P.O. or check), and billing
contact information, if any. As of June 1997, pricing for Software
Publisher Digital IDs are as follows. Digital Ids for different
purposes are also available, at different prices.
Class 2 Digital ID for Validating Software: $20 annually [for
Individual Software Publishers)
Class 3 Digital ID for Validating Software: $400 annually [for
Commercial Software Publishers, i.e. companies]
The following excerpt from the Verisign Web site explains their
procedure for verifying a company or individual identity.
Based on Microsoft code signing program criteria, VeriSign will
attempt to verify that your company meets a minimum financial
stability level using ratings from Dun & Bradstreet Financial
Services, or attempt to verify your personal information through a
credit reporting agency such as Equifax for individual software
publishers. Your
[[Page 28629]]
certificate will indicate if you have met this level. Some software,
such as the Microsoft Internet Explorer 3.0, offers end users an
option to bypass making an explicit choice to trust code from each
new software publisher. If an end user checks an option to trust all
software signed by vendors who have met the financial criteria, code
signed by these vendors will be run without any user intervention.
5. THE UTILITY OF AN AUTHENTICODE DIGIIAL ID
All properly authenticated digital signatures can demonstrate to
a high degree of certainty the following three attributes:
Integrity--;The component has not be modified since it was
signed, either intentionally or inadvertently.
Authentication--;The purported identity of the party who
registered as the component's author, based on the certificate's
level of assurance and Verisign's corresponding identity
verification criteria.
Non-repudiation--;The component's registered author cannot
later repudiate his identify as the component's registered author
should it cause damage to a user's PC or other computer-related
product (assuming the author registered the component using his own
identity).
However, because Authenticode will only work on Microsoft's
Internet Explorer, users of any other browser will be unable to gain
whatever benefit might be provided by this information. For example,
if the ActiveX plugin from NCompass Labs, Inc. is used with a
Netscape browser, any ActiveX component encountered on a Web site by
the browser will be downloaded without Authenticode's intervention.
Netscape's generic software download alarm will probably display a
warning, giving the user an option to proceed or quit, but the
existence of a Digital ID will not be a factor in the user's
decision.
Digital Certificates can only attempt to vouch for the
authenticity of someone's identity, not for their good intentions.
Neither the digital signature technology nor the Certification
Authority (CA) make any warranties as to the safety of the ActiveX
component. The Authenticode system merely relies on the assurances
made by the component's developer to the CA when they initially
apply for a Digital ID subscription. In the patois of logic this
appears to be circular reasoning. The party whose trustworthiness is
in question is providing the means for assuring the user of his
trustworthiness. Furthermore, CA's have neither the mandate,
resources, nor the incentive to actively monitor the behavior of
millions of its certificate holders. Although they do have a duty to
suspend or revoke a subscriber's Digital ID based on reported
breaches of a specific set of criteria, they are not obligated to
perform an independent monitoring function.
The possibility of undiscovered fraud is significant due to the
ubiquity of stolen credit cards and access to personal information
on the Internet combined with the limited authentication of the
user's identifying information. Authenticode is supposed to provide
the means for a user or corporation to ``trust'' the
ActiveX components they download from the Internet by ensuring
``accountability.''
The approach here is accountability--;to cease having
publication of software on the Internet be an anonymous activity. If
an organization or individual wants to use the public Internet to
publish software, they should be willing to take public
responsibility for the code they author and publish. If the code
proves to have errors or even malicious faults, these organizations
and individuals should be willing to answer for them just as they
would take credit for good code. This approach is founded on the
idea that accountability is an effective deterrent to the
distribution of harmful code. (emphasis added)
The same argument can be made that license plates should act as
deterrents to either prevent or curtail the use of cars in the
commission of crimes. Because the license plate establishes the
owner's identity (with possibly more certainty than a software
publisher's certificate) it makes him accountable for his acts using
the car and therefore cars will not be used in the commission of
crimes. Still, stolen cars are used every day, to smuggle drugs,
transport criminals to and from crime scenes, and perform other
illegal acts.
Obviously accountability is not an effective deterrent to the
use of cars to commit crimes. Likewise, accountability is not an
effective deterrent against the malicious use of ActiveX, because
stolen credit cards are readily available. What is the solution to
this problem? There is probably no single solution short of
eliminating ActiveX entirely. However, a number of individual
solutions are appearing which, when used in aggregate have the
potential to reduce the threat of injury to an acceptable level.
Several of these potential solutions are discussed below.
6. DIGITAL AUTHENTICATION FOR WEB SERVERS.
Verisign, Xcert, GTE and other companies are also in the
business of selling Digital Ids for Servers. According to Verisign,
their product would enable the server owner to establish his
authenticity to Web browsers visiting his site. in the marketing
literature describing Digital Ids for Servers on its Web site,
Verisign explains:
In the virtual world of the Internet, however, the web-site of
an unscrupulous con-artist might look just as professional as that
of a legitimate business. The low cost-of-entry and the ease with
which graphics and text can be copied make it possible for almost
anyone to create sites that appear to represent established
businesses or organizations. To protect your organization and your
customers from such impostors, you need a way to establish you
site's authenticity.
Interestingly, in one context Microsoft and Verisign guarantee
that users will be able to garner enough information by visiting the
developer's Web site to make an informed judgment of both the
developer's and his program's trustworthiness. However, in this
context Verisign is saying that because almost anyone can create Web
sites that appear to represent established businesses or
organization that Web site owners should use Digital Id for Servers
to establish their site's authenticity to visitors. Later in this
same Microsoft document mentioned above, under ``Qualifying for
the Individual Software Publishing Certificate'' Microsoft
rhetorically asks the question, ``What is the value of the
Individual Software Publishing Certificate?'' The document
responds:
it would seem that users aren't going to trust individuals they
don't know, and businesses aren't going to let code signed by
students at a local university into their corporate domain. While
this may indeed be the case, the value of this type of certificate
is in the information it provides to the user so that he/she can
make the decision on how to run the code. Knowing who authored the
code, and that the bits have not been altered from the time the code
was signed to the present is indeed comforting information.
Additionally, the implementation provides links from the user
interface (UI) to Web pages so the user can obtain detailed
information about the signed code, the author, and the certificate
authority. After learning about this code and the author, the user
may decide to run the code, and/or all future code signed by this
certified individual. (emphasis added).
Leaving aside the remarkable statement that corporations would
inevitably not allow software developed by local university students
into their domain, Authenticode fails to provide an objective means
for users to evaluate this supposedly detailed information about the
signed code and its author that is being made available to them. One
is left with the gnawing suspicion that Microsoft intends for there
to be a direct relationship between a software developer's
advertising budget, the purported ``trustworthiness'' of
his software, and the frequency with which users will download it
over the Internet. In other words the more a developer can achieve
brand name and product name recognition amongst Internet users the
more frequently his products will be downloaded. Not surprisingly,
Microsoft has one of the biggest advertising budgets in the world.
7. PULLING IT ALL TOGETHER WITH SSL. ... ALMOST.
We have seen that browsers can authenticate software publisher
Digital Ids and that Web servers can authenticate client browser
Digital ??ds, assuming the subscriber's identity is established with
reasonable certainty. However, this authentication is only performed
once, at the beginning of the transaction. After the initial
``handshaking'' takes place and the browser software is
convinced that the other party is who she claims to be, no further
checking is performed. This would leave either or both parties
vulnerable to eavesdropping, replay and spoofing attacks during the
remainder of the communication, if not for SSL.
Secure Sockets Layer (SSL) is an industry standard
communications protocol that attempts to remedy these problems by
creating unique signature keys that are exchanged throughout the
entire communication ``session.'' In other words, after
the client is certain the server is not spoofing its identity, the
server and client exchange ``session-keys'' that will be
used to
[[Page 28630]]
sign the data during the data exchange. With SSL 2.0, the same
signature keys must also be used for encryption, if confidentiality
is needed, however with SSL 3.0 signatures can use different keys
than the encryption engine. SSL's main function is to protect users
from attack by eavesdroppers or message interceptors. Both the
client and the server provide part of the random data used to
generate the keys for each connection and that same random data is
also used to generate the master secret key associated with that
session.
(a) Caching data during secure connections. One important
drawback to this SSL scheme is the fact that the Netscape browser
can store in local cache on the user's hard disk any data that has
been sent by it during the secure connection. Navigator 3.0 has an
option to allow caching of data fetched over SSL connections,
however the default setting is to not cache data. in Navigator 2.0,
documents fetched using SSL were cached in the same way as non-SSL
documents. However, the command ``Pragma: no-cache'' in
the HTTP header can be used to disable caching for a particular
page. Interestingly, in Navigator 1.0 documents fetched with SSL
were not cached.
Most importantly the cached data is not encrypted and is
available to ``prying eyes'' in cleartext form. As long as
the cache remains on the user's hard disk, any information such as
credit card numbers or private keys that were sent over the secured
SSL connection are ripe for the picking by anyone either physically
accessing the PC or using an intermediate agent such as an ActiveX
control.
(b) Handling previously unknown certification authorities while
Web browsing Whenever a previously unknown CA is encountered by a
browser their Root keys for Certificate Authority certificates are
loaded through an automatic process using an SSL connection. This
means that conceivably a ``rogue'' CA can load its
certificate into browsers and begin authenticating harmful ActiveX
controls without any restrictions. Netscape states that presumably
in the future loading a root certificate through a local process,
such as from disk, LDAP, or other out-of-band mechanism, will be a
supported addition or in place of the present method of connecting
to a trusted server and downloading the certificate chain. This
presumption is an acknowledgment of the severe security risks
associated with the current approach, and also an acknowledgment of
the technological complexity of the more secure approach.
(c) Vendor Incompatibles The successful application of these SSL
keying standards is also completely dependent on the capabilities of
both the client browser and the Web server. However because
different software vendor's products support different
implementations and versions of SSL, fundamental barriers still
exist to prevent a universally ``secure'' Web browsing
experience. Other obstacles to trustworthy applications include the
inability for Web servers to automatically check every certificate
for currency, either by checking its expiration date, or checking an
on-line ``certificate revocation list'' (CRL) to determine
whether the certificate has been suspended or revoked for fraudulent
or criminal abuse. As this technology evolves, these barriers will
be eliminated, bringing us closer to the goal of authenticated, safe
communication on the Internet. The problem in the near term however,
is that most users are not made aware of the risks associated with
these technological shortfalls.
8. CERTIFICATION REVOCATION LISTS (CRLs)
A certificate revocation list (CRL) is a repository of
information that presents the current state of any public-key
certificate to anyone who accesses it. The CRL can be implemented in
different ways but the approach Verisign uses for the Authenticode
Digital Ids is to only include those certificates that have a
current unrevoked status. In other words, it is possible for a
certificate to either be in an active, suspended or revoked state.
If the certificate has been revoked it should not be relied on under
any circumstances. However, if the certificate is temporarily
suspended it is possible that removal of that status is imminent and
the potential relying party should contact the Certification
Authority directly for further details. Regardless of the unique
circumstances it is essential the potential relying party have
access to the certificate status or he will be making an uninformed
decision regarding reliance. Implementation of the CRL is another
contentious subject that again trades off between the development
costs to provide customer ease-of-use and informed decision making.
Unless the potential relying party knows how to access and use the
CRL they are unable to benefit from its contents. However,
instructions on its location and use are not conspicuously displayed
when the potential relying party is presented with the publisher's
Authenticode-based Digital Id. This is generally because this option
has only recently been made available to HTML programmers and so a
significant retrofitting of all certificates is needed to implement
it. When implemented properly a button will appear on the Document
Info page for servers whose certificate supports the appropriate
extensions or commands. When the button is pressed the CA will be
queried via HTTP GET, and will display a dialog to indicate to the
user if the certificate is good or not. This button does not appear
in the Authenticode Digital Id but instead must be
``manually'' selected from the ``View'' pull-
down menu on the browser. If a user attempts to use a client
certificate that has expired, a dialog will be displayed warning
them that their certificate has expired, and if this extension
exists, a button will be on the dialog that will bring up a window
displaying the URL. There is no automatic revocation check. As
mentioned above, a button allowing manual checks is displayed on the
Document Info page. According to Netscape this feature was added
because some people needed revocation, but they did not have time to
support full CRLs. However, in a future release they will support
CRLs, and possibly other forms of revocation technology.
Client authentication as implemented by Microsoft Internet
Explorer 3.0 is interoperable with popular Web servers that support
secure sockets layer (SSL) 3.0 client authentication. Microsoft is
working to extend the complete set of technology components
necessary for webmasters to incorporate client authentication in
their Web applications. This includes extending Windows NT(r) Server
operating system support for challenge and response and the SSL 2.0
protocol used by Microsoft Internet information Server to also
``include support for client authentication through the SSL 3.0
protocol.
7. RELYING PARTY AGREEMENT
The greatest potential victim of any defects in the Authenticode
model is arguably the relying party who attempts to verify the
Digital ID and make the decision to download. A detailed discussion
of the many legal uncertainties surrounding CAs and certificates is
beyond the scope of this article. Suffice it to say that a legal
outcome will in part depend on the jurisdiction hearing the claim
and the ``reasonableness'' of the reliance. Verisign has
attempted to address many of these issues in its ``Relying
Party Agreement'' which, according to its language, is binding
as soon as the third party ``relies,'' either
intentionally or otherwise. This reliance is supposed to be
triggered automatically when the party inspects a Verisign
Certificate Revocation List or accepts a Verisign Digital ID. This
agreement also attempts to remove the ``choice of law'' or
jurisdiction question by specifying that all parties are bound by
California laws. However, a more fundamental question must first be
addressed. Under California's Uniform Commercial Code (UCC) statutes
however, if a certificate is considered a good rather than a
service, any disclaimer of warranties must consist of a conspicuous
writing attached to the good being sold. It is difficult to envision
how this should be accomplished, yet Verisign's incorporation by
reference may not meet the California standard for conspicuousness.
Furthermore, the relying party is expected to read this agreement
before ``us(ing) or rely(ing) upon any information or services
provided by VeriSign's Repository or website '' or
``search(ing) for a certificate, or ( ) verify(ing) a digital
signature'' in Verisign's repository and that by doing the
verification the user is agreeing to the terms of the agreement,
including acknowledging that she has ``access to sufficient
information to ensure that [she] can make an informed decision as to
the extent to which [she] will chose [sic] to rely on the
information in a certificate.''
The relying party is supposedly bound by the agreement which
affirms that she has enough information to decide to what extent she
will rely on the information in a certificate, and also that she is
solely responsible for deciding whether or not to rely on the
information in the certificate. In other words Verisign is making no
statements about what the information in the certificate represents
and instead shifts the burden to the relying party to make the
download decision without providing them with the necessary tools
and resources.
There are at least two flaws with this approach: (1) It
presupposes the relying party can agree that sufficient information
will be
[[Page 28631]]
on the certificate to make the determination as to whether she will
rely on it or not, without having seen the publisher's Web site, and
(2) The relying party must be able to receive authentication of a
subscriber's public-key from a trusted-third-party (TTP) or the
entire model is useless.
8. FACTUAL EXAMPLE OF FLAWS IN THE AUTHENTICODE SOLUTION
(a) Unforeseen Interactions
Consider two ActiveX controls. One provides a control similar to
the Win95 ``Start'' button with all the commands on the
user's computer presented in a list to choose from. Suppose it keeps
these command names in a preferences file such as
C:-bswindows-bsco
mmands. The file may contain a list such as: Word, Excel, format c:,
IE3, etc.
Consider a second ActiveX control that performs certain
``housekeeping'' functions on the PC at regular intervals.
It automatically wakes up at a specified time and executes a list of
commands such as backup, defrag, etc. Suppose it keeps its list of
commands in, for instance
C:-bswindows-bsco
mmands. At the next scheduled interval the second control dutifully
finds the file written by the first one and fires up Word, Excel,
and then formats the C drive. Commands after this one are of
diminishing consequence. The user's hard disk is wiped clean and so
are the ``fingerprints'' for Authenticode. Even if they
are somehow located, who should the user point the law enforcement
people towards? Both controls did exactly what they were designed to
do, exactly what they advertised to do. Who is the user going to
sue? Obviously neither ``misbehaved.'' What happened was
an unforeseen interaction between the two, and was only possible
because ActiveX is given unrestricted access to those system-level
tasks. With only a bit of planning it would be possible to come up
with a cooperating gang of ActiveX controls to do deliberate theft
via collusion where each program is only doing what it's
``supposed'' to, yet the total of their activity is much
greater than the sum of the parts. Current methods of tracking
events through logfiles are unable to accurately reflect the non-
linearity that is clearly at work here in the interaction of the
components, the only way to avoid this would be to strictly de-
couple the controls, by not allowing any to share information with
the other, such as giving each its own private file-space to write
in. Although this is the approach used by Java's sandbox, alas it is
not possible in the ``security-free'' world of ActiveX.
(b) Proving the Origin of the Malicious Code Can be Almost
Impossible
In the event the malicious code does not either reformat the
user's hard disk or destroy its digital certificate outright there
is still a great deal of uncertainty as to how the particular
malicious code at fault can be identified as the cause of any
particular harm. Certainly it would be easy if the damage occurred
immediately after the ActiveX control was downloaded. But if it does
something indirect; or waits until executed the 100th time; or
modifies some other program so that it later does something nasty;
then tracking down the source of the original corruption will be
extremely difficult.
Assume for example that a component is signed by the real
author, who was certified by a competent CA to be a reputable
software developer. The user reviews the certificate at install
time, and accepts it on the basis of the reputation of the
developer. The user then forgets about the code for some weeks to
come. Later on, he or she visits a page of a hacker, or a page of a
web site that has been broken into by a hacker, and the IE browser
invokes the code with arguments supplied by the hacker. The code may
appear to do what it's supposed to, or appear to do nothing at all
while it's erasing the web browser's history file. The user may not
even be aware that code is executing. The user goes on to about 50
other Web pages that night, and shuts off their machine with no
evidence of a problem. When they reboot they may have a huge
problem, depending on what the code was reprogrammed to do. The
Authenticode scenario suggests that the user can now call their
lawyer to sue someone, but who do they sue? The hacker that the FBI
can't track? The well intentioned but pressured software developer
who wrote the harmless control that was manipulated by the hacker to
cause the damage? The certification authorities like Verisign that
have forty page disclaimers of liability? And even if someone could
be sued, is this an acceptable remedy for being without their
computer system?
(c) No Consideration is Given to the Author's Competence as a
Programmer
In cases where a program such as ActiveX has the ability to act
on untrusted data, it isn't valid to make a judgment of its security
simply on the basis of trusting that the writer of the program is
not malicious. Consideration of how competent they are at writing
``safe programs'' is also important. Users of ActiveX are
being encouraged to accept or reject controls based on whether they
think the signer is trustworthy or not. No consideration is given to
the stronger, and more relevant criterion of the author's competence
as a programmer.
Because third parties can provide potentially hostile input to
Active X controls--;at least for those classified as ``safe
for initialization``--;the ``appropriate
diligence'' for such a control is much greater than that
required for an ordinary application. Even though a well intentioned
author creates a ``safe'' program, unless it has been
written using the appropriate security safeguards it can be made to
cause damage through the actions of another ActiveX control.
(d) Microsoft Justifies the Inherent Security Risks of ActiveX
by Arguing that Users Want and Demand a Rich Computing Experience.
It has been argued that the Java sandbox approach is too
restrictive, and that users want and demand a rich computing
experience. This may be true, but these same users would prefer to
use the name of their favorite movie star or basketball player as a
password. It is up to the computer professionals to maintain a
balance between adequate security protection and ease of use. Users
should be encouraged to take informed risks, but they must be given
the guidance and tools to accurately perform the risk/benefit
analysis. Authenticode deters users from taking informed risks
because it fails to provide them with the information needed to make
an informed decision while at the same time assuring them that it is
at their disposal.
(e) The Myth That Commercial Software Publishers and Others Will
Be Deterred From Writing and Distributing Malicious Software Because
of the Polential Risks of Economic Loss and Legal Liability
Historically hefty financial barriers to entry into the software
development market using traditional distribution channels have
restricted the number of market entrants. However the Internet
provides a very low entry-cost distribution mechanism that is not
without an increase in associated risks. Lowering the entry cost
increases the potential for abuse. Furthermore, automating the
process increases the chance that the abuse may go unnoticed. No
longer can it be assumed that software developers will not risk loss
of their potentially small financial investment by loading malicious
controls onto the Web that, if undetected, would serve their ends.
(f) Average User Lacks the Training and Resources Necessary to
Make Appropriate Downloading Decision Based on Information Provided
by Developer's Web Site
The average user is probably only able to recognize a handful of
big name Internet-related software development companies and even
fewer companies that develop ActiveX components. And yet users are
being asked to decide whether or not they should download a
particular company's ActiveX component based on whether they are
``known'' (which, according to Microsoft's definition
means ``trustworthy''). Assuming the developer is
``unknown'' to them, the user has no idea what information
on the developer's Web site is needed to making this critical
decision and yet Microsoft clearly states that the user ``can
make the decision on how to run the code'' based on the
information provided in the certificate,
Furthermore, the average user will probably be reluctant to
spend much time seriously evaluating the trustworthiness of a
software developer and will instead base their decision on the
site's professional appearance or some other intangible and possibly
irrelevant factor. According to Michael Sullivan-Trainor, director
of International Data Corp.'s Internet program, ``The problem
with the Web is that the sleaziest company in the world can put up a
site as slick as the most respected corporation. Shopping [and
downloading software] on the Web requires a little more
investigation.'' Because a professional appearance can easily
be created by the most criminal of software developer's it cannot be
used as a measure of the developer's trustworthiness and yet
Microsoft provides no guidelines to assist the user in making this
analysis. Nevertheless they continue to assert, as stated above,
that ``the value of this type of certificate is in the
information it provides to the user so that he/she can make the
decision on how to run the code'' and that this should be
``comforting information.''
(g) Contrary to Microsoft's Claim, Downloading Software From
``Known'' Software Vendors Does Not Necessarily Eliminate
Risk
Implicit in the Authenticode trust model is the belief that all
ActiveX components
[[Page 28632]]
created by ``known'' software developers will be harmless
and can therefore be trusted and downloaded without reservation. The
recent track records of several software developers including
Microsoft, seriously undermine this notion. According to an article
called ``Microsoft Security Flaws Run Deep,'' in the March
6, 1997 issue of CNET's NEWS.COM authors Nick Wingfield and Alex
Lash state that ``ActiveX is not the only security headache
Microsoft is suffering. There are problems with its Internet
Explorer browser.'' The article goes on to explain how earlier
that week a group of students (does not specify whether they were
students from the local university) found that by planting
``Shortcuts'' on a Web site they could trigger resident
Windows 95 and NT programs to delete and manipulate files on a
user's computer when browsing the Web site. According to the article
Microsoft developers worked around the clock to fix the security
hole.
In response to this IE ``Shortcuts'' security hole
Stephen Cobb, director of special projects at the National Computer
Security Association (NCSA) states, ``1 would say that you have
to seriously question the integrity of Internet Explorer at this
point because this was such a big hole.'' Cobb goes on to
comment that ``Microsoft's statement that they did a lot of
testing [on Internet Explorer] is worrying, because if they did a
lot of testing and didn't find this problem, their testing is very
flawed.'' In all fairness, it must be pointed out that security
holes are being found in other software developer's products as
well, however the significance of Microsoft's track record in this
particular case is that they are the ones that are making the
argument that if the software developer is ``known'' then
their ActiveX components must be trustworthy, and that the only
criteria that is important is whether or not the user recognizes the
software developer.
The same CNET article also points out that even if no one's
computer is actually damaged by a security hole that is subsequently
discovered after the user has downloaded software, individuals and
companies still have to spend time and money to install the security
patches on their systems. Stephen Cobb concludes that ``[I]t's
difficult for Microsoft to weasel its way out with the ``it
does no damage'' excuse, because [in the case of the
``Shortcuts'' bug] systems administrators are already
looking at a big cost hit,'' There is no empirical evidence to
support Microsoft's assertion that downloading software from
``known'' origins is less risky than from
``unknown'' sites. Nor does this assertion take into
consideration the possibility of a hacker placing a malicious
control on a ``known'' Web site, or the possibility of a
hacker ``spoofing'' a ``known '' Web site.
Either of these can be done without detection either by the user or
by the Authenticode system.
Joel McNamara explores this same issue in the June 1997 issue of
Infosecurity News. In an article titled, ``Security-Market
Dynamics'' he writes, ``As security professionals, we like
to think that security ranks right up there on everyone's most-
important list. But when security isn't the primary purpose of the
product, security features all too often take a back seat. ''
McNamara lists some of the security holes that have been discovered
recently in many of Microsoft's products ranging from Windows NT,
Windows 95, WORD macro viruses, to Internet Explorer, Authenticode
and ActiveX. Joel observes that ``Microsoft's testing
methodology appears to be more oriented toward discovering classic,
show-stopping bugs rather than searching for more subtle,
exploitable security holes.'' He concludes that, ``[i]f
people continue to buy products with marginal security, why spend
the extra time and money implementing high-end security ....
Unfortunately, the marketplace usually needs to yell, scream and
??reaten to walk away before it gets what it wants. So, until then,
expect to see security as little more than just another check on a
marketing features list.'' A user can be exposed to significant
security risks even when downloading software from a
``known'' developer such as Microsoft.
(h) Relevance of Authenticode ``Trust-Model'' for
users outside the United States
Software developers located outside the United States but who
wish to allow their components to be downloaded in the U.S.
According to the Verisign Web page, ``Digital Ids for
Servers: High-level Security at a Low Cost:''
If your company has a Dun & Bradstreet (DUNS) number, you
can complete your Digital ID request online. If you do not wish to
use a DUNS number, or your company is not in the US, you can
complete the enrollment form electronically and fax or mail Verisign
any of the following pieces of documentation to establish your
company's identity:
. * Articles of Incorporation
. * Partnership Papers
. * Business license
. * Fictitious Business License
. * Federal Tax ID Confirmation
Even assuming, for the sake of discussion, that Verisign's
document authenticator's are familiar with the Articles of
Incorporation or foreign equivalent for every country, and is able
to make a reasonable effort to detect a faxed fraudulent document,
how will the user who relies on the Digital ID know whether that
foreign country even has any laws that will allow him some measure
of recourse in the event that he suffers injury caused by the
developer's software?
Software developers located outside the United States but who
wish to allow their components to be downloaded both in the U.S. and
overseas. Verisign has begun ``franchising'' overseas
Certification Authorities who wish to base their practice statements
on the Verisign ``Certification Practice Statement''
(CPS). Although several are under development, BelSign
(www.belsign.be) is the first franchisee to go productional, , and
their stated territory is limited to Belgium and Luxembourg. So far
little details are available about identity authentication
procedures and other practical considerations and responses to e-
mail inquiries have not been forthcoming.
(i) Web sites Can Be Spoofed or Hacked
In December, 1996 the Secure Internet Programming team at
Princeton University published a technical report describing an
Internet security attack called ``Web spoofing.'' In this
scenario, an attacker:
. * Creates a shadow copy of a web page;
. * Then, funnels all access to the web page through the
attackers machine;
. * And finally, tricks the unwary consumer into revealing
sensitive or private data, such as PIN numbers, credit card numbers
or bank account numbers
Web spoofing requires that the attacker be able to interject his
machine between the server and client, in a man-in-the-middle
attack. Although under some situations certain visual cues may be
used to detect the presence of a spoofed Web page, these can be
eliminated by the skilled programmer. The only real solution is to
check the ``View Source '' option and read the html source
code for the Web page the user is currently browsing to know for
certain whether their browser is connected to the correct site. Even
a server and client using SSL can be spoofed if the hacker is able
to intercept the client's initial request for authentication to the
server and before a secure link is established. Once the
unsuspecting user is connected to the attacker's bogus Web page, all
transactions between the user and the certification authority can be
intercepted and fraudulently manipulated. Thus, a harmful ActiveX
program could easily be made to look as though it came from a
``known'' and trustworthy developer. After the program has
downloaded to the user's PC and done its damage there is no way for
the user to identify the developer because the program never had a
Digital ID in the first place. Furthermore, the knowledgeable hacker
will delete or modify the browser's history file so no record would
remain of the user's visit to the spoofed Web site. According to Ed
Felten, co-founder of the Princeton Internet Programming research
team, there have been reports of the FBI investigating false sites
and forcing them to shut
(j) Obtaining a Digital ID Through Fraudulent Means
Fred Mclain, software developer, consultant, and author of the
now infamous ActiveX ``Exploder'' control (see below),
provides the following perspective on the Authenticode ``code
signing'' process, from a FAQ on his personal Web site located
at www.halcyon.com/mclain/.
Code Signing simply attempts to identify who signed the control.
Anyone can go out and get a code signature. It's a pretty much
automatic process. You go to a web site, give them a name, address,
credit card number and some other stuff (none of which have to be
yours), click ``1 Agree'' on a page full of legal jargon,
and pretty soon you get an e-mail with the information you need to
sign the control in it. Once you have your Digital ID, you can sign
any unsigned ActiveX control. Nobody reviews these controls! In
other words, a signature doesn't tell you who wrote the control and
it doesn't tell you if the control is safe or not. Heck, with the
number of hot credit card numbers out on the net, it doesn't even
tell you for sure who signed it. A danger is that seeing that a
control is signed will give folks a warm fuzzy feeling about the
control, and encourage them to run it, even though it does not
guarantee their safety!
A recent Associated Press news item from San Francisco dated May
22, 1997
[[Page 28633]]
demonstrates the prevalence of credit card theft on the Internet and
the accessibility to those stolen numbers. The article reports that
according to Bureau spokesman George Grotz, the FBI recently
arrested a hacker who used a ``sniffer'' program to
eavesdrop on electronic transactions between customers and a dozen
companies selling products through a major Internet provider. The
sniffer software gathered 100,000 credit card numbers along with
enough information to use them. The hacker was arrested for
allegedly attempting to sell the information to an undercover FBI
agent who saw the hacker's advertisement on a computer bulletin
board.
FBI statistics indicate that the majority of computer crimes go
undetected, and, until recently, most of the ones that are detected
are never reported. Therefore it is safe to assume that there are
many other sources of fraudulent credit card information gathered
from the Internet that are available to persons registering ActiveX
controls. Frequently the credit card owner will not realize their
number has been stolen for several weeks or months, depending on the
thief's spending patterns. As a result, if a stolen credit card is
used to acquire a Digital ID using fake identification, the
fraudulent charges will go through undetected and because there is
no retroactive follow-up on the part of Verisign or Microsoft, the
certificate will remain valid even after the card theft has been
discovered and the card invalidated, unless the defrauded consumer
makes the effort to contact them which is unlikely.
FACTUAL EXAMPLES OF ACTIVEX-RELATED SECURITY RISKS
(1) InfoSpace Program Compromises Authenticode Security
On September 23, 1996 CNET-Online and other publications
reported that Lycos, a WWW Search engine company posted a program on
its Web site that would allow downloadable programs with InfoSpace
Digital Ids to bypass the Authenticode security controls in Internet
Explorer.
Nick Wingfield's article ``Program compromises IE
security'' explains that because the program which was created
for Lycos by InfoSpace, a startup Internet company, circumvents IE's
security warning window, InfoSpace could sneak programs onto a
user's personal computer without warning.
InfoSpace executives denied that there was any malice intended
in its program, adding that it has provided Lycos with an updated
version of the code. Lycos planned to post the new program later
that evening, according to InfoSpace. ``It was a bug that got
incorporated into the production code,'' InfoSpace CEO Naveen
Jain said. Although the InfoSpace program apparently was not created
with malicious intent, according to Wingfield ``it underscores
the fragility of Internet Explorer's security defenses, as well as
broader security issues related to downloading over the
Internet.'' ``Code signing is not a guarantee of code
quality,'' Charles Fitzgerald, a product manager at Microsoft
said. ``It's on accountability trail.''
The InfoSpace ``bug'' modified the Windows 95 Registry
configuration setting by simply registering InfoSpace as a
``Trusted Publisher'' thereby allowing all code from
InfoSpace to be downloaded automatically without requesting the
user's consent. The operation is akin to inviting a guest over to
your house for dinner before you leave town for a month-long
vacation and having them copy the key to your front door without
permission. If the guest enters your house while you're gone and a
neighbor questions him about it, the guest only has to show the
neighbor the copy of the key as confirmation he has your permission
to enter. Whenever the user's browser detects an InfoSpace program
it will automatically be downloaded without the user's awareness or
consent, because Authenticode has been told to automatically trust
all InfoSpace developed programs. ``Clearly their software is
doing something a tad aggressive,'' said Rob Price, a group
program manager for Internet security at Microsoft.'' (With
Authenticode), users are making a one-time trust decision, this is a
persistent trust decision.''
(2) Symantec Corporation's Norton Utilities Victimized by
Malicious ActiveX Control According to information posted on their
Web site (www.symantec.com), on April 7, 1997, Symantec was notified
that a malicious Web site had been created that uses an ActiveX
control to gain access to a user's PC if they use Norton Utilities
2.0 for Windows95 and get on the World Wide Web. Because a specific
component (TUNEOCX.OCX) of the Norton Utilities System Genie is
marked as a script file, ActiveX-aware WWW scripts can make use of
it as an ActiveX control. The result is that a malicious user could
use the script to run any command, such as delete, format or ftp, on
the local host. Symantec responded to the news quickly and
responsibly, posting a fix for the problem within 24 hours.
(3) ``Exploder'' Control
Software developer and consultant Fred Mclain created a live
demonstration of ActiveX's capabilities in late summer of 1996.
Mclain created an ActiveX control which he called
``Exploder'' and which he placed on his Web site with the
explanation that it would perform an automatic
``graceful'' shutdown of any user's PC running Windows95
who chose to voluntarily click on the control link and automatically
download it to their PC. Because the control caused a
``graceful'' shutdown no damage was caused to the user's
PC, but the damage to Microsoft's image was immediate and
irreversible. As recently as April 1997, Sun Microsystems CEO Scott
McNealy was still demonstrating MClain's Exploder control to crowds
of Java enthusiasts.
(4) Germany's Chaos Computer Club Live Demonstration To Make
Bogus Money Transfers From Intuit's Quicken Online Banking Customers
The Chaos Computer Club (CCC), a German hackers group from
Hamburg, demonstrated on national TV in February 1997 that they can
use an ActiveX control to steal money from one account and put it
into another without the use of a Personal Identification Number
(PIN) during an online banking transaction.
CCC showed that once the ActiveX control is downloaded by a user
browsing their Web site who uses Intuit's Quicken for electronic
banking, the control will add an extra electronic fund transfer
command to the pending transfer list. The next time the user does
his or her banking online, the bogus transaction will get executed
along with the rest without alerting the user.
The Computer Club's stated purpose in holding this public
demonstration was to alert people about the risks associated with
doing business on the Internet and specifically with ActiveX.
intuit, the company that develops Quicken, responded by
recommending that users disable the ActiveX controls in their
Internet Explorer browsers or switch to the Netscape Navigator if
they are concerned about the safety of ActiveX controls. The company
also stated that of the 9 million copies of Quicken currently in use
worldwide, the present U.S. version of Quicken can only be used to
transfer money from ``pre-authorized'' accounts as
approved by the user. A future German version of the software will
have encryption features to prevent hackers from breaking in. To its
credit, Intuit did an excellent job of public relations
``damage control'' and used wide, the Web, because it is
the the situation as an opportunity to educate consumers on how to
take proper safeguards to protect themselves on the Internet in
general and from similar situations in the future.
RECENT MICROSOFT SECURITY ENHANCEMENTS
(1) Microsoft's Authenticode 2.0--;Band-Aid for a severed
artery
Microsoft recently announced Authenticode 2.0, a significant
upgrade to the initial version which was first released less than
one year ago. On the plus side the new upgrade includes a number of
features Microsoft says will make downloading code safer, including
time-stamping support to ensure that code was signed with a valid
digital certificate. Various Microsoft bulletins and announcements
inconsistently report that It also supports access to certificate
revocation lists (CRLs), a feature that checks in with an online
list of revoked certificates before downloading code.
However, on the negative side the logistics of the upgrade are
cumbersome, time-consuming and will potentially result in delays
while unsuspecting users are forced at the last minute to download
either the upgrade. Software publishers who have signed their code
prior to June 1997 must re-sign their code by June 30, or before
their current Digital ID expires. According to Microsoft, because
Authenticode 2.0 checks the revocation list to determine whether the
Digital ID is still valid, it will notify a user who wants to
download an control that has not been re-signed as either unsafe to
download (if their security is set to High), or out-of-date (if
their security is set to Medium). Only code that has been re-signed
will appear in the revocation list as safe to download.
This upgrade is significant as a validation of Microsoft's
willingness to obfuscate the facts and fabricate its own reality, in
its single-minded pursuit of market share. Prior to this upgrade a
user was expected to navigate the maze of menus and options on
[[Page 28634]]
the Verisign Web site to locate CRL information. No explanation or
instructions were presented to the user when the subscriber's
certificate appeared on their screen, informing him that he must
inquire of this proprietary database to find out whether the Id used
to sign the certificate he was viewing and potentially relying on
was still valid or whether it was suspended or revoked. Also,
without the time stamping capability, it was impossible for the user
to tell whether the certificate appearing on his screen was signed
using an expired Digital Id or not. Although Microsoft and Verisign
engineered this upgrade prior to the time most Digital Ids and
certificates would have expired, there was no advance acknowledgment
of this limitation. One can only hope that other essential
attributes of this ostensibly trustworthy Authenticode security
model are not still on the drawing board to released later as
enhancements.
(2) ``Security Zones''
This new feature will let users or their network administrators
arbitrarily divide the Web sites into four predefined zones:
intranet, trusted extranet, general Internet and untrusted. Web
sites can then be assigned to a particular zone, and be subject to
the corresponding level of security protection. For example, ActiveX
controls and Java applets coming from the Internet might be assigned
to untrusted zones, and the administrator could prevent them from
being downloaded by configuring that zones security protection
accordingly.
In a sense this is just a ``macro'' version of Java's
``sandbox'' security model. The sandbox prevents Java
applets from gaining access to sensitive system functions that are
outside its boundaries. IE's security zones can also prevent Java
and ActiveX programs from gaining access to sensitive system
functions, depending on the way the security protections are
configured. However, the user or administrator is Unable to override
or misconfigure Java's default sandbox protection, whereas the IE
security zone protection can be turned off or improperly configured,
leaving the user completely vulnerable.
THE FUTURE OF ACTIVEX AND DOWNLOADABLE AND EXECUTABLE
CONTENT--;Will it ever be safe to ``trust'' again?
If Microsoft is unwilling, users must organize and develop
alternative means of protecting themselves from ActiveX. Some
examples of proposed alternatives include:
(1) Web of Distrust
One author is calling for an online, independent watchdog
organization that ``provides users with timely alerts on
hazardous or questionable software.'' This group would act as a
clearinghouse for reports of all harmful or suspicious downloadable
and executable content. The information could be distributed by
newsletters to subscribers, or available to any user by hyperlink
access before they make the ``fateful'' decision to
download. Kobielus writes, ``Our best defense against malignant
controls is to pool our experiences, expose the offending code-
mongers to the entire online ``.... Net community and thereby
burn them out of existence.''
Although certain legal issues and standards must be addressed
before ``burning'' anyone out of existence, this approach
could serve as a model for a more effective means of keeping
Cyberspace free from harmful code.
(2) Better-Business-Bureau OnLine (BBBOnLine)
The Council of Better Business Bureaus, best know for their
certification of local businesses in the physical world, have
developed a new U.S. online service, ``dedicated to helping
consumers identify ethical marketers on the Internet and thereby
make the Internet a safer, more reliable place to get information
and conduct business.'' According to information on their Web
site, companies that display an encrypted BBBOnLine CARE seal on
their Web pages have demonstrated their commitment to a series of
strict business standards for customer service and marketplace
ethics. Consumers can hyperlink from the seal to the BBBOnLine home
page to get a reliability report on the member company, including
their management, time in business, relevant aspects of its goods
and services, complaint experience and other evidence of responsible
marketplace behavior. Several large corporations involved in
Internet-related markets are co-sponsoring this service including,
Hewlett-Packard, Xerox, Netscape, AT&T, and GTE....
Some examples of their rigorous Participant Standards include:
Provide the BBB with inform ation regarding company location,
background, etc. which will be verified by the BBB in a visit to the
company's physical premises;
Be in business a minimum of one year (with limited exceptions);
Respond promptly to all consumer complaints; Agree to binding
arbitration, at the consumer's request, for unresolved disputes
involving consumer products or services advertised or promoted
online.
(3) PC-based Browser Add-on Security Products
Several vendors including Finjan Inc., and Safe Technologies
have recently released products that promise to provide protection
against all Internet threats, whether they are hostile ActiveX
controls or Java applets, eSafe Protect not only recognizes a set of
known security holes and rogue controls, but it also has the ability
to run in a learning mode. This allows the program to see where the
user's browser and e-mail clients usually read or write data or
execute other applications and develop a pattern of acceptable
behavior (similar to an ``intelligent'' sandbox model).
After the learning period is completed (usually about one day), any
activity outside of the normal range will generate an alarm, and
require user intervention to proceed. As a result it also provides
protection against yet-to-be-discovered security holes in popular
Web browsers or other unknown hazards. Independent Software
Accrediter is Necessary to Determine Software
``Harmlessness'' Digital signatures can measure the
authenticity of a person, but not their intentions or competence.
Until software developers see it is in their best interest to invest
more resources into writing secure software a separate entity is
needed to gather concrete evidence of the software developer's
intention and competence in advance. By testing their software
against industry benchmarks and providing guidance to the uninformed
user interested in ascertaining the safety of the software they want
to download this entity will bridge the gap between identity
verification and a software publisher's intentions and competence.
The ``Software Accrediter'' will validate that an
ActiveX component is both harmless and ``safe'' to operate
in an ``open'' environment by testing it against a set of
industry-wide programming and Internet security standards. For a
control to be ``harmless'', it must be unable to cause
damage by itself. For it to be ``safe'' the control must
be designed and written with a level of programmer competence that
prevents other controls from being able to advantage of programming
flaws and force it to cause harm.
The Software Accrediter will take on significance in the use of
downloadable and executable content to authenticate its conformity
to the norms of programming and Internet security practice. For
instance, where a Software Publisher Digital ID is executed and
digitally signed by a Certification Authority, the ``Software
Accrediter'' will issue a message of accreditation attached to
the Digital ID which validates the harmlessness and safety of the
program within certain parameters. The validation will identify the
level of risk associated with the control and the user can make an
informed decision whether or not to download the control, based on
the potential injury he could suffer. Neither the mere application
of a digital signature, or the restriction to ``safe
zones'' satisfies accreditation requirements for these types of
dangerous programs. The ``Software Accrediter'' will
combine the benefits of digital signatures with industry-accepted
software accreditation to provide high quality international control
authentication in a measure far exceeding current practices.
Public key cryptography, or digital signatures, can be used to
sign application software and certify it as ``safe'' as
judged by some certifier, only if the software is held up against a
set of industry standards--;where one of the
``safety'' properties would be that the application cannot
be corrupted by malicious external programs or data. Microsoft
offers Authenticode as a way of empowering the user to determine
whether individual downloadable executable Web content is safe to
use. It purports to provide the user with information which will be
``comforting'' to them in their analysis. Unfortunately,
Authenticode simply moves the burden of assurance on to the user,
without making the analysis any more tractable. It places an
unreasonable burden on users, who must decide which developers are
trustworthy based on insufficient data and inadequate tools. Because
even major mass market application software (e.g., Quicken) appears
susceptible to attacks by malicious controls, it is not clear what
this type of certification technique could add.
Netscape's Hybrid ``Code-Signing'' Solution
[[Page 28635]]
Netscape has recently released its own implementation of an
Authenticode-like Product that has much more robust security
protection against harmful downloadable and executable programs. In
addition to the generic characteristics of a digital signature;
authentication, integrity and non-repudiation, ``code-
signing'' also determines what an ActiveX control or Java
applet wants to do on the user's machine, Netscape's Communicator
checks to see if the software is signed and attempts to verity the
signature. If the applet is unsigned or if the signature is
unverified the applet is automatically restricted to running inside
the ``sandbox.''
When the downloaded program wants to get access to a PCs system
resources a dialog box is displayed that shows the user what kind of
access it wants, the identity of the signer, and the associated
risks. With this information the user then decides to allow or deny
the access that the Java applet has requested.
ActiveX controls can be packaged in such a way as to fulfill the
Java specifications necessary to allow code-signing. This process is
accomplished using the JAR Packager tool which creates an envelope
around the control that results in a cross-platform JAR file. The
JAR Packager is a tool that allows developers to sign, envelope and
compress Java applets, plugins, and any other type of file. The JAR
file format was a joint effort between JavaSoft and Netscape.
In the future, an evolving combination of these and other
approaches will be used to provide protection. Security guru Gary
McGraw believes the long-term solution combines ``code-signing
authentication and some sort of security model, like a [Java]
Sandbox.'' He believes it will be ``much easier to [add
code-signing] to extend Java .... than it will be reverse engineer
Sandbox into ActiveX.''
SUMMARY
The general outlook for ActiveX as a computer security problem
is unclear. The potential vulnerabilities are legion. Bearing in
mind the FBI's computer crime statistics indicate that over 80% of
all detected computer crimes go unreported, and many more of them go
undetected, during its initial 18 months in existence exploitation
of ActiveX has been virtually non-existent. Unfortunately, as the
economic incentive for creating malicious ActiveX controls
increases, it seems likely that attackers will attempt to exploit
its security vulnerabilities.
Given the obvious security risks presented by ActiveX, combined
with the absence of broad-based support for Authenticode, the only
possible explanation for Microsoft's continued pursuit of this folly
is a last-ditch effort to keep its hand in the Internet game and
maintain its share of the desktop computing software market.
Microsoft is Committed to maintaining its monopolistic hold on the
PC and Internet software industry by marketing its auto-immune
deficient ActiveX software product, and its parasitic partner
Authenticode. Even with the intellectual horsepower at its disposal
it appears to be unwilling to develop a secure alternative because
then there would be little incentive for users to purchase its
internet Explorer Web browser, and there would be little hope for
Bill Gates'' vision of a single, seamless Windows-based PC
desktop and Internet interface.
CONCLUSION
This article has presented some good points and bad points about
ActiveX and Authenticode both of which have only been in existence
for less than two years. It is inevitable that both security
protection for downloadable and executable programs and
Certification Authority policies and practices will evolve
gradually. Nevertheless, in the interest of minimizing the risk
exposure to the user, it would be prudent for software developers to
acknowledge these risks up front and allow users to understand them
and begin making informed decisions based on accurate information,
or paying customers must demand something better. Risks associated
with downloading any software from the Internet are unavoidable, but
Microsoft chooses not to explain those risks to users or give them
the tools to properly manage those risks. Instead what Microsoft
does provide is confusing, contradictory FAQs, bulletins and
marketing announcements that even go so far as to state,
``Because Microsoft must respond to changing market conditions,
this document should not be interpreted to be a commitment on the
part of Microsoft, and Microsoft cannot guarantee the accuracy of
any information presented after the date of publication.''
Microsoft understandably wants to be the first to market with
each of its latest Internet software products so it can gain
whatever advantage it can over its competitors. But they are cutting
corners at the customer's expense by leaving necessary security
features out and the customer needs to be informed to decide whether
it is an acceptable expense. In the wake of Love Canal, Three-Mile
Island, Hanford Nuclear Reactor, Rocky Flats and other life-
threatening breaches of the public trust we have matured as a nation
to the point where even the courts support our right to receive
advance notice before toxic chemicals are pumped into our back yards
and personal spaces. Yet Microsoft is allowing toxic ActiveX
components to be downloaded into our PCs without reasonable notice
and disclosure of all the risks by pretending that it's fake
security system Authenticode can provide reasonable detection and
defense.
The most effective long-term technical solutions appear to
require systemic changes in the way computer software is built and
the way software standards are developed and enforced. The safest
near-term alternatives for the majority of users all involve giving
up many of the ``bells and whistles'' that make Web
browsing so entertaining by configuring Internet Explorer browsers
to restrict all ActiveX controls from being downloaded to the
desktop.
* Copyright Rick Hornbeck, 1997.
Microsoft recently announced on TechNet that, as of the release
of XP, the only way that consumers and businesses can make on-line
purchases, or submit private data (e.g., on-line banking) through a
``secure'' (SSL-enabled) Web site, is by using new
features that are available exclusively on Windows XP, via the
Windows Update Web site. Users of Microsoft NT, ME, and WZK may
install an ``upgrade patch'' that will allow them to
manually download new root certs, and to use a limited subset of the
XP-based capability.
To better protect Microsoft customers from security issues
related to the use of public key infrastructure (PKI) certificates
and enhance the experience for Windows users, Microsoft is moving to
standardize and clarify the criteria for root certification
authorities in Windows XP. This standard also applies to root
certification authorities in Internet Explorer and any other
Microsoft product.
(http://www.microsoft.com/technet/security/news/rootcert.asp)
Let me repeat, as of the release of XP next week, the ability
for consumers using non-Microsoft operating systems to perform
``secure'' transactions via Internet Explorer (IE) will be
severely curtailed, and over the coming months, entirely eliminated.
When a user visits a secure Web site (that is, by using HTTPS),
reads a secure e-mail (that is, S/MIME), or downloads an ActiveX
control that uses a new root certificate, the Windows XP certificate
chain verification software checks the appropriate Windows Update
location and downloads the necessary root certificate. To the user,
the experience is seamless. The user does not see any security
dialog boxes or warnings. The download happens automatically, behind
the scenes.
Microsoft has no plans to provide an ``upgrade patch''
for the non-Microsoft versions of IE that it currently supports
(e.g., Solaris, Linux, HP-UX, and Mac.). Microsoft properly
considers Auto Root Update and Windows Update to be Windows
technologies for conveniently keeping users up to date with
certificates in the Microsoft Root Program (the user doesn't have to
take many steps to install the roots). However, it has no plans to
provide these convenience mechanisms for non-Windows platforms at
this time.
The result is that the only way that CAs or on-line merchants
can get their certificates into the IE browsers of non-Microsoft
consumers is by forcing the consumer to manually download and
install the certificate directly from a Web site. This eliminates
any level of trust assurance that may have resulted from IE's
existing root certificate accreditation process.
Under this new regime, when a consumer using IE on a non-
Microsoft platform enters a secure Web site to make a secure on-line
purchase, he is prompted to download and trust the CA root
certificate of any merchant whose root is not already in that
browser, The same is true if a Web site wants to download an ActiveX
control, which is signed by an unknown and hence ``un-
trusted'' Publisher, Eliminating future access to new root
certificates in its IE browser will deprive consumers using non-
Microsoft platforms from the ability to conveniently and
``securely'' make purchases at a secure Web site (HTTPS),
read secure e-mail (S/MIME), or download signed ActiveX controls
with the same level of trust assurance that he experienced prior to
this new regime.
This change will adversely affect the consumer, the on-line
merchant, and the CA,
[[Page 28636]]
as each of them has a stake in making the on-line experience as
smooth, secure, and convenient as possible. This latest manipulation
of the Internet software market by Microsoft will provide consumers
with a strong incentive to migrate to a Windows platform, so they
can continue to use the Web with the same degree of ease, and sense
of security as before.
In addition, some commercial PKI applications and products are
designed around consumer access to their root certificates in
Microsoft's IE. Eliminating consumer access to their root
certificates from IE will force them to restructure their
applications, and in some cases their whole product strategy. Of
course, Microsoft will argue that these vendors were receiving a
``free ride,'' while it developed the technology to
tighten up its PKI solution. However, Microsoft's PKI solution is
anything but ``tight,'' and in fact, it is still quite
immature. In addition, it will remain so for several years, to the
detriment of the consumer, and the industry.
This tactic is virtually identical to the one that Microsoft
used to eliminate competition in the browser market. It offered
features similar to Netscape's, but at no charge, because it could
afford to use its income from OS sales to offset the loss it took on
its browser product. Initially, Microsoft's browser was inferior to
Netscape. However, over time, as the marketing power of the Windows
desktop gradually surmounted Netscape's marketing channels, and as
Microsoft commandeered many of the existing Internet browser
standards, IE achieved a superior market position. This time
Microsoft provided consumers and the industry with
``free'' access to CA root certificates embedded in IE.
However, now that it believes it has eliminated any competition for
this service, Microsoft intends to force consumers to purchase XP or
another Windows platform, so they can continue to enjoy the same
convenience and benefits from digital certificates as before.
Although Microsoft will certainly claim otherwise, I believe it
is well within its power to continue to support the storage of new
root certificates in non-Microsoft versions of IE. However,
Microsoft representatives have indicated that they have no plans to
do so at this time. As are result, consumer trust in on-line
commerce, and the viability of many PKI solution vendors will both
suffer in Microsoft's latest grab for another piece of the Internet
software market, PKI. Microsoft's PKI solution is inferior to
current alternatives, and it will not achieve its promised
capabilities for many years, after using the public as its testing
ground.
Is Microsoft trying to corner another piece of the Internet
software market by illegally leveraging its market powers, as the
court agreed that it has done in the past? The pattern is virtually
identical.
Rick N. Hornbeck
556 S. Fair Oaks Ave,, Suite 346
Pasadena, CA 91105
[email protected]
(323) 363-;2151
PROFESSIONAL EXPERIENCE:
HORNBECK CONSULTING--;Pasadena, California
2000--;Present.
* Security Policy, Certificate Policy, and Certification
Practice Statement consulting and development; Internet and network
security policy consulting; PKI legal issue spotting and consulting.
Representative topics include privacy; identity authentication;
``qualified'' certificates, security services,
jurisdiction, and digital and electronic signatures; and local,
national, and international regulations and case law in both civil
and common law jurisdictions.
Customers include:
* ENSURELINK CERTIFICATION AUTHORITY--;San Diego, California
2000--;Present. PKI Consultant--;Certificate Policy,
Certification Practice Statement, and PKI-related consulting.
* ALPHATRUST CERTIFICATION AUTHORITY-Dallas, Texas 2000. PKI
Legal Consultant-Certificate Policy, Certification Practice
Statement, and PKI-delated legal consulting.
* EXPERIAN--;Orange, California 2000. PKI Legal
Consultant--;Consulted with in-house legal counsel, defining and
documenting application-specific, PKI-related legal issues.
ENTRUST TECHNOLOGIES--;Plano, Texas 1999--;2000. Senior
Security Consultant-Developed Security Policies, Certificate
Policies, and Certification Practice Statements for large national,
multi-national, and international organizations. Worked directly
with senior client management to determine 1heir PKI requirements.
Worked with sales force on national opportunities. Worked with
consulting partners to out source PKI consulting work during peak
periods and on joint projects. Provided on-site classroom training
programs lasting 3-;4 days for consulting partners and
customers on Entrust-specific security and PKI consulting
methodology and concepts.
Customers include: Experian, Bell Atlantic, MCI WorldCom,
Hoffman-LaRoche, State Farm Insurance, First American Real Estate
Information Services (FAREIS), Ernst & Young, Price Waterhouse
Coopers, People's Bank of China, Capital One, US Department of
Agriculture, Fidelity Investments, Illinois Secretary of State,
First Data Corporation ....
OFFICE OF COURT ADMINISTRATION, STATE OF TEXAS--;Austin,
Texas 1997--;1998. Strategic Technology Planner-Responsible for
the implementation of a statewide computer and communication network
linking all state courts. Developed supporting rules, policies,
guidelines, and statutes relating to the electronic filing of court
documents. Prepared cost analysis and preliminary design for the
Texas Judicial Committee on Information Technology, based on planned
technology.
ELECTRONIC COMMERCE SYSTEMS--;Los Angeles, CA
(1995--;96); Austin, TX 1997-;1998. Principal-Consulting
company provided electronic commerce consulting services with an
emphasis on Internet and Web-based security, public-key
infrastructure (PKI), digital signatures, electronic filing of court
records, and electronic payments.
Customers included:
Wells Fargo Bank--;Los Angeles, California, 1996.
Database Developer-Designed and developed MS-ACCESS database
integrating First Interstate Bank commercial loan database with
Wells Fargo data following bank merger.
Orange County Superior Court ('intern, part-time)--;Santa
Ana, California, 1996.
--;Court Technology Department--;Drafted new court rules
for electronic filing of pleadings via the Internet for pilot family
law electronic filing project.
--;Law and Motion Research Department--;Reviewed,
researched, and summarized legal motions for judge's Law and Motion
hearings.
LAX SHUTTLE TRANSPORTATION CONSORTIUM, El Segundo, California
1996. Arbitralion Hearing Officer ('part-time)--;Arbitrated
appeals from personnel disciplinary actions.
ATTORNEY GENERAL'S OFFICE, DEPARTMENT OF JUSTICE, STATE OF
CALIFORNIA--;Los Angeles, California 1995-;96. Legal Intern
(part-time)--;Wrote briefs, motions, and memos; performed legal
research in support of Deputy Attorneys General; assisted in trial
preparation.
COMPUTER SCIENCES CORPORATION--;El Segundo, California
1993--;95. Senior Management Consultant--;Developed
Information Systems Strategic Plan and Architecture for United
States Air Force, Materiel Systems Command, Los Angeles Air Force
Base (LAAFB). Delivered an integrated, base-wide strategic plan
encompassing reengineered business processes, network operating
systems, e-mail, and network security for over 25 unique, on-base
Air Force organizations with disparate computer and network
platforms.
TRW SPACE & DEFENSE (ELECTRONIC SYSTEMS GROUP), Redondo
Beach, CA. 1988-;93. Network Systems Engineer-Led team in
design, development, and implementation of a reengineered purchase
order processing system using state-of-the-art client-server
technology linked with the corporate network. Implemented software
upgrade for Procurement EDI application .and integrated with batch
FTP transfer from mainframe. Responsible for implementation,
administration, and security of multiple, inter-connected local area
network servers running SCO UNIX, AT&T System V.4, and SUN OS
over TCP/IP, and DOS/Windows clients.
PRICE WATERHOUSE, OFFICE OF GOVERNMENT SERVICES, Los Angeles,
California 1987. Senior Consultant Created functional model for
reengineered application in support of ``Los Angeles Employees
Retirement Association'' (LACERA) software development project
team.
XEROX CORPORATION, PRINTING SYSTEMS DIVISION, El Segundo,
California 1985-;87. Senior Analyst/Programmer-Supervised two
analyst/programmers and coordinated design, development and
implementation of purchase order entry system for Printing Systems
Division.
TRANSAMERICA CORPORATION, Los Angeles, California 1983-;85.
Analyst/Programmer-Assisted in design, development, and
implementation of a nation-wide information system enabling
insurance agents to submit customer applications for insurance
coverage directly
[[Page 28637]]
into the mainframe computer in the home office from field offices
across the country.
TEACHING EXPERIENCE:
* UNIVERSITY OF PHOENIXON-LINE, 2001
Part-time instructor-Risk Management in a CIS Environment
(Computer Security); Contracts, Ethics, and Intellectual Property;
* SANTA MONICA COLLEGE, 2001.
Part-time instructor-introduction to Computer Systems;
* CALIFORNIA STATE UNIVERSITY, LOS ANGELES, 2001.
Part-time insfrucfor-Internet security.
LOYOLA LAW SCHOOL, Los Angeles, California.
Juris Doctor--;December 1996.
Dean's List Honors, 1995.
California State Bar Foundation--;Public Service Grant 1996.
UNIVERSITY OF SOUTHERN CALIFORNIA, Los Angeles, California.
Master of Science, Information Systems Management--;May
1990.
CALIFORNIA STATE UNIVERSITY, LOS ANGELES, California.
Bachelor of Science in Business, Minor in Business Information
Systems--;June 1983.
Dean's List Honors, 1982.
ADMITTED TO PRACTICE
State Bar of Utah--;May 2000, Active Member.
ARTICLES, STANDARDS ACTIVITY, PRESENTATIONS, AND COURSES TAUGHT:
PUBLISHED ARTICLES:
* Electronic Filing of Court Records: Standards and Open Systems
(West Group 1998);
* Electronic Court Filings for Attorneys: What, Where, When, Why
and How (West Group 1998);
* Into the Breach.'' Understanding Security Issues Involved
in Commerce on the Internet--;Parts I and II, The DataLaw
Report, (Clark, Boardman, and Callaghan 1997);
* The Troubling Truth About ``Trust'' on the Internet,
Journal of Electronic Commerce, (EDI Group, Ltd. 1997);
COMPUTER SECURITY, PKI STANDARDS, AND RELATED ACTIVITY:
* Internet Engineering Task Force (IETF) ``RFC 2527,''
Internet X. 509 Public Key Infrastructure Certificate Policy and
Certification Practices Framework, attributed contributor (March
1999);
* GUIDES--;Guidelines, Methodologies and Standards to set up
a CA for Digital Signatures, European
Commission, attributed contributor (June 2000); * American Bar
Association (ABA), Information Security Committee, Digital Signature
Guidelines, drafter (August 1996).
* High-Technology Crime Investigation Association--;Southern
California Chapter, Member.
* Internet Corporation for Assigned Names and Numbers
(ICANN)--;Member At Large.
PRESENTATIONS AND COURSES TAUGHT:
* Risk Management in a CIS Environment, University of Phoenix
On-line, July-August 2001.
* Certificate Policies and Certification Practice Statements in
a Network Trust Model, The Internet Security Conference (TISC),
October 1999 Boston, MA;
* Electronic Filing of Court Records: Standards and Open
Systems, American Bar Association Annual Meeting, Presidential CLE
1998.
* Electronic Filing of Court Records: A Conceptual Framework,
1998 ABA TechShow;
* Introduction and Intermediate Public-key Infrastructure (PKI);
Digital Signature, and Related Standards at the State, Federal, and
International Levels; Certificate Policies and Certification
Practice Statements (Entrust) 1999;
* Introduction to UNIX Operating System, San Jacinto Community
College, Clear Lake Texas, (NASA) 1997.
FOREIGN LANGUAGES:
French (Fluent), Spanish (Proficient).
MTC-00029415
From: Robert Heath
To: Microsoft ATR
Date: 1/28/02 11:51pm
Subject: Microsoft Settlement
Hello,
I just wanted to share my opinion on the Microsoft Settlement.
As it stands, I don1t see how the current proposal of basically
flooding the market with Windows-based PCs would create or foster a
competitive environment. I truly hope those making the decisions
think things through and see this as what seems to be an underhanded
and sneaky way to comply with a demand without really complying at
all.
Robert P Heath
Panama City, FL
MTC-00029416
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:51pm
Subject: Microsoft Settlement
Mary Ann Goeppele
15943 NE 139th Place
Woodinville, Washington 98072
January 28, 2002
Attorney General
John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you today on behalf of my husband and myself in
regards to Microsoft. We both support this company whole-heartedly,
and we believe this litigation should be ended. During a time when
we are facing many pressing national and economic issues, we should
not continue to spend precious time and resources concentrating on
Microsoft.
In our opinion, the proposed settlement is more than adequate to
deal with the issues in this case. Microsoft has pledged to share
more information with other companies and be monitored by a
technical oversight committee for compliance. Microsoft has also
agreed to design future versions of Windows to make it easier to
install non-Microsoft software. This settlement is complete and
thorough.
We are also concerned about the negative effect the continuation
of this litigation will have on the Seattle area economy. As a
result of major Boeing lay-offs, Washington State now has one of the
highest unemployment rates in the country. Dragging out this issue
further will have an even more detrimental effect on the local
economy. It is time to end this litigation and focus our energies on
more pertinent issues. Thank you for your support.
Sincerely,
MaryAnn Goeppele
MTC-00029417
From: Susan Handy
To: Microsoft Settlement
Date: 1/28/02 11:47pm
Subject: Microsoft Settlement
Susan Handy
4560 Kings Crossing Drive
Kennesaw, GA 30144
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Susan J. Handy
MTC-00029418
From: Michael Hemond
To: Microsoft ATR
Date: 1/28/02 11:52pm
Subject: Microsoft Settlement
To whom it may concern,
I am writing to express my concern with the proposed settlement
of United States v. Microsoft Corp., Civil No. 98-;1232.
I am a regular user of both Microsoft Windows and a distribution
of the operating system known as Linux. I am not a professional
software developer, but I have at times written software for both
platforms. In essence, my concern is that the proposed remedy for
Microsoft's anticompetitive behavior will not restore competition
even if its intent is enforced and it is effective in curbing
illegal actions.
In my view, a key feature of a competitive operating system
market is that users have
[[Page 28638]]
the option not to purchase or use any given any given operating
system (OS). Specifically, competition in the OS market will be
restored only when it is feasible for most users to elect not to
purchase Microsoft Windows for a given application.
Unfortunately, a consequence of Microsoft's dominance in many
markets is that its ``file formats'' have become de facto
standards. (By ``file formats,'' I am referring to the
methods used by applications such as Microsoft Word to encode data
such as text, document layout, images, etc.) These formats are not
publicly available. Attempts at deciphering certain formats have
been made by (for example) Sun Microsystems'' StarOffice;
however, reverse engineering complete functionality is extremely
difficult and has not yet been accomplished successfully for many
important formats. Furthermore, changes to such formats are not
difficult for Microsoft relative to the burden placed on attempted
competitors in deciphering any new changes.
The result of this ``standardization'' of proprietary
formats, combined with Microsoft's policy of releasing the
applications using these formats only for Windows (although there
are exceptions, e.g. Microsoft Word for MacOS), is that potentially
competing OS'es cannot run applications that interoperate reliably
with these ``standards.'' Thus, anyone wishing to use
these ``standard'' formats, even for purposes of e.g.
backwards compatibility with existing documents, must purchase not
only the relevant Microsoft application but also Microsoft Windows.
Such a user may also use other OS'es but is effectively required to
purchase Windows. Please note that I do not believe that Microsoft's
conduct regarding file formats is illegal, and to my knowledge it
has not been found to be so in any court of law. However, I do
believe that it will be impossible to restore competition to the OS
market unless the issue of file formats is addressed, given the
dominant position held by Microsoft. If the fruits of Microsoft's
illegal behavior are to be negated successfully, the final remedy
must address this issue. An obvious solution would be to require
from Microsoft full disclosure of information necessary to
flawlessly read and produce files of any Microsoft application. Such
a remedy could be similar in spirit to, but more broad than, part
III.E of the revised proposed Final Judgement (requiring disclosure
of any communications protocols necessary for interoperating with a
Microsoft OS).
Thank you for giving me the opportunity for comment. I look
forward to a settlement addressing these issues and a more
competitive operating system market.
Sincerely,
Michael Hemond
MTC-00029419
From: Michael Greisman
To: Microsoft ATR
Date: 1/28/02 11:55pm
Subject: Microsoft Settlement
To whom it may concern,
My observations of Microsoft's outrageous behaviors in court and
in business lead me to believe that nothing short of dismemberment
of the corporation will control its behavior.
I disapprove of this settlement, and hope that the Justice
Department presses its case once more for a splitting of Microsoft
into several completely separate companies.
Nothing I observed over the years of this case indicates that
Microsoft ever intends to comply with the intent of a judicial
ruling. Even if this settlement succeeded in controlling Microsoft's
behavior for a number of years, I am convinced that Microsoft would
immediately reknew its anticompetitive actions as soon as its
restrictions ended.
Instead, I hope to see Microsoft split into three, four, or more
separate and unrelated companies: operating systems (e.g. Windows),
software (e.g. Office), hardware (e.g. XBox), and ISP (MSN). Since
Microsoft sees fit to attempt to dominate in every popular
technology-related market, there may be other divisions to split
off, as well. Only then can we hope for Microsoft to cease using its
near-monopoly on PC operating systems to leverage its position in
every other market.
Thank you for your attention.
Sincerely,
Michael Greisman
Webmaster
Scanalytics, Inc.
703-;208-;2230
[email protected]
Michael Greisman
Applications Scientist Scanalytics, Inc.
[email protected]
MTC-00029420
From: Landon Derentz
To: Microsoft ATR
Date: 1/28/02 11:53pm
Subject: Microsoft Setlment
Dear judge,
Microsoft is in my opinion, has broken in the past and will
continue to break many anti-trust laws with this back-room deal. The
PFJ will not only allow Microsoft to have an unfair advantage on the
market, but will also hinder other companies such as Netscape in
having a fair chance at this thing called capitalism. Please do not
allow this deal to go through. Thank you.
Sincerely,
Landon Derentz
907 West 28th St.
Los Angeles, CA 9007
CC:[email protected]@inetgw
MTC-00029421
From: juan alejandro urquizo-Soriano
To: Microsoft ATR
Date: 1/28/02 11:54pm
Subject: Microsoft settlement
Dear Sir:
Microsoft is a real threat,They are the biggest monopoly I have
ever seen. Please help the people of the world.
Juan
MTC-00029422
From: David Gallardo
To: Microsoft ATR
Date: 1/28/02 11:54pm
Subject: Microsoft Settlement
I am strongly opposed to the settlement. It is too little, too
late.
In the time between the rulings finding Microsoft guilty of
violating antitrust laws, Microsoft has increased its dominance of
the market even further, by continuing to use the same type of
anticompetive business practices.
Punishing Microsoft for its business practices will not quash
innovation as they and their supporters claim. On the contrary, by
allowing healthy competition to thrive, it will encourage
innovation.
Best regards--;
David Gallardo
MTC-00029423
From: Bruce C. Pippin
To: Microsoft ATR
Date: 1/28/02 11:55pm
Subject: I am backing Microsoft
Well, I don't know what comment I could make that isn't obvious
to at least a large part of the population. I'm not an historian nor
am I an attorney. I am but a simple consumer.
There is little doubt in my mind that every man, woman and child
on the planet is aware of the case against Microsoft. In at least a
general sense, we all know the jest of the case. I think consumers
have already responded to the case brought forward by a small
handful of attorney's.
Yes, I think we responded well to the needs of a few attorney
generals that need to ``protect us'' from
``evil''. Oh yes ... We all know about the righteous.
Before, during, and after this case the general public will
continue to appreciate Microsoft innovations. We will continue to
purchase their products. I have, over time, used some of Microsoft's
competitors products (Netscape for example). I have no doubt that
these competitors did not fail due to practices by Microsoft, but by
their own hands. Even when given the choice (which we have always
had) we have made the choice to pick Microsoft products.
It is sad that only after millions of dollars and several years
will we all have the opportunity to reflect on current events and
realize what nincompoops these attorney's are for pursuing a case
against Microsoft. I back dropping this case against Microsoft
without any reservations. One citizen ... And there's my one vote.
No, among other things, I am not an eloquent writer, but I did
feel compelled to voice an opinion.
Regards
Bruce C. Pippin
MTC-00029424
From: Brian Fristensky
To: Microsoft ATR
Date: 1/28/02 11:53pm
Subject: Comments on Microsoft Antitrust case
Please see attached HTML file.
Brian Fristensky ... now Microsoft has a new version Department
of Plant Science I out, Windows XP, which according to University of
Manitoba I everybody is the ``most reliable Winnipeg, MB R3T
2N2 CANADA I Windows ever''. To me, this is
[email protected] I like saying that
asparagus is Office phone: 204-;474-;6085 I ``the
most articulate vegetable ever.'' FAX: 204-;474-;7528
http://home.cc.umanitoba.ca/frist--;Dave Barry
[[Page 28639]]
Comments on Civil Action No. 98-;1233 (CKK) United States
of America vs. Microsoft Corporation State of New York et al. vs.
Microsoft Corporation by
Brian Fristensky
Associate Professor
Department of Plant Science
University of Manitoba
Winnipeg, MB, Canada R3T 2N2
Phone: 204-;474-;6085 FAX: 204-;474-;7528
[email protected]
http://home.cc.umanitoba.ca/frist
Judge Colleen Kollar-Kelly
[email protected]
Dear Judge Kollar-Kelly,
I wish to comment on the Microsoft Antitrust case awaiting
judgment in your court. To keep things brief, I shall focus on
points that I think have not been adequately brought out in the
proceedings of which I am aware.
Point of information:
I am an Associate Professor in the Department of Plant Science
at the University of Manitoba in Winnipeg, Canada. I have been doing
research in molecular biology for over 20 years. I was also
instrumental in the original development of software for DNA
sequence analysis, beginning in 1979. I am an active contributor to
the field of Bioinformatics, which has gained recognition recently
in its role in sequencing the human genome.
Finally, I am an American citizen.
A. The effects of Microsoft's practices, and the indirect
effects of its ``de facto standard''
1. The Microsoft culture
It has been well established in court proceedings that Microsoft
has a long history of premeditated anti competitive practices. The
main point I want to make is that the decision making process at
Microsoft is centered around leveraging the existing monopoly to
maintain the monopoly. When you have the monopoly advantage, you
choose different strategies than a company that uses different
premises for decision making, such as ``we need to be
competitive'' or ``let's make the best product possible,
and then figure out how to best market it.'' Microsoft's
decision making, as shown in documents already presented to the
court, has become entrenched in the practice of monopoly.
It is this type of mindset that allows Microsoft to treat its
customers with contempt. The most glaring example is the Mail and
News program, Outlook Express (OE). OE, through its feature of
allowing the user to directly click on any icon in an email or news
message, resulting in the haunch of an application, is fundamentally
insecure. Even after repeated spread of viruses such as the
``Melissa'' virus, each time on a world-wide scale,
Microsoft has refused to eliminate this feature from OE. Similarly,
the integration of Visual Basic into applications such as MS Word
makes it possible for viruses to propagate via text documents. In
both cases, Microsoft has completely ignored security experts who
advise that these strategies are fundamentally insecure, and remain
invitations to an endless stream of viruses. Only a company with an
arrogant certainty of market domination could afford to ignore such
obvious flaws in its software.
2. The fact of monopoly results in de facto anti competitive
effects
a) ``No one was ever fired for buying Microsoft''. In
fact, this quote is based on an earlier generation quote ``No
one was ever fired for buying IBM''. People make decisions not
based upon whether a product is better, but they buy the MS product
because it is a safe, defensible decision for which they can't be
criticized.
Examples:
i) Long after NCSA Mosaic, and its successor, Netscape were
introduced, Microsoft created Internet Explorer (IE). Even though IE
was clearly an inferior product for several years, it quickly gained
market share. Further leveraging of the Windows platform resulted in
the ultimate domination of the browser market, at the expense of
Netscape.
ii) RealPlayer and other products from www.real.com virtually
created the market for browser-based multimedia. Yet, with the
bundling of Windows Media Player (WMP), this established platform is
losing ground. Why develop for RealPlayer when you can count on
everybody having WMP?
iii) At one time there was a competitive market among word
processors, spreadsheets, and drawing/presentation programs. Corel
Word Perfect, Quattro Pro, and CorelDraw/CorelPresents were viable
competitors to MS Word, MS Excell, and Powerpoint. Today, the MS
products are overwhelmingly the only products in widespread use.
In each case, the Microsoft product took over an already
existing market, not by being better, but simply, because it was
made by Microsoft. These examples illustrate the point that the de
facto aspects of the Microsoft monopoly are far more pernicious than
the deliberate anti competitive practices. Put another way,
everybody buys Microsoft because everybody has Microsoft. This
phenomenon ensures the continuation of the Microsoft monopoly. One
might call this the ``market share cycle''.
b) Why develop for other platforms when Windows is the only one
that anyone uses. Just about any software developer will tell you
that they develop for Windows because it is the dominant desktop
platform. Although virtually all computer science professors will
teach their students that software development should aim to be
platform-independent (for very good reasons), the reality of the
marketplace is such that this advice is ignored. Developers, not
surprisingly, develop for platforms with a large market share. For
most software developers, even developing for the Macintosh platform
is not worth their while, because it is such a small percentage of
the market share. The net result is that no one chooses which
platform to develop for, based on criteria such as quality of the
platform, or ease of development. There is no choice at all. They
develop for Windows.
Put another way, everybody develops for Windows because
everybody develops for Windows. The process is self-perpetuating.
c) The self-perpetuating Microsoft monopoly impedes the
evolution of computing There are alternatives to the desktop
computing model of MS-Windows. While Macintosh is the most visible
competitor, Linux is also a credible contender. As well, server-
based solutions such as Sun Microsystem's iPlanet platform (http://
www.sun.com/software/sunone/overview/platform/ ), make it possible
for both novice users and high-tech users to replace the desktop
computer entirely with a user-friendly graphic terminal, or to run
applications remotely through a browser.
The latter is a viable model as high-speed Internet connections
proliferate, especially because they eliminate the need for the user
to do any system administration, and insulate the user from the
hardware obsolescence, and allow the user to access their computer
files and applications from anywhere in the world. Such alternative
solutions are in fact used by a very small number of users. They are
only slowly gaining ground due to the Microsoft monopoly. The users
of these alternative platforms would all argue that they do so
because these platforms are superior to the Windows platform.
Whether any or all of these alternatives is actually superior is
moot. A putatively-superior computing platform simply can not
compete with the de facto Microsoft standard.
d) The Microsoft monopoly has a negative effect on the quality
of alternative systems. Even those of us who have chosen to use
systems other than Microsoft Windows feel the negative impact of the
monopoly. In my own case, I have operated my research laboratory,
and performed all my teaching duties, almost exclusively on the Sun
Unix system. Detailed examples can be found at http://
home.cc.umanitoba.ca/psgendb/nc/. At home, my family and I
exclusively use Linux.
While the members of my lab group, myself, and my students have
often been ahead of the curve in utilizing networked computing
resources, there have been a number of stumbling blocks resulting
from the Microsoft monopoly. Probably the greatest problem is the
fact that the choice of applications available on the Sun Unix
system or Linux is much smaller than on Windows, due to the much
smaller desktop market share of these systems. Again, developers
won't write for these systems because the market share is small, and
the market share stays small because the applications aren't
available. When new hardware devices are marketed (eg. CD-;ROM
drives, printers, video cards etc.) the manufacturers seldom write
drivers for non-Microsoft platforms. At the same time, they often
refuse to make their specifications public, forcing the Linux
community to reverse engineer new models in order to write device
drivers.
The market share cycle also influences such fundamental things
as the ability to purchase alternative systems. All computer stores
sell computers with MS Windows preloaded. Only a small number of
vendors will sell Linux pre-loaded, even though Linux is freely
available. In many cases, a person wishing to run Linux might
actually have to buy a Windows machine, thus paying for Windows, and
then erase the hard drive and replace it with Linux. This phenomenon
is sometimes referred to as the ``Microsoft Tax''. As
well, because the user has to take the extra step of installing
Linux, Linux is falsely perceived as being less user friendly. This
would not be the case if the consumer
[[Page 28640]]
had a choice of buying a pre-installed Linux system.
The self-perpetuating Microsoft monopoly therefore results in an
arguably flawed operating system maintaining control of the
direction of computing, even when better alternatives exist.
B. A behavioral remedy is inadequate because:
* It does not break the market share cycle. As long as Microsoft
remains the ``1 stop shopping'' choice for all software
needs, no alternative platform, whatever its merits, can compete.
Even worse, as the Windows platform continues to scale to midrange
servers, that vertical integration will make the Windows platform
even harder for IT decision makers to avoid.
* It guarantees endless litigation. MS has managed to make a
career out of doing what it wants anyway, while tying up cases in
courts for years while competitors flounder.
* It still leaves the MS anti competitive culture intact. The
Microsoft corporate culture, as the company is now structured, is
oriented toward perpetuating the monopoly. As long as Microsoft
remains intact, the culture and attitudes of its employees will be
perpetuated.
* One of the recommendations of the joint DO J/Microsoft
settlement released in September is that Microsoft should be
required to make its software available on other operating systems
besides Windows. This might actually result in a further domination
of the desktop market, because, due to the ``No one ever got
fired for buying Microsoft'' phenomenon. Software that is
currently common on non-Windows systems might be pushed out of the
market by the perceived ``industry standard'' application.
The goal should not be to encourage MS to grab an even larger market
share.
Rather, it should be to eliminate the self-propagating
domination of the market share that prevents competitors from vying
for some of that market share.
C. Microsoft should be broken into several smaller companies
It is my contention that behavioral remedies will not correct
the fundamental problems caused by Microsoft's domination of desktop
computing. My basic point is that if the settlement is to be truly
fair, then Microsoft should be put onto the same level playing field
as other companies. It must be forced to make its decisions based on
a competitive model, not a domination model.
The structural remedy should be based on the breakup of
Microsoft into several companies. There may be many possibilities,
and it must be recognized that the breakup should not make it
impossible to do business, and should not be structured such that
its implementation would be disruptive to the world of computer
users, most of whom currently use Windows and MS Office. One such
structural remedy would see Microsoft broken into different
companies specializing in specific product areas:
1. Operating system
2. Office (current MS-Office: WORD, Powerpoint etc.)
3. Internet and Enterprise services (IIS, Internet Explorer,
Outlook Express)
4..NET--;API development tools
5. Applications (graphics, multimedia, etc.)
I believe that breakup into even 2 companies does not adequately
curb the monopoly effect. It is too easy for two companies to
coordinate efforts. It is more difficult for a larger number to
coordinate. It also requires a greater effort on the customer's part
to end up buying everything from an MS company, rather than buying
some from MS, some from IBM, some from Sun, and others from another
party.
Other stipulations:
* None of these companies may use the name
``Microsoft'' or ``Windows''. Each company will
independently choose new names (eg. Gatesware, Redmond OS, IIS
Systems, .NET inc.) This makes it a little more difficult for the
``Microsoft'' product to be automatically recognized and
chosen solely for its name. It should be pointed out that MS really
can't argue that it will be hurt one bit by a name change. Name
changes in very large corporations happen all the time, especially
in cases of mergers and acquisitions (eg. Esso to Exxon, AgrEvo to
Aventis, Allegheny Airlines to USAir)
The resultant companies are not permitted free access to
resources of other former MS companies. They must license use of
software, or access to source code, on the same terms as any other
OEM, developer, or other partner. That is, if a former MS company
licenses something from another former MS company, the same
licensing terms must be made available to all interested OEMs or
developers.
MS companies are not allowed to dictate terms of inclusion or
exclusion of other 3rd party software to any OEM or developer
wishing to license products of former MS companies.
Current Microsoft corporate structure: http://www.microsoft.com/
press pass/corpprofile.asp
One might argue that a structural remedy is somehow
``unfair'' or overly punitive. However, Microsoft holds no
sacrosanct position of privilege. There is no imperative that
Microsoft must remain as a pillar of the American way. It is not
entrenched in our constitution. It is simply a company that was
successful at a certain business strategy, at the expense of the
ruin of many other companies.
D. Benefits of a structural remedy
1) It works automatically, and requires less monitoring.
2) It lets smaller companies compete piece by piece with MS,
rather than having to compete with the full bundled MS array of
products.
Today, an OEM or an IT department really makes few decisions
about what to put on their new computers. The choice of OS is a
``no-brainer'', because everybody uses Windows, and most
software is developed for Windows. MS-Office is usually bundled with
Windows, so there's no choice there. With WindowsXP, a full
multimedia package is bundled--;again no decision is made. If
bundling were eliminated, OEMs and IT departments might return to
making decisions about what kind of components best meet their
needs, rather than just ``voting the straight ticket'' for
Microsoft.
3) Business and home computer users will not be harmed by a
Microsoft breakup.
As non-Windows users like myself have demonstrated, one can work
just as easily on non-Windows platforms. Especially in the Open
Software sector, there are alternatives for most of the main types
of applications available on the Windows platform, including
applications for office tasks (word processors, spreadsheets,
drawing and presentation, calendars), multimedia (MIDI, MP3, video
etc.), Internet (web browsers, mailers, FTP, telnet etc.) At the
enterprise level, server-oriented tasks such as database management,
web serving, application serving and such are strongly represented
on alternative platforms such as Unix or IBM's AS400. As well, a
Microsoft breakup doesn't mean that Microsoft will go away. It
simply means that the consumer will have to explicitly choose
Microsoft, rather than having no choice at all.
4) The evolution of computing will not be driven by a single
computing platform.
Regardless of whether or not one believes that the Windows
platform is good or inferior, the fact remains that it is a
monolithic platform. For the average desktop user, Windows is
synonymous with computing. The more deeply intertwined the different
parts of Windows are allowed to become, the less chance there will
be for evolution of ANY part in a way other than that decreed by
Microsoft. Microsoft's current strategy is to continue evolving its
desktop model of computing to higher levels of computing, such as
enterprise file:///C/win/temp/tristens. computing or
supercomputing, where it is a very poor model. Yet, the sheer
inertia of Microsoft's market share will drive this system even into
places in which it is not an appropriate solution. A set of smaller
companies derived from Microsoft would not have the same power over
the development of computing, allowing for greater diversity, which
is key to any evolutionary process.
E. Closing remarks
Perhaps as good an argument as any from breaking up Microsoft is
because computing has become central to almost every aspect of life
in the modem world. Computing is unlike, say the oil industry, or
the food industry. No car runs on just one brand of gasoline, and
people buy a variety of foods because they like variety. When you
couple our great dependence on computers in all walks of life, with
the monolithic structure nature of desktop computing as controlled
by a single company, the result is that the company that dominates
that computing infrastructure has some degree of control on most
aspects of our modem life. The level of power wielded by Microsoft
is frightening. The fact that they had sufficient clout to cause the
US Justice Department to reverse its position on a breakup is a
chilling example of that power. The fact that Microsoft has
maintained its arrogant domination of the computer market, and been
allowed to do so with impunity, should be cause for alarm.
It is not unAmerican for any branch of government, executive,
legislative or judicial, to limit the power of a private
corporation, if that corporation is usurping powers that should
rightly be exercised by the government or by the free market. Bill
Gates was not elected by voters. The management
[[Page 28641]]
of Microsoft is not accountable to the public. The antitrust laws
were wisely enacted in recognition of the fact that non-elected
entities such as corporations could sometimes wield too much power.
It is the job of the judiciary to ensure that they are not allowed
to do so.
Comments on Civil Action No. 98-;1233 (CKK) United States
of America vs. Microsoft Corporation State of New York et al. vs.
Microsoft Corporation by Brian Fristensky
Associate Professor
Department of Plant Science
University of Manitoba
Winnipeg, MB, Canada R3T 2N2
Phone: 204-;474-;6085 FAX: 204-;474-;7528
[email protected]
http://home.cc.umanitoba.ca/frist
Judge Colleen Kollar-Kelly
[email protected]
Dear Judge Kollar-Kelly,
I wish to comment on the Microsoft Antitrust case awaiting
judgment in your court. To keep things brief, I shall focus on
points that I think have not been adequately brought out in the
proceedings of which I am aware.
Point of information:
I am an Associate Professor in the Department of Plant Science
at the University of Manitoba in Winnipeg, Canada. I have been doing
research in molecular biology for over 20 years. I was also
instrumental in the original development of software for DNA
sequence analysis, beginning in 1979. I am an active contributor to
the field of Bioinformatics, which has gained recognition recently
in its role in sequencing the human genome.
Finally, I am an American citizen.
A. The effects of Microsoft's practices, and the indirect
effects of its ``de facto standard''
1. The Microsoft culture
It has been well established in court proceedings that Microsoft
has a long history of premeditated anti competitive practices. The
main point I want to make is that the decision making process at
Microsoft is centered around leveraging the existing monopoly to
maintain the monopoly. When you have the monopoly advantage, you
choose different strategies than a company that uses different
premises for decision making, such as ``we need to be
competitive'' or ``let's make the best product possible,
and then figure out how to best market it.'' Microsoft's
decision making, as shown in documents already presented to the
court, has become entrenched in the practice of monopoly.
It is this type of mindset that allows Microsoft to treat its
customers with contempt. The most glaring example is the Mail and
News program, Outlook Express (OE). OE, through its feature of
allowing the user to directly click on any icon in an email or news
message, resulting in the launch of an application, is fundamentally
insecure. Even after repeated spread of viruses such as the
``Melissa'' virus, each time on a world-wide scale,
Microsoft has refused to eliminate this feature from OE. Similarly,
the integration of Visual Basic into applications such as MS Word
makes it possible for viruses to propagate via text documents. In
both cases, Microsoft has completely ignored security experts who
advise that these strategies are fundamentally insecure, and remain
invitations to an endless stream of viruses. Only a company with an
arrogant certainty of market domination could afford to ignore such
obvious flaws in its software.
2. The fact of monopoly results in de facto anti competitive
effects
a) ``No one was ever fired for buying Microsoft''. In
fact, this quote is based on an earlier generation quote ``No
one was ever fired for buying IBM''. People make decisions not
based upon whether a product is better, but they buy the MS product
because it is a safe, defensible decision for which they can't be
criticized.
Examples:
i) Long after NCSA Mosaic, and its successor, Netscape were
introduced, Microsoft created Internet Explorer (IE). Even though IE
was clearly an inferior product for several years, it quickly gained
market share. Further leveraging of the Windows platform resulted in
the ultimate domination of the browser market, at the expense of
Netscape.
ii) RealPlayer and other products from www.real.com virtually
created the market for browser-based multimedia. Yet, with the
bundling of Windows Media Player (WMP), this established platform is
losing ground. Why develop for RealPlayer when you can count on
everybody having WMP?
iii) At one time there was a competitive market among word
processors, spreadsheets, and drawing/presentation programs. Corel
Word Perfect, Quattro Pro, and CorelDraw/CorelPresents were viable
competitors to MS Word, MS Excell, and Powerpoint. Today, the MS
products are overwhelmingly the only products in widespread use.
In each case, the Microsoft product took over an already
existing market, not by being better, but simply, because it was
made by Microsoft. These examples illustrate the point that the de
facto aspects of the Microsoft monopoly are far more pernicious than
the deliberate anti competitive practices. Put another way,
everybody buys Microsoft because everybody has Microsoft. This
phenomenon ensures the continuation of the Microsoft monopoly. One
might call this the ``market share cycle''.
b) Why develop for other platforms when Windows is the only one
that anyone uses. Just about any software developer will tell you
that they develop for Windows because it is the dominant desktop
platform. Although virtually all computer science professors will
teach their students that software development should aim to be
platform-independent (for very good reasons), the reality of the
marketplace is such that this advice is ignored. Developers, not
surprisingly, develop for platforms with a large market share. For
most software developers, even developing for the Macintosh platform
is not worth their while, because it is such a small percentage of
the market share. The net result is that no one chooses which
platform to develop for, based on criteria such as quality of the
platform, or ease of development. There is no choice at all. They
develop for Windows.
Put another way, everybody develops for Windows because
everybody develops for Windows. The process is self-perpetuating.
c) The self-perpetuating Microsoft monopoly impedes the
evolution of computing There are alternatives to the desktop
computing model of MS-Windows. While Macintosh is the most visible
competitor, Linux is also a credible contender. As well, server-
based solutions such as Sun Microsystem's iPlanet platform (http://
www.sun.com/software/sunone/overview/platform/ ), make it possible
for both novice users and high-tech users to replace the desktop
computer entirely with a user-friendly graphic terminal, or to run
applications remotely through a browser.
The latter is a viable model as high-speed Internet connections
proliferate, especially because they eliminate the need for the user
to do any system administration, and insulate the user from the
hardware obsolescence, and allow the user to access their computer
files and applications from anywhere in the world. Such alternative
solutions are in fact used by a very small number of users. They are
only slowly gaining ground due to the Microsoft monopoly. The users
of these alternative platforms would all argue that they do so
because these platforms are superior to the Windows platform.
Whether any or all of these alternatives is actually superior is
moot. A putatively-superior computing platform simply can not
compete with the de facto Microsoft standard.
d) The Microsoft monopoly has a negative effect on the quality
of alternative systems. Even those of us who have chosen to use
systems other than Microsoft Windows feel the negative impact of the
monopoly. In my own case, I have operated my research laboratory,
and performed all my teaching duties, almost exclusively on the Sun
Unix system. Detailed examples can be found at http://
home.cc.umanitoba.ca/psgendb/nc/. At home, my family and I
exclusively use Linux.
While the members of my lab group, myself, and my students have
often been ahead of the curve in utilizing networked computing
resources, there have been a number of stumbling blocks resulting
from the Microsoft monopoly. Probably the greatest problem is the
fact that the choice of applications available on the Sun Unix
system or Linux is much smaller than on Windows, due to the much
smaller desktop market share of these systems. Again, developers
won't write for these systems because the market share is small, and
the market share stays small because the applications aren't
available. When new hardware devices are marketed (eg. CD-ROM
drives, printers, video cards etc.) the manufacturers seldom write
drivers for non-Microsoft platforms. At the same time, they often
refuse to make their specifications public, forcing the Linux
community to reverse engineer new models in order to write device
drivers.
The market share cycle also influences such fundamental things
as the ability to purchase alternative systems. All computer stores
sell computers with MS Windows preloaded. Only a small number of
vendors will sell Linux pre-loaded, even though Linux is freely
available. In many cases, a person wishing to run Linux might
actually have to buy a Windows machine, thus paying for Windows, and
then erase the hard drive
[[Page 28642]]
and replace it with Linux. This phenomenon is sometimes referred to
as the ``Microsoft Tax''. As well, because the user has to
take the extra step of installing Linux, Linux is falsely perceived
as being less user friendly. This would not be the case if the
consumer had a choice of buying a pre-installed Linux system. flawed
operating system maintaining control of the direction of computing,
even when better alternatives exist.
B. A behavioral remedy is inadequate because:
* It does not break the market share cycle. As long as Microsoft
remains the ``1 stop shopping'' choice for all software
needs, no alternative platform, whatever its merits, can compete.
Even worse, as the Windows platform continues to scale to midrange
servers, that vertical integration will make the Windows platform
even harder for IT decision makers to avoid.
* It guarantees endless litigation. MS has managed to make a
career out of doing what it wants anyway, while tying up cases in
courts for years while competitors flounder.
* It still leaves the MS anti competitive culture intact. The
Microsoft corporate culture, as the company is now structured, is
oriented toward perpetuating the monopoly. As long as Microsoft
remains intact, the culture and attitudes of its employees will be
perpetuated.
* One of the recommendations of the joint DO J/Microsoft
settlement released in September is that Microsoft should be
required to make its software available on other operating systems
besides Windows. This might actually result in a further domination
of the desktop market, because, due to the ``No one ever got
fired for buying Microsoft'' phenomenon. Software that is
currently common on non-Windows systems might be pushed out of the
market by the perceived ``industry standard'' application.
The goal should not be to encourage MS to grab an even larger market
share.
Rather, it should be to eliminate the self-propagating
domination of the market share that prevents competitors from vying
for some of that market share.
C. :Microsoft should be broken into several smaller companies
It is my contention that behavioral remedies will not correct
the fundamental problems caused by Microsoft's domination of desktop
computing. My basic point is that if the settlement is to be truly
fair, then Microsoft should be put onto the same level playing field
as other companies. It must be forced to make its decisions based on
a competitive model, not a domination model.
The structural remedy should be based on the breakup of
Microsoft into several companies. There may be many possibilities,
and it must be recognized that the breakup should not make it
impossible to do business, and should not be structured such that
its implementation would be disruptive to the world of computer
users, most of whom currently use Windows and MS Office. One such
structural remedy would see Microsoft broken into different
companies specializing in specific product areas:
1. Operating system
2. Office (current MS-Office: WORD, Powerpoint etc.)
3. Internet and Enterprise services (IIS, Internet Explorer,
Outlook Express)
4..NET--;API development tools
5. Applications (graphics, multimedia, etc.)
I believe that breakup into even 2 companies does not adequately
curb the monopoly effect. It is too easy for two companies to
coordinate efforts. It is more difficult for a larger number to
coordinate. It also requires a greater effort on the customer's part
to end up buying everything from an MS company, rather than buying
some from MS, some from IBM, some from Sun, and others from another
party.
Other stipulations:
* None of these companies may use the name
``Microsoft'' or ``Windows''. Each company will
independently choose new names (eg. Gatesware, Redmond OS, IIS
Systems, .NET inc.) This makes it a little more difficult for the
``Microsoft'' product to be automatically recognized and
chosen solely for its name. It should be pointed out that MS really
can't argue that it will be hurt one bit by a name change. Name
changes in very large corporations happen all the time, especially
in cases of mergers and acquisitions (eg. Esso to Exxon, AgrEvo to
Aventis, Allegheny Airlines to USAir)
The resultant companies are not permitted free access to
resources of other former MS companies. They must license use of
software, or access to source code, on the same terms as any other
OEM, developer, or other partner. That is, if a former MS company
licenses something from another former MS company, the same
licensing terms must be made available to all interested OEMs or
developers.
MS companies are not allowed to dictate terms of inclusion or
exclusion of other 3rd party software to any OEM or developer
wishing to license products of former MS companies.
Current Microsoft corporate structure: http://www.microsoft.com/
press pass/corpprofile.asp
One might argue that a structural remedy is somehow
``unfair'' or overly punitive. However, Microsoft holds no
sacrosanct position of privilege. There is no imperative that
Microsoft must remain as a pillar of the American way. It is not
entrenched in our constitution. It is simply a company that was
successful at a certain business strategy, at the expense of the
ruin of many other companies.
D. Benefits of a structural remedy
1) It works automatically, and requires less monitoring.
2) It lets smaller companies compete piece by piece with MS,
rather than having to compete with the full bundled MS array of
products.
Today, an OEM or an IT department really makes few decisions
about what to put on their new computers. The choice of OS is a
``no-brainer'', because everybody uses Windows, and most
software is developed for Windows. MS-Office is usually bundled with
Windows, so there's no choice there. With WindowsXP, a full
multimedia package is bundled--;again no decision is made. If
bundling were eliminated, OEMs and IT departments might return to
making decisions about what kind of components best meet their
needs, rather than just ``voting the straight ticket'' for
Microsoft.
3) Business and home computer users will not be harmed by a
Microsoft breakup.
As non-Windows users like myself have demonstrated, one can work
just as easily on non-Windows platforms. Especially in the Open
Software sector, there are alternatives for most of the main types
of applications available on the Windows platform, including
applications for office tasks (word processors, spreadsheets,
drawing and presentation, calendars), multimedia (MIDI, MP3, video
etc.), Internet (web browsers, mailers, FTP, telnet etc.) At the
enterprise level, server-oriented tasks such as database management,
web serving, application serving and such are strongly represented
on alternative platforms such as Unix or IBM's AS400. As well, a
Microsoft breakup doesn't mean that Microsoft will go away. It
simply means that the consumer will have to explicitly choose
Microsoft, rather than having no choice at all.
4) The evolution of computing will not be driven by a single
computing platform.
Regardless of whether or not one believes that the Windows
platform is good or inferior, the fact remains that it is a
monolithic platform. For the average desktop user, Windows is
synonymous with computing. The more deeply intertwined the different
parts of Windows are allowed to become, the less chance there will
be for evolution of ANY part in a way other than that decreed by
Microsoft. Microsoft's current strategy is to continue evolving its
desktop model of computing to higher levels of computing, such as
enterprise computing or supercomputing, where it is a very poor
model. Yet, the sheer inertia of Microsoft's market share will drive
this system even into places in which it is not an appropriate
solution. A set of smaller companies derived from Microsoft would
not have the same power over the development of computing, allowing
for greater diversity, which is key to any evolutionary process.
E. Closing remarks
Perhaps as good an argument as any from breaking up Microsoft is
because computing has become central to almost every aspect of life
in the modern world. Computing is unlike, say the oil industry, or
the food industry. No car runs on just one brand of gasoline, and
people buy a variety of foods because they like variety. When you
couple our great dependence on computers in all walks of life, with
the monolithic structure nature of desktop computing as controlled
by a single company, the result is that the company that dominates
that computing infrastructure has some degree of control on most
aspects of our modern life. The level of power wielded by Microsoft
is frightening. The fact that they had sufficient clout to cause the
US Justice Department to reverse its position on a breakup is a
chilling example of that power. The fact that Microsoft has
maintained its arrogant domination of the computer market, and been
allowed to do so with impunity, should be cause for alarm.
It is not unAmerican for any branch of government, executive,
legislative or judicial, to limit the power of a private
corporation,
[[Page 28643]]
if that corporation is usurping powers that should rightly be
exercised by the government or by the free market. Bill Gates was
not elected by voters. The management of Microsoft is not
accountable to the public. The antitrust laws were wisely enacted in
recognition of the fact that non-elected entities such as
corporations could sometimes wield too much power. It is the job of
the judiciary to ensure that they are not allowed to do so.
MTC-00029426
From: James R. Bergman
To: Microsoft ATR
Date: 1/28/02 11:54pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse:
This is to advise you that I strongly believe that the terms of
the proposed settlement--;which have met or gone beyond the
findings of the Court of Appeals ruling--;are reasonable and
fair to all parties involved. This settlement represents the best
opportunity for Microsoft and the industry to move forward.
I say this with a 30-year successful business career behind me
and, hopefully, even greater success ahead. But should this
settlement not be finalized and a harsher penalty imposed on
Microsoft, I know, not believe, that it will affect my business and
most all general, old-economy businesses in a severely negative and
expensive way. Similarly, the so-called new economy industries will
not benefit though those that are envious of Microsoft's success and
those who cannot keep up with Microsoft's efficient execution of its
business plan may feel differently.
I strongly request that you support this settlement to the
greatest degree possible and do all things available to you to
assure its being finalized. As both a business owner and home user
who has and does use many software programs as well as spends quite
a few hours a week on the Internet, I am grateful for all the many
wonderful things that Microsoft has accomplished and have always
made available to me at reasonable and fair prices that have aided
me in my business and family life. Please feel free to contact me if
you wish. Should you be speaking to Joel Klein, please say
``Hi'' from an old fraternity brother (we were in Alpha
Epsilon Pi, Class of 1967, Columbia College of Columbia University,
NYC).
Sincerely,
James R. Bergman
910 S. Delhi Street
Philadelphia, PA 19147-;3810
Phone:(215) 922-;9145
Fax:(215) 922-;4803
Mobile:(215) 284-;1676
E-mail:[email protected]
MTC-00029427
From: JVMiller23
To: Microsoft ATR
Date: 1/28/02 11:53pm
Subject: Microsoft Settlement
James V. Miller
P.O.Box 12369
Mill Creek, Wa 98082
January 26, 2002
Attorney General John Ashcroft
Us Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I am writing you today to inform you of my position regarding
the Microsoft antitrust dispute. I support Microsoft in this dispute
and feel that the litigation that has gone on is costly and a waste
of resources. I support the Microsoft settlement reached in
November, and I sincerely hope there will be no further action
against Microsoft at the federal level.
This settlement was reached after extensive negotiations.
Microsoft has agreed to all terms of this agreement, including terms
that extend well beyond the original issues of this lawsuit, all for
the sake of wrapping it up. Under this agreement, Microsoft has
agreed to grant computer makers broad new rights to configure
Windows to promote non-Microsoft software programs that compete with
programs included within Windows. Microsoft has also agreed to
license its Window operating system products to the 20 largest
computer makers. This settlement will benefit companies attempting
to compete.
Most importantly, this settlement will help boost our lagging
economy and will benefit consumers. Microsoft should be allowed to
devote its resources and talent to designing innovative products,
rather than litigation. Thank you for your support.
Sincerely,
MTC-00029428
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/28/02 11:54pm
Subject: MIcrosoft Case
Jasper Shau
Eighth Grade
I think that Microsoft should be allowed to settle. Because
Microsoft used itswindows system to distribute Internet explorer, it
would a kind of monopoly. However, Microsoft does not make any money
off the Internet explorer browser. Netscape is being destroyed
because they make their money off their browser. If Microsoft pays
enough money, and if the money goes to Netscape, it should be
allowed to settle.Microsoft had already made several concessions
???We kept making concessions, and the government kept coming back
with unreasonable demands, wanting us toinstall Netscape for
them,??? Gates said. ???It was like hearing ???Netscape this,
Netscape that,??? all the time.??? Obviously the federal government
is pushing Microsoft too hard. Though if Microsoft monopolizes the
browser they may charge very high fees for using it,the government
would not allow them then. Even so, Microsoft says that theyhave no
intention of doing so: ``'' Gates says. ``In no way
are we eliminating choice.'' He also bristles at the notion
that Microsoft wants to turn theInternet into its personal toll
road. ``We'll get our revenue from selling great
software.'' In the Pac-bell incident, Pac-bell was split
because it had amonopoly of basically the entire market. That is one
extreme past example.
CC:ASKDOJ
MTC-00029429
From: Mike Edwards
To: Microsoft ATR
Date: 1/28/02 11:55pm
Subject: Microsoft Settlement
Microsoft is a monopoly. That is the only way I can find to
describe a company who, for years, has concentrated on squashing
competitors rather than improving their shoddy products.
I have used Microsoft products in various capacities for many
years--;starting with MS-DOS 2.10 on a home PC to Windows NT 4 /
Windows 2000 in a work environment (as a system administrator, no
less). All versions of Microsoft Windows I have used, starting with
3.0, have experienced severe reliability problems--;and these
problems have grown over time. The rest of their software seems to
follow this model.
In stark contrast, there have been quite a few companies over
the years who have tried to improve upon the deficencies in
Microsoft's products, only to be bought out or forced out of the
market by unsavory business practices (bundling, etc.), thereby
leaving the market barren of competetors. Netscape is only the most
recent example of predatory practices that Microsoft has been using
to boost their position for years.
Microsoft is fond of claiming they ``innovate''. I
don't think Microsoft has innovated a single thing in their entire
existence, instead choosing to buy or steal technology belonging to
others. So much for innovation.
Please, don't let this settlement go through. It will just
validate Microsoft's position of providing the worst products
possible. Given their history of unreliable software with an amazing
number of security holes, I would think that this is the last thing
you'd want to do.
Mike Edwards
MTC-00029430
From: Joe Bustamante
To: Microsoft ATR
Date: 1/28/02 11:56pm
Subject: Microsoft Settlement
As I understand the meaning and nature of the Tunney Act
statutory process, its principle goal is to ensure that the people
who are invariably the principle victims of all antitrust
violations, that is to say the general public, have a voice in
determining what is and is not in their own best interests. It seems
self evident that when deciding how to remedy violations of law
which harm the general public, the first principle of guarding the
public interest should be to minimize the recurrence of violations
by making certain the consequences to the violator always outweigh
the rewards. It is unavailing to resolve the case if the violator is
allowed to profit from his misdeeds in any fashion, since this only
encourages others to show even greater contempt for the law. It is
similarly fruitless to go to great expense proving in court the
facts of eight such violations and then allow the violator to keep
[[Page 28644]]
the rewards of them all, and even continue committing one or more.
Such seems to be the case in this matter, the United States v.
Microsoft, Civil Action No. 98-;1232 (CKK).
After carefully reading and researching the findings of fact and
conclusions of law of the District Court, as well as the unanimous
opinion of the Circuit Court of Appeals, it is apparent that the
United States Department of Justice, assisted by the attorneys
general of several of the States, made a very compelling and
conclusive case to establish that Microsoft Corporation had engaged
in an illegal campaign of antitrust violations in order to
strengthen and defend their monopoly in PC operating system
software.
The District Court ruled firmly that Microsoft had committed a
large number of violations, and the Court of Appeals unanimously
upheld eight of those. In order to analyze the effectiveness of the
remedy, the first thing we must do is ensure that Microsoft is not
allowed to continue or profit from any of the eight distinct
violations identified by the appellate court. I will begin this
analysis with a list of the nine violations as they were expressed
in X sections of the appeals court's opinion, along with a brief
quote of the appeals court opinion regarding each distinct violation
(I preserve the heading numbers used by the court, omitting those
which were overturned or remanded).
1. Licenses Issued to Original Equipment
Manufacturers--;``In sum, we hold that with the exception
of the one restriction prohibiting automatically launched
alternative interfaces, all the OEM license restrictions at issue
represent uses of Microsoft's market power to protect its monopoly,
unredeemed by any legitimate justification. The restrictions
therefore violate s 2 of the Sherman Act.
2. Integration of IE and Windows--;``Accordingly, we
hold that Microsoft's exclusion of IE from the Add/Remove Programs
utility and its commingling of browser and operating system code
constitute exclusionary conduct, in violation of s 2.''
3. Agreements with Internet Access
Providers--;``Accordingly, we affirm the District Court's
decision holding that Microsoft's exclusive contracts with IAPs are
exclusionary devices, in violation of s 2 of the Sherman Act.''
4. Dealings with Internet Content Providers, Independent
Software Vendors, and Apple Computer--;``Microsoft having
offered no procompetitive justification for its exclusive dealing
arrangements with the ISVs, we hold that those arrangements violate
s 2 of the Sherman Act.''--;and--;``Accordingly,
we hold that the exclusive deal with Apple is exclusionary, in
violation of s 2 of the Sherman Act.''
5. Java--;``Because the cumulative effect of the deals
is anticompetitive and because Microsoft has no procompetitive
justification for them, we hold that the provisions in the First
Wave Agreements requiring use of Microsoft's JVM as the default are
exclusionary, in violation of the Sherman
Act.''--;and--;``Therefore we affirm the
conclusion that Microsoft's threats to Intel were exclusionary, in
violation of of the Sherman Act.''--;``Microsoft's
conduct related to its Java developer tools served to protect its
monopoly of the operating system in a manner not attributable either
to the superiority of the operating system or to the acumen of its
makers, and therefore was anticompetitive.
Unsurprisingly, Microsoft offers no procompetitive explanation
for its campaign to deceive developers. Accordingly, we conclude
this conduct is exclusionary, in violation of s 2 of the Sherman
Act.''
Semantically broken, these quotations uphold nine distinct acts
as violations of the Sherman Act:
1. OEM license restrictions which prohibited many actions which
might promote Netscape software in Microsoft's dominated market,
excepting one which prohibited automatically launching alternative
interfaces.
2. Exclusion of Internet Explorer from the Add/Remove Programs
utility to force users to accept IE willy-nilly.
3. Commingling of brower and operting system code to further
force users to accept IE willy-nilly.
4. Microsoft's exclusive contracts with Internet Access
Providers to exlude Netscape from those distribution channels.
5. Microsoft's similar (to #4) dealings with ISV and ICPs to
exclude Netscape from still other distribution channels.
6. Microsoft's exclusive dealings with Apple Computer to limit
Netscape distribution for MacOS.
7. Microsoft's First Wave Agreements requiring the use of
Microsoft's JVM.
8. Microsoft's threatening of Intel, which led to Intel
abandoning nascent technologies related to Java which they had
already invested considerable effort in researching.
9. Microsoft's campaign to deceive their own customers in order
to trick them into writing Microsoft dependent applications when
they thought they were writing cross platform Java applications.
After studying the Proposed Final Judgement in this case between
the United States and Microsoft, I see that points 3 and 9 are
completely unaddressed, and indeed in case 3 Microsoft is being
given tacit government approval to continue and extend the practice
of commingling operating system code with the code of any
application they wish to dominate. Indeed Microsoft has already done
this to some measure in their latest operating system release,
Windows XP. They are not only continuing to commingle browser and
operating system to make IE inextricable from Windows, but are
extending the practice to now encompass code previously associated
with multimedia authoring and editing. How does the Department of
Justice explain this apparent endorsement of a practice ruled
illegal by a United States Court of Appeals?
As for the other 7 violations, they are only imperfectly
addressed. Virtually every restriction is laden with elaborate and
ofttimes contradictory exceptions. Overriding all of these is the
stipulation that Microsoft has sole authority to define what is and
is not the operating system. This is carte blanche for Microsoft to
continue their illegal practice of extinguishing nascent
technologies through ``integration''. This settlement is
going to require constant referral back to the court to re-explain
matters which were already clearly stated by the Court of Appeals.
In short, this agreement encourages Microsoft to continue and
expand on their illegal practices and encourages others in like
circumstances to do the same. It is totally contrary to the public
interest, in my opinion.
Jose Bustamante
Austin, TX 78729
[email protected]
MTC-00029432
From: Joe Byrd
To: Microsoft ATR
Date: 1/28/02 11:57pm
Subject: Microsoft Filing
The attached document is for the Microsoft case.
If you have any questions, please contact, Joe Byrd at
918-;453-;8100. Thank you
Email Address: [email protected]
Subject: Microsoft Settlement.
The National Native American Chamber of Commerce represents
Native American and other minority businesses trying to compete in
the New Economy. However, with monopolistic players and absurd
settlements such as this one, we will continue to be excluded. That
is why we are glad to witness that some state Attorneys General,
including California's Bill Lockyer, are resisting this regrettable
deal and asking the courts to impose a real solution. They deserve
our support.
The proposed settlement of the Microsoft antitrust case is
little more than a collection of loopholes that amounts to tacit
approval for the company's history of mistreating its competitors.
What is more, much of the criticism of those opposing the settlement
misses three points in particular. First, the proposed settlement
does not prohibit Microsoft from bundling its software and
tightening its grip on Internet applications--;including MSN
portal, instant messaging, e-mail, and streaming-media applications.
Second, yes, Microsoft must release some programming code to
competitors, but only after it has developed its own products. And,
third and finally, the independent watchdog group called for in the
settlement is all bark and no bite--;it has no teeth for
enforcement.
We, the taxpayers, suffer in the long run. Other antitrust
violators monitoring the outcome of this case will have a blueprint
furnished for them detailing a course of action that will allow them
to skirt out legal system. It is a pleasure to side with the state
attorney general in admonishing what Justice Department attorneys
hide behind in this farce, ``the substantial likelihood that
Microsoft would avail itself of all opportunities'' to appeal.
Bill Lockyer is right to reject a settlement would essentially
allow Microsoft to set its own rules and terms for complying with
that settlement. Such an outcome is unacceptable--;Microsoft has
played ``fast and loose'' with U.S. antitrust law over and
over through the years and has been found guilty in a number of
jurisdictions of abusing its power.
Sincerely
Robert Ferrell
[[Page 28645]]
5230 Pacific Concourse Drive
Suite 20
Los Angeles, CA 90045
Email Address: [email protected]
Subject: Microsoft Settlement.
The National Native American Chamber of Commerce represents
Native American and other minority businesses trying to compete in
the New Economy. However, with monopolistic players and absurd
settlements such as this one, we will continue to be excluded. That
is why we are glad to witness that some state Attorneys General,
including California's Bill Lockyer, are resisting this regrettable
deal and asking the courts to impose a real solution. They deserve
our support.
The proposed settlement of the Microsoft antitrust case is
little more than a collection of loopholes that amounts to tacit
approval for the company's history of mistreating its competitors.
What is more, much of the criticism of those opposing the settlement
misses three points in particular.
First, the proposed settlement does not prohibit Microsoft from
bundling its software and tightening its grip on Internet
applications--;including MSN portal, instant messaging, e-mail,
and streaming-media applications. Second, yes, Microsoft must
release some programming code to competitors, but only after it has
developed its own products. And, third and finally, the independent
watchdog group called for in the settlement is all bark and no
bite--;it has no teeth for enforcement.
We, the taxpayers, suffer in the long run. Other antitrust
violators monitoring the outcome of this case will have a blueprint
furnished for them detailing a course of action that will allow them
to skirt out legal system. It is a pleasure to side with the state
attorney general in admonishing what Justice Department attorneys
hide behind in this farce, ``the substantial likelihood that
Microsoft would avail itself of all opportunities'' to appeal.
Bill Lockyer is right to reject a settlement would essentially
allow Microsoft to set its own rules and terms for complying with
that settlement. Such an outcome is unacceptable--;Microsoft has
played ``fast and loose'' with U.S. antitrust law over and
over through the years and has been found guilty in a number of
jurisdictions of abusing its power.
Sincerely
Robert Ferrell
5230 Pacific Concourse Drive
Suite 20
Los Angeles, CA 90045
MTC-00029433
From: Linda Starnes
To: Microsoft ATR
Date: 1/28/02 11:59pm
Subject: Microsoft Settlement
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I wish to express my happiness upon hearing of the Attorney
General's decision to end the Justice Department's antitrust lawsuit
against Microsoft. However, I am not happy about the fact that it
took the government three years to end its costly, taxpayer-funded
lawsuit. Under the agreement, computer manufacturers were granted
new rights to configure systems with access to various Windows
features. Microsoft must design future versions of Windows to make
it easier to install non-Microsoft software and to disclose
information about certain internal interfaces in Windows.
The company made many more compromises in this agreement. I
don't see a need for any future federal litigation against Microsoft
beyond this agreement.
Sincerely,
Linda Starnes
33648 7th Place Southwest
Federal Way, WA 98023
MTC-00029434
From: Michael Vengrow
To: Microsoft ATR
Date: 1/29/02 12:00am
Subject: Microsoft Settlement
Dear Sir,
I would like to respectfully submit my comments on the Microsoft
Settlement. I believe that the key issue in this case is whether or
not it is possible for a company to infringe on the rights of
others, e.g., customers, competitors, distributors, etc, simply by
offering products or services for sale under certain conditions.
Microsoft's competitors have alleged that Microsoft has constrained
freedom of trade in the software industry by using
``unfair'' practices, such as obligating distributors of
Microsoft programs to include certain features with Windows or to
agree to certain licensing arrangements with Microsoft. I submit
that offering products under such conditions do not constitute a
breach of anyone's rights, neither distributors nor customers, since
no one has been forced to deal with Microsoft. The only way to
actually infringe on someone's rights are to initiate physical force
against them or to commit an act of fraud against them. The fact
that Microsoft has outcompeted its competitors, without a single
alleged instance of force or fraud, and that its competitors are now
crying ``Not fair!!!
Not fair!! Not fair!!!'', is no reason for the government
to attack Microsoft with a lawsuit. Please keep in mind that the
only way Microsoft has been successful during its entire history is
to offer either better products or better services or lower prices.
No one has been coerced or defrauded by Microsoft. Ever. On the
contrary, the public (myself emphatically included) has enormously
benefitted from the tremendous increase in efficiency of daily
tasks, in both business and personal life, which Microsoft's
products have made possible. Given these facts, I urge the court to
not punish Microsoft for doing what the best of America's
entrepeneur's have always done--;bring to market products and
services that improve people's lives.
Thank you for your attention.
Michael Vengrow
San Diego, CA
MTC-00029435
From: Timothy L Smith
To: Microsoft Settlement
Date: 1/28/02 11:54pm
Subject: Microsoft Settlement
Timothy L Smith
1855 Travis Rd.
West Palm Beach, FL 33406-;5260
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Timothy L. Smith
MTC-00029436
From: Bryan Hoskins
To: Microsoft ATR
Date: 1/28/02 11:58pm
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
I respectfully submit my opinion on the agreement, the terms of
which I believe to be in the best public interest.
While the provisions of the agreement are stringent, I believe
the terms-which have met, or gone beyond the findings of the Court
of Appeals ruling-are reasonable and fair to all parties involved.
This settlement represents the best opportunity for the industry to
move forward. Both our nation's government and our nation's business
have more important matters at hand.
Sincerely,
William B. Hoskins
Sugar Land, TX
MTC-00029437
From: Ken Wronkiewicz
To: Microsoft ATR
Date: 1/29/02 12:00am
Subject: Microsoft Settlement
I do not support the proposed settlement with Microsoft. It is
too loose on Microsoft
[[Page 28646]]
and will not ensure a free market. In order to remedy Microsoft's
behaviour, it is necessary to change the way that Microsoft does
business. In the statements of fact, it is shown that Microsoft has
knowingly broken the law repetedly. Stronger measures are necessary.
I support Dan Kegel's open letter, as he is far more elequent
than I.
Ken``Wirehead''Wronkiewicz--;[email protected]
http://www.wirewd.com/wh/
MTC-00029438
From: Phil Collins
To: Microsoft ATR
Date: 1/29/02 12:00am
Subject: Settlement--;Energy
A commentator on the comuter technoloyg scene, Dave Coursey of
http://www.zdnet.com/anchordesk, suggested that in the Microsoft
settlement that has been proposed Microsoft should pay a mult-
billion dollar fine as part of the settlement.
The condition for approval of the settlement is that it is in
the best interests of the public of America. In the private
antitrust case before Judge Motz in Baltimore the proposed
settlement would have resulted in an estimated $1 billion for poor
schools--;which was totally unrelated to the alleged wrongs
complained against Microsoft, but was presented as in the public
interest.
The most pressing need facing America is this cnetury is
sustainable energy to replace the oil supplies of America and the
world, which are dwindling, and could be substantially depleted if
other sources are not used intead. America needs oil for self-
defense--;planes, tanks and ships travel on fuels derived from
oil. As we know too well after the September 11, 2001, attacks, the
need of continuing self-defense of America is great. World oil
resources are much greater than America's oil, (and I include gas
always when I say oil) resourcs.
IF Microsoft is made to pay billions, as Dave Coursey of ZDnet's
Anchor Desk suggests, the billions should go to research in
sustainable energy, particularly, that using the principles
discovery by Einstein, adn for which he was awarded teh Nobel Prize,
including solar cells using the photo-electric effects, fusion
energy, and improvements in fission energy. This will be in the best
interest of America.
MTC-00029439
From: Darrell Clemons
To: Microsoft Settlement
Date: 1/28/02 11:57pm
Subject: Microsoft Settlement
Darrell Clemons
929 cr 4804
Copperas Cove , Tx 76522
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Darrell R Clemons
MTC-00029440
From: Marc McEachern
To: Microsoft Settlement
Date: 1/28/02 11:56pm
Subject: Microsoft Settlement
Marc McEachern
7707 Terry Drive
La Vista, NE 68128
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Marc McEachern
MTC-00029441
From: Richard Barton
To: Microsoft Settlement
Date: 1/28/02 11:56pm
Subject: Microsoft Settlement
Richard Barton
515 Pine St.
Brookings, OR 97415
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Richard L Barton
MTC-00029442
From: Edward Watson
To: Microsoft Settlement
Date: 1/28/02 11:56pm
Subject: Microsoft Settlement
Edward Watson
7752 E. Camelback Road
Scottsdale, AZ 85251-;2228
January 28, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
[[Page 28647]]
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies. Thank you for
this opportunity to share my views.
Sincerely,
Edward A. Watson
MTC-00029443
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:04am
Subject: Netscape sues Microsoft
Netscape sues Microsoft
Netscape a company backed by AOL time Warner sews Microsoft on
account of illegal bundling. AOL is more interested in dominating
the communications industry than in Microsoft pay money. If we take
a close look at what AOL already owns like HBO, Time, Warner
Brothers, New line cinema we notice that they do not dominate in
communications, and that all P.C. already come with Microsoft , so
really there is no point in using AOL when you already have
Microsoft. They plan to sue Microsoft so that bundling will stop and
sometime in the future they will have a chance in the software
field.
This case is really about AOL securing it???s place in the
future. Truth be told no one needs AOL or Netscape. Microsoft is
just trying to make Internet use more accessible.
Carnegy and his ability to make steel faster and more accessible
to railroads did the same thing that Microsoft has done with the
Internet. Rockefeller once said that , ???Much that one man cannot
do alone two can do together.??? Windows and Microsoft have done
together what one man alone cannot do.
Bundling may be found illegal but Microsoft intentions are just
in wanting to make the Internet more accessible to the public.
MTC-00029444
From: paddona
To: Microsoft ATR
Date: 1/29/02 12:03am
Subject: Microsoft Settlement
Dear Sirs:
I'm urging you to accept the settlement.
Thank you
Peter Addona Jr.
MTC-00029445
From: Virginia Gibson
To: Microsoft Settlement
Date: 1/28/02 11:59pm
Subject: Microsoft Settlement
Virginia Gibson
3221 Queensgate Way
Mt. Pleasant, SC 29466
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Virginia P. Gibson
MTC-00029446
From: Allen Kay
To: Microsoft ATR
Date: 1/29/02 12:05am
Subject: Microsoft Settlement
Just want to let you know that I strongly support the Microsoft
& DOJ settlement agreement. Continuing this court ordeal is bad
for the economy and bad for the continuation of technological
revolution.
Furthermore, it is important for US companies to maintain the
competitive edge we currently enjoy. US government's resources, made
possible by the tax payers, should not be used to punish successful
US technology companies. It should instead be used to protect its
citizens from likes of Enron debacle. Thanks for taking time reading
my input.
MTC-00029448
From: Joyce Korn
To: Microsoft ATR
Date: 1/29/02 12:11am
Subject: Re: Microsoft Settlement
Attention: Renata B./ Hesse, Antitrust Division
Dear Ms. Hesse,
Having reviewed the Microsoft settlement, I feel that it is just
and reasonable and should be acceptable to the District Court as
stated in the appeal.
Sincerely,
Joyce D.Korn
([email protected])
CC:[email protected]@
inetgw
MTC-00029449
From: Jerry Dowdy
To: Microsoft Settlement
Date: 1/29/02 12:04am
Subject: Microsoft Settlement
Jerry Dowdy
204 Rolling Hills Blvd
Florence, MS 39073
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Jerry Dowdy
MTC-00029450
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:09am
Subject: Microsoft Settlement
O.K. Justice, I believe this Microsoft vendetta has dragged on
long enough. Millions of TAXPAYER dollars have been wasted in this
Clinton era, baseless and ludicrous action. It is time to uphold the
Microsoft settlement and return to some semblance of sanity.
Jim Kenfield
Elizabeth, CO.
MTC-00029451
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:10am
Subject: microsoft settlement
I have been following the microsoft trials. It surprise me that
the justice department gave up without any worthwhile penalties for
Microsoft. They should be the lst ones to give up especially after
Mircosoft was found guilty of illegat conduct.
I thought after finding Mircosoft quilty that the release of
Windows XP should have been stopped. It contains even more bundling
of products. Microsoft can afford to put more ``Free''
products out as long as it elimates the competition!
Why should a software developer want to spent the time and
energy on a product when Mircosot forces the computer manufactuer to
use only their programs. Even if a better product was produced it
would never see the light of day, as Microsoft has been given a big
head start by their strong arm tatics.
[[Page 28648]]
Some people think that getting the bundle programs free is a
good thing. This is good only for Microsoft because they just add it
to the price of the basic operating system.
Gerald W Bryant
Campbell,Ca.
MTC-00029452
From: Mark Stewart
To: Microsoft ATR
Date: 1/29/02 12:10am
Subject: Microsoft Settlement
3043 Pawlings Ford Road
Lansdale, PA 19446
January 27, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am a computer technology manager and obviously, quite familiar
with the recent settlement between Microsoft and the Department of
Justice. I am writing to ask that you give your approval to this
agreement and allow us to move on. This agreement was reached after
very arduous negotiations, resulting in what I believe to be a fair
and equitable agreement. I firmly believe that the original lawsuit
is what precipitated the downfall of the economy, and further
litigation will only continue to hamper our economic recovery.
Because I am in the industry, I believe the supposed monopoly of
the market by Microsoft will disappear. Microsoft's dominance of the
market was with the desktop; but with the appearance of the
Internet, Microsoft will have to struggle to maintain its dominance
of the market. Further litigation will only hamper any possible
innovation by Microsoft, which will not only be Microsoft's loss,
but ours as well. Bill Gates, through Microsoft, has taken us much
further than we would have gone without him. We are depriving
ourselves of a very talented, creative force merely to satisfy the
whining of rivals who cannot compete. The market place is its own
regulator, particularly in technology as it moves so quickly.
Microsoft has satisfied many of the Department of Justice's
demands. Microsoft has agreed to open up to third party developers
more of its copyrighted code, to aid in the development of third
party programs; Microsoft has agreed to internal interface
disclosure; Microsoft has agreed to a uniform price list; Microsoft
has agreed to a technical committee to oversee future adherence.
This is more than fair.
I urge you to give your approval to this agreement and not give
in to the pettiness that is so apparent.
cc: Senator Rick Santorum
Sincerely,
Mark Stewart
MTC-00029453
From: CJ Neil Kvasnak
To: Microsoft ATR
Date: 1/29/02 12:11am
Subject: Microsoft
I trust that you will support this settlement with Microsoft. I
am pleased this settlement was reached. Please settle this conflict
now. It is not fair to punish Microsoft for it's success
Sincerely,
C.J. Kvasnak,
4802 Otter Creek Lane,
Ponte Vedra Beach, Fl. 32082 .
MTC-00029454
From: [email protected];inetgw
To: Microsoft ATR
Date: 1/29/02 12:11am
Subject: United States Department of Justice antitrust lawsuit
against Microsoft Corporat
I support Iowa's Attorney General Tom Miller's work on the
Microsoft antitrust case. Along with the majority of voters in our
state, I have and will continue to retain his counsel in acting to
protect the best interests of consumers of Iowa. Promoting a
competitive environment among companies producing software will be
of long-term benefit to everyone, and rejecting a settlement
agreement that is premature is the right thing to do. Justice will
not be the result of a hasty decision in this incredibly complex and
high-stakes arena. If the proposed agreement is fair and is in fact
in the best solution to the dangers posed by a potentially unfair
competition situation, it will stand the test of time and the
detailed analysis of Mr. Miller and his associates...which should
not be curtailed until their case has been fully developed and
considered.
David Huston,
1512 48th Street,
Des Moines, IA 50311
CC:tormistcommat;ag.ia.us@inetgw
MTC-00029455
From: Dave and Betty Dunham
To: Microsoft ATR
Date: 1/29/02 12:13am
Subject: Microsoft Settlement
David & Betty Dunham
2077 Dague Rd
Walla Walla, Wa. 99362
509-;525-;4076
Dear Mr Ashcroft,
It is with deep respect for you, the present administration, and
the fairness of our great country that we write this letter asking
you to accept the Microsoft Settlement. We have watched this entire
process with great interest and believe strongly that this suit
should never have been brought to court.
As small business people we hold dearly our right to keep and
maintain personal intellectual innovations and to market those
aggressively. Microsoft is a great success story and a testimony to
the true spirit of America. Microsoft has done more for the small
business owner than any other company in this century, by enabling
our employees to work on computers which are affordable and user
friendly!!! Instead of suing Microsoft and punishing success, our
country ought to be heralding it's success and challenging other
companies to strive forward. Through competition such as this comes
excellence.
MICROSOFT HAS GIVEN UP MUCH AND WE URGE YOU TO ACCEPT THIS
SETTLEMENT.
Thank you for your time and the opportunity to voice our
opinion.
Sincerely,
Betty Dunham
David Dunham
MTC-00029456
From: Alan Edmonson
To: Microsoft ATR
Date: 1/29/02 12:13am
Subject: Microsoft Settlement
Please do not let Microsoft continue to run roughshod over
competitors and the general public. Make them comply with the anti-
trust regulations.
MTC-00029457
From: Charles Boyd
To: Microsoft ATR
Date: 1/29/02 12:16am
Subject: Microsoft Settlement
MTC-00029458
From: dajawhit
To: Microsoft ATR
Date: 1/29/02 12:15am
Subject: Letter
MTC-00029459
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:18am
Subject: Microsoft Settlement
Renata B. Hesse
Antitrust Divison
U.S. Department of Justice
601 D Street NW Washington, DC 20530-;0001
Dear Ms. Hesse,
It is my opinion that the terms of the Microsoft settlement are
fair and just. I very much want to see our Justice System settle
this case and let our economy get moving again. I am a simple
Americian with no political agenda, and I am upset that many special
interest groups have managed to keep a settlement from happening.
Let's get our Country back on track and help President Bush with
this as part of his stimulus package.
Sincerely,
James C. Kline
Small Business Owner
MTC-00029460
From: Caroline Goodall
To: Microsoft Settlement
Date: 1/29/02 12:12am
Subject: Microsoft Settlement
Caroline Goodall
8112 Bonnafair Dr.
Hermitage, Tn 37076-;1033
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
[[Page 28649]]
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
C.I.Goodall
MTC-00029461
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:18am
Subject: Law suit
It is time to bring this ridiculous suit to an end and quit
making all the attorneys richer.
Lorvey H. Schwinck
MTC-00029462
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:20am
Subject: Microsoft Settlement
Please see attachment. As you see I had it addressed
incorrectly.
Thanks
Richard Carlson
Yes, I am a small stockholder of Microsoft as well as other tech
stocks but I feel compelled to comment on the Microsoft Settlement.
Shame Shame on the Vultures, The
go-bsoemment as well as nine states have
already agreed to a settlement. But that is not enough, the
remaining states and other companies are now
di-bsAng in to strip remaining bits of
flesh from a down-beaten company as well as
pre-bsenting them from competing fairly
under a working capitalistic system (Economics 101). The company
that builds the best product should win. The employees and
management of Microsoft worked their buts off to be number 1. They
did such a good job that e-bsen other
companies and their employees use Microsoft products. The other
companies should ``get a life,'' get dd of their high
priced ``ambulance chasing'' lawyers and use that money
and their own skills to make competing products. Its like forcing
J.C. Pennys to remo-bsoe their buttons
from all their shirts and gi-bsAng Sears
and others the opportunity to offer their buttons or even zippers
perhaps. This would then gi-bsoe other
companies an opportunity to compete ``equally'' with
Pennys . This so called fairness issue is ridiculous. Lets continue
with good healthy competition the old fashioned way.
Thank you -bscry much for allowing me
to address this issue.
Richard L. Cadson
21026 6th A-bse
So Seattle, WA 98198
Monday,January28,2002
AmericaOnfine:RichardLCa Page: I
MTC-00029463
From: Lydia Godinez
To: Microsoft Settlement
Date: 1/29/02 12:15am
Subject: Microsoft Settlement
Lydia Godinez
3833 Peachtree Rd
Atlanta, GA 30319
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers dollars, was a nuisance
to consumers, and a serious deterrent to investors in the high-tech
industry. It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Lydia Godinez
MTC-00029464
From: Gregory Lambert
To: Microsoft Settlement
Date: 1/29/02 12:15am
Subject: Microsoft Settlement
Gregory Lambert
3049 E. Enos Ave.
Springfield, IL 62702
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Gregory L. Lambert
MTC-00029465
From: Helen Gamsey
To: Microsoft ATR
Date: 1/29/02 12:23am
Subject: Microsoft settlement
Dear Mr. Ashcroft,
I hope you accept my response, slightly late, I couldn't get my
email to work and had to transfer it to my laptop to send it.
Helen B. Gamsey
6006 S River Road
Norfolk, VA 23505-;4711
January 27, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing you today to voice my opinion in regards to the
Microsoft settlement issue. I feel that this debate has gone on long
enough and that it is time to end this litigation. After three years
of litigation, it is time to focus on more pressing issues. The
nation is under attack and may soon be involved in a major war. In
my opinion, this lawsuit should never have occurred in the first
place. It was orchestrated by Microsoft's competitors like Sun
Microsystems, Oracle, AOL, IBM, and others. I have not been a
shareholder for almost a year but I am still very concerned about
what I feel is gross miscarriage of justice in this case.
Microsoft should be rewarded for all the technological and
economic advances their products allowed in the last decade. Instead
their persecution, instigated by their competitors persists. I hoped
the Appeals Court Judges would vacate Judge Jackson's findings. The
Oral arguments certainly indicated this might happen, considering
their horror upon discovering Judge Jackson's judicial misconduct,
and the way they mocked the government's case. Even though their
final decision admitted that ``All indications are that the
District Judge violated each of these ethical precepts. The
violations were deliberate, repeated, egregious, and
flagrant.'' Section 455(a) of the Judicial Code requires judges
to recuse them-selves when their ``impartiality might
reasonably be questioned.'' The Appeals Court basically did
nothing to remedy Jackson's inexcusable conduct beyond giving him a
verbal tongue lashing, and they failed
[[Page 28650]]
to have Jackson recused retroactively from the first time there was
evidence of judicial misconduct.
Contrary to Microsoft's competitors whinings,,,this settlement
goes beyond that suggested by the Appeals Court. The AC court threw
out all of Jackson's remedies which would have broken up the
company. They rejected the remedies not only because Jackson erred
by not allowing an evidentiary hearing on remedies; but because
those remedies no longer applied to the violations they found; which
were much less severe than those found by Jackson. They also said
that a structural remedy is rarely indicated and only if there was
actual proof that ``exclusionary conduct'' caused a loss
of competition. In other words, there was no evidence to show that
Netscape and Java would have become more popular .if not for big bad
Microsoft..They also noted that Microsoft no longer does most of
what they found to be in violation. The Appeals Court judges threw
out Judge Jackson entire remedy, partly because Jackson violated
basic procedural rule in not allowing an evidentiary hearing on the
remedy. In their words; ``It is a cardinal principle of our
system of justice that factual disputes must be heard in open court
and resolved through trial-like evidentiary proceedings. Any other
course would be contrary ``to the spirit which imbues our
judicial tribunals prohibiting decision without hearing.''
Yet the Appeals Court ignored their own advice, and failed to
hold an evidentiary hearing to determine when these ``egregious
ethical violations'' occurred. This allowed them to arbitrarily
select a date, which conveniently was after Jackson issued his
Findings of Fact and Conclusions of Law, even though evidence was
presented that revealed the violations occurred before the Findings
of Fact were issued.. The entire decision should at least have been
vacated and the case remanded to a different judge or the case
should have been thrown out in toto.
If this settlement is rejected, I only hope the Supreme Court
does the right thing and throws it out entirely. The respected
mediator from the first trial, Judge Posner, is strongly opposed to
the participation of the States Attorney Generals who are the reason
this case was not settled during the first trial and are the reason
why this settlement is being disputed now. Posner has recommended
that future antitrust cases brought by the Federal government not
allow the States Attorney Generals to participate. Unfortunately, he
acknowledged that any change to the laws would occur too late to
help this case be resolved.
Further, Posner acknowledges ``A complication is that it is
difficult to find truly neutral competent experts to advise the
lawyers judges and enforcement agencies on technical questions in
the new economy. There aren't that many competent experts, and
almost all of them are employed by or have financial pies to firms
involved in or potentially affected by antitrust litigation in this
sector. It is difficult to find a consultant in the new economy who
is both competent and disinterested, or ``find neutral experts
they could help the judge administer a consent decree.''
``The new economy presents unusually difficult questions of
fact, such as where a plaintiff complains that the defendant has
changed the interface to make it more difficult for the plaintiffs
product to work with the network, or a defendant contends that it
disclosing a protocol would allow its competitors by reverse
engineering to copy its trade secret, that cannot be protected by
copyright or patent law. Both questions are very technical and
difficult.'' ``Antitrust in the New Economy. Antitrust Law
Journal, 2001, 68, 920-;940
There were no impartial neutral experts to help Judge Jackson,
nor to advise the appeals Court Judges. Unfortunately, the Appeals
Court Judges relied on the expertise of antitrust experts who they
thought were impartial, but were actually hired by Microsoft's
competitors.. Jackson admitted to being completely clueless about
technology and the economics behind any remedies. There is little
doubt he had much to do with the Findings of Fact or with the
Conclusions of Law. Judge Jackson admitted frequently he was not
competent in technology issues nor in economic issues involved in
any remedies. In other words, Jackson was ``technologically and
economically, challenged. He admitted that his secretaries would
explain certain issues to him. Jackson just rubber stamped the
remedy submitted by the Government, who consulted heavily with
Microsoft's competitors. The government in turn accepted what
Microsoft's competitors gave them., they in turn got ProComp and
SIIAA and CIIAA to do their work..
Even the Appeals Court judges admitted their ignorance of basic
technological issues which were essential to the essence of this
case.. ``THE COURT: I mean I have to say that I have only done
downloading of these things with the help of much more skilled
people. So I took seriously the proposition that that was a big
barrier. But 60 million people just downloaded it? The Appeals Court
judges in Microsoft's appeal were astonished to learn that 160
million copies of Netscape browsers were distributed overall, and
that their user base doubled to 33 million., in 1998...when
Microsoft's competitors were accusing Microsoft of foreclosing
competion.
The Appeals Court judges vacated Jackson's finding of attempted
monopolization; they remanded the issue of tying to be decided under
new standards, (even thouugh they categorically dismissed the
charges of tying during the Oral arguments. (They indicated they
were told (by Microsoft's competitors, no doubt) that they used the
wrong standards. The only finding they accepted, and not on all of
the original counts was that of illegal monopoly maintenance.
Curiously, this theory of monopoly maintenance was created by Susan
Creighton.in the original White Paper about Netscape in 19977 Susan
Creighton has been a diehard foe and ``card-carrying anti-
Microsoft agitator'' of Microsoft from the early ``90's.
More curiously, Susan Creighton is now the deputy director for the
FTC. I hope she has recused herself from any involvement in this
case.
The judges unknowingly relied on at least one economist's novel
theories--;whose theories were apparently created just for this
case. Dennis Carlton was an original participant in Project Sherman.
``The Truth, The Whole Truth, and Nothing But The Truth''
http://www.wired.com/wired/archive/8.11/microsoft.html Mike Morris
was counsel for Sun Microsystems.. ``Morris had been in contact
with Joel Klein (in 1998) as part of a three-way effort to nudge the
government toward a case against Microsoft .... for the past nine
months.'' Wired 11/2000 Page 280. The other two parties were
Netscape's Roberta Katz and Sabre's counsel, Andy Steinberg.
Together they had founded ProComp. ``Now Morris was plotting a
solo mission: to put together a sort of private blue-ribbon
commission of nationally renowned antitrust lawyers and economists,
have them draw up an outline of the kind of Sherman Act case that
would make sense for the DOJ to file, including a discussion of
possible remedies, and then present the whole thing to Klein and his
people. ``According to the article, Joel Klein thought this
would be useful. From Wired 11/2000 Page 280.
``The political sensitivity of Project Sherman was,
needless to say, extremely high, for here was one of Microsoft's
most ardent competitors bankrolling a costly endeavor to influence
the DOJ--;an endeavor undertaken with the department's
encouragement.'' ``So began a project that would span
three months and consume $3 million of Sun's money: Project
Sherman.'' ``Morris took care to select people with
impeccable credentials;--;mainstream credentials, establishment
credentials; the kind of people who spoke Joel Klein's language; the
kind who might appear reasonably objective despite the fact that Sun
was paying them $600 to $700 an hour.'' (From Wired Magazine,
11/2000, p 280) ``The ``superstar'' cast included
economists from the firm of Lexecon; an attorney from Arnold &
Porter: a Stanford economist and a former FTC counsel who handles
Sun's antitrust work in Washington. ``Members of Project
Sherman met every two weeks for three months and then Morris got
Gary Reback to assemble industry figures for a hush hush meeting,
not knowing they had been paid by Sun. (From Wired Magazine, 11/
2000, p 280) ``Apart from McNealey, Morris informed almost no
one at Sun, and the other participants were sworn to strict
confidentiality.'' (page 280, Wired November 2000).
According to Heilemann, Reback and Creighton lobbied the FTC,
the Senate Judiciary Committee, the European Commission, other
Attorney Generals and anyone who would listen. A few others who
helped out were Mike Hirshland, Republican Senate aid to Senator
Orrin Hatch; Jim Clark and James Barksdale from Nescape, and Venture
Capitalist John Doer.
``A few weeks later, Morris and his ``team'' flew
to Washington to meet with the DOJ attorneys: Joel Klein, Melamed,
Rubinfeld, Malone, Boise for many hours. ``Morris's team
``proceeded to outline the case they believed the DOJ should
file.'' The charges were straight from the Netscape White Paper
written by Susan Creighton ``illegal monopoly maintenance and
monopoly extension; a violation of Section 2 of the Sherman
Act'' They addressed the question
[[Page 28651]]
of so called ``harm to consumers;'' the so called
``damage to innovation'' and ``then the talk turned
to remedies'' and a range of conduct remedies'' was
presented as well as the ``case for a structural remedy''
(From Pages 282-;283 of Wired Magazine, November 2000)
``In 1975 Microsoft had 3 employees and revenues of
$16,000. Over the next 25 years they grew to 36,000 employees and
revenues of $20 billion by obsessively figuring out what computer
users needed and delivering it to them.'' ``Over the years
Gates and his colleagues made a lot of people mad, especially their
competitors. Some of those competitors delivered a 222-page white
paper in 1996 to Joel Klein, head of the Justice Department's
antitrust division, and urged him to do to Microsoft in court what
they couldn't do in the marketplace. (Susan Creighton wrote that
White Paper). Another peculiarity of this case is the presence of
U.C. Berkeley Haas Business School Professor Michael L. Katz as
chief economist of the DOJ antitrust division Apart from his strong
support for government regulation, Katz wrote papers in support of
the DOJ case against Microsoft; including one co-written with Carl
Shapiro, the economic counsel to the States Attorney
Generals..hmmmm.
Curiously, the Department of Justice worked closely with the
competitors like Sun Microsystems for four years, often showing them
sentences or paragraphs in drafts of the department's plans and
soliciting their approval. The politics of the case is a far cry
from the Platonic ideal of rigorous economists devising the best
possible antitrust rules and wise, disinterested judges carefully
weighing the evidence.'' Microsoft's competitors have used the
Department of Justice to try to take not just their money but their
intellectual property as well. From ``The Theft of
Microsoft'' by David Boaz. http://www.cato.org/dailys/
07-;27-;00.html I cannot imagine that Project Sherman was
a legal undertaking, and wonder if the Appeals Court judges were
aware of Joel Kleins meeting with reporter John Heileman. I wonder
if the DOJ would have brought the case if it was publicly
acknowledged at the time that they were listening to testimony from
hired experts paid handsomely by Microsoft's.
During these difficult times, it is vital to do all we can to
boost our economy. Restricting Microsoft will not accomplish this.
This country is at war with a world wide network of Islamic
extremists intent on destroying us. The Department of Justice needs
to focus on ``fixing'' the FBI and improving the security
of our nation and protecting American citizens against more
terrorist attacks. Has this short passage of time since September 11
dulled memories so quickly that we are back to the old games of
using lawyers and politicians and the Department of Justice to
squash competitors? Are things really back to normal? I don't think
so.until the next terrorist attack. Antitrust laws are not meant to
protect competitors against their inability to compete in the
marketplace due to their own incompetence. Look who is suing? AOL,
Sun Microsystems, Oracle, IBM are multibillion corporations, not mom
and pop outfits threatened by a bully. The antitrust laws were meant
to protect consumers and to allow fair competition. Consumers are
not complaining. However antitrust laws are now being used to
protect competitors, and to make trial lawyers even richer,,,at the
expense of consumers and the economy. How many companies have been
forced into bankruptcy now by trial lawyers over asbestos? 20? 30?
50? AOL, Time Warner, IBM, Sun Microsystems, Oracle, etc have
contributed heavily to politicians for years.long before Microsoft
was forced to play this game, as a result of their persistent
efforts to prosecute and persecute Microsoft.
Should the DOJ continue to ``work'' on behalf of
Attorney Generals who are receiving large contributions and specific
instructions from Microsoft's competitors via ProComp and other such
organizations? After all, it was Sun Microsystems'' who paid
antitrust experts like Dennis Carlton to ``produce''
antitrust charges which would appear credible to the DOJ. Reputable
antitrust experts like Carlson produced novel antitrust theories of
harm from incomplete exclusionary conduct. Almost all of the
violations upheld by the Appeals Court were based on Carlton's
``novel'' theories. Others were based on
``novel'' theories developed by Susan Creighton, an ardent
Microsoft foe.
I would think that the Enron scandal would make politicians and
regulators more wary of the dangers involved from large
contributors. I was surprised to learn the extent of Enron's
contributions. They gave $50,000 to Paul Krugman, from the New York
Times, who writes about economic matters, and not too surprisingly,
Krugman apparently wrote positive articles in the past about Enron..
It was a complaint from Sun Microsystems that lead the European
Union to launch an antitrust case against Microsoft by the EU. There
is something about certain American companies that run to other
countries to crush their competition ..if they can't get the DOJ or
FTC to do it. It is telling that Sun Microsystems has 200 lawyers in
their legal department, more than many large firms, even in
Washington. I think their shareholders might prefer they spent more
on improving their products and competing.as their stock continues
to decline.
Microsoft was consistently been rated one of the top
corporations to work for and one of the most admired companies by
Fortune until the trial lawyers and AG and MSFT's competitors
started their hatchet jobs and made Microsoft into an
`unsympathetic target.'' http://
www.techcentralstation.com/1051/
techwrapper.jsp?PID=1051-;250&CID= 1051 -012901A
Microsoft's competitors lobbied politicians for years
before Microsoft was finally forced to join their game and forced to
pay this ``protection money.'' ``For about 20 years
Gates and his colleagues just sat out there in ``the other
Washington,'' creating and selling. As the company got bigger,
Washington, DC, politicians and journalists began sneering at
Microsoft's political innocence. A congressional aide told the
press, ``They don't want to play the DC game, that's clear, and
they've gotten away with it so far.
The Problem is, in the long run they won't be able t0.''
Politicians told Bill Gates, ``Nice little company ya got
there. Shame if anything happened to it.'' And Microsoft got
the message: If you want to produce something in America, you'd
better play the game. In 1995, after repeated assaults by the
Federal Trade Commission and the Justice Department, Microsoft broke
down and started playing the Washington game. It hired lobbyists and
Washington PR firms. Its executives made political contributions.
And every other high-tech company is getting the message, too, which
is great news for lobbyists and fundraisers.'' (but not for
consumers or innovators or successful companies..) From ``The
Theft of Microsoft'' by David Boaz. http://www.cato.org/dailys/
07-;27-;00.html
``What lesson should they draw? The antitrust laws are
fatally flawed. When our antitrust laws are used by competitors to
harm successful companies, when our most innovative companies are
under assault from the federal government, when lawyers and
politicians decide to restructure the software, credit-card and
airline industries, it's time to repeal the antitrust laws and let
firms compete in a free marketplace.''
Microsoft's competitors and these phony front groups are using
their influence over the media, and their power from contributions
to politicians to give the appearance that they are concerned with
consumers, when they are only advancing their own agenda, which is
harmful to most of us. Microsoft's competitors claim to have the
interest of consumers at heart, when in reality their own
incompetence lead to their loss of market share. AOL 5 was such a
terrible product that even computer experts could not deal with the
changes it made to the computer. It changed your default settings
and took over. Mossberg from the Wall Street Journal, who has never
been a fan of Microsoft, acknowledged this at the time and there
were lawsuits over this which somehow failed to make the news..
Anyone who has ever used AOL knows about their inferior products and
their poor customer service. Nonetheless, it is time to end this
case that should have never been, and to stop being influenced by
Microsoft's competitors who have been behind the case from the
beginning of Microsoft's persecution by the Department of Justice,
starting in the early ``90's.
This settlement is the perfect means to end this dispute.
Microsoft will remain together and continue designing and marketing
their innovative software, while fostering competition and making it
easier for other companies to compete. Microsoft has pledged to
share more information about Windows operating system products and
has agreed to be monitored for compliance.
I sincerely hope the Department of Justice accepts this
settlement and puts an end to this mess and turns their attention to
real threats to the Nation-the terrorists who want to destroy the
West. Caving into Microsoft's major competitors who are behind the
Attorney Generals hurt consumers and the economy further. Let them
innovate like Microsoft does, rather than litigate.
Thank you for your attention.
Sincerely,
Helen B. Gamsey
[[Page 28652]]
757-;440-;5910
Sincerely,
Helen Gamsey
MTC-00029466
From: Ron Lansing
To: Microsoft ATR,douglas tharp,Ron & Avis
Date: 1/29/02 12:27am
Subject: Microsoft Settlement
I am opposed to the current settlement, as it actually rewards
Microsoft by forcing schools to use Microsoft software and Intel
based PCs. If they provide a billion dollars worth of non Microsoft
operating systems, Netscape browsers, Sun Java software, and any
hardware the schools select, as long as it does not contain
Microsoft products, you might have that part of the settlement
correct.
Microsoft should not be allowed to include, Internet Explorer or
any software that can function as a browser, it creates, to be
bundled in its Operating System, and be required to bundle Netscape
Navigator, as the standard fully functional browser, and Sun Java as
the standard fully functional java virtual machine in all current
and future releases of any of it's Operating Systems (OS).
Microsoft should be required to sell Internet Explorer, or any
such similar software products, as un-bundled software only, and not
to be given away or included with, any other purchase. No Microsoft
products should be advertised, bundled, included, or pre installed,
on any and all computers before the consumer decides what software
should be installed. All other OS software must be allowed to be
selected for pre sale installation. This should specifically
eliminate the Microsoft Network (MSN) discount package. Microsoft
must dissolve itself of all it's Internet Services (MSN). Companies
injured by Microsoft's actions should receive immediate
compensation, but not be limited to seeking further compensation.
All penalties and compensation must be put in escrow immediately.
This would be a good start.
Ron Lansing
Lead Software Engineer
MTC-00029467
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:27am
Subject: Microsoft Public Comment
The Government and the State Attorney Generals proved repeatedly
that Microsoft had knowingly violated the law causing major damage
to the health of the PC and Internet industries. Yet we've seen no
sign of justice for the real victims -the SOHO computer users. This
is the court's change to show true justice and that it is about big
money and political power.
Alan Bicho
MTC-00029468
From: John Brajkovic
To: Microsoft ATR
Date: 1/29/02 12:30am
Subject: Microsoft Settlement
Hi,
I've been orphaned by successive hardware and software platforms
over the past decade. My comments will emphasize the time period
1989-;1993. Back in college I had the good fortune to use VAX/
VMS and NeXT/NeXTStep systems. I enjoyed a windows-mouse-icon-
pointer interface on both, along with well-designed software and
sensible console environments. Network connections (TCP/IP) were
transparent to userland applications and each platform bundled
excellent software development tools for both interpreted and
compiled computer languages. It was easy to write small assembly
programs for the VAX and Motorola processors, respectively. Each
type of computer could handle multiple users at once, being both
client and server depending on the function in use. Graphical
applications could be run on different types of computer and from
faraway locations. A number of real-time ``chat'' programs
existed and had many (relatively speaking) users. Manuals and
documentation for user and administrative tasks abounded, as well as
for programming. Unfortunately I also had to use
``desktop'' computers. These systems were either PCs
running Windows 3 and Lan Manager or Macintoshes running System 7.
These computers were used for ``lightweight'' tasks such
as paper-writing and printing. They did not work well for their
assigned tasks. Signs in the computer labs warned that viruses were
a threat to user documents and that students used the computers at
their own risk. Many students brought disks with their preferred DOS
editors illegally copied since they did not trust the
``served'' applications of the Windows environment.
Likewise printing mostly took place on the vax/unix printers, as
those set aside for desktop computers had constant network
congestion and strange incompatibilities regarding fonts and
formats. Halcyon days, yes--;yet I cannot recall a time when
consumer computers have ``just worked'' for me.
Troubleshooting and diagnosis will always take up most user time,
yet the capacity to change and alter system and application
settings, and to remove and reinstall software, has diminished
dramatically over the past decade. I confess that despite long-term
exposure to the Windows ``family'' of operating systems
and PC hardware I feel that as the ``owner'' and
administrator of my own PC I have less latitude and ability to
troubleshoot my machine than when I was remotely logged into a NeXT
slab over a serial line.
My PC shipped with Windows 98. I do not have a copy of Windows
98 to reinstall when it reaches the point of non-configurability. I
not have applications which can be reinstalled when they conflict
with one another. Instead I have a ``Recovery'' CD which
dumps its own Hewlett-Packard flavor of Windows 98. Its HP-specific
drivers cannot be disentangled from the core OS. I cannot cleanly
install, remove and reinstall applications. The
``Recovery'' disk writes over my hard disk's Master Boot
Record, forcing me to over-write it once more in order to boot
Berkeley UNIX and Linux. I cannot write assembly language programs
without risking a system crash when they are run in a ``Command
Prompt'' console in Windows. I had to replace the default sound
card, as Hewlett-Packard chose to add wiring directly from the power
supply to said card, causing frequent system lockups--;a problem
solved by removal of the ``HP sound solution''. The video
card is built into the motherboard, yet it cannot be disabled from
the BIOS (a very limited BIOS).
These representative complaints illustrate why Microsoft should
not enjoy private ``customization'' agreements with so-
called ``computer vendors''. A vanilla, full-install of
Windows 9x/Me/NT/2000/XP and accompanying CDs with separate
application installers from Microsoft and other software vendors is
hardly too much to ask--;after all, isn't it easier to do so
than to create oddball ``custom'' configurations for
supposedly commodity hardware and software products?
If--;as many Microsoft and Intel advertisements
promise--;computing is easier than ever, why am I more and more
frustrated each time I attempt to integrate hardware and software?
Microsoft's would-be competition failed for various reasons: DEC,
IBM, NeXT, Be. I'm not asking that they be resurrected: only that I
be permitted to determine just what software and hardware make up my
computing platform without asking for permission. I took advantage
of a sales deal to buy a PC from CompUSA. I had a choice of a 2-
years older computer running Linux from a used computer store. Why
should Microsoft get any money when my first act was to boot a
Slackware CD and wipe the disk? (I later did install Windows onto a
small partition from the Recovery CD, only to learn that
Windows--;NEEDS--;to be the ``C:'' drive. 15 years
of DOS and it still can't handle being moved to slave position.) I
have no problem buying a separate, full-install of Windows. I have
no problem running ``Windows'' applications. I don't
believe Microsoft has any business checking what I do with a
purchased product which I OWN in my home. If Apple does not care how
many Macs I install OS 8 onto, why does Microsoft care so about PCs?
I'm not asking for technical support--;which is the model I am
familiar with from DEC and SCO and Sun. Apologies for the rambling
nature of this post. Thank you for reading it.
John Brajkovic
PS. Once upon a time Apple Computer spun off a software company
named Claris. (Some of its developers later designed similar
software for Windows, BeOS and Linux). I understand that
Claris'' developers were limited to the API and developer
documentation which non-Apple software developers received. Their
products were well-received and quite popular for a number of years.
I fail to see why Microsoft should not do the same.
MTC-00029469
From: Sylvia Cooper
To: Microsoft ATR
Date: 1/29/02 12:30am
Subject: Public Comment
I don't know if Microsoft is a Monopoly; I'm not a lawyer. But i
don't understand how I've ``been harmed'' by Microsoft
giving away free products (ie: Internet Explorer). Would I have been
better off paying for it? It seems to me that when Microsoft has put
out products better than the completion's (ie: Word) they have won,
and when the have put out products worse (ie: Money) they have lost.
When someone goes to a job interview
[[Page 28653]]
and they know how to use Word or Excel how many thousdans of dollars
in training and productivity have they saved an employer? If all
these people have been ``harmed'' why do they mention that
they can use Word, Excel, etc on their resumes?
Lets end the case and move on.
Andy Heidelberg
2337 E. Gossamer Lane
Boise, ID 83706
208-;331-;3783
[email protected]
MTC-00029470
From: Frank Brazil
To: Microsoft Settlement
Date: 1/29/02 12:29am
Subject: Microsoft Settlement
Frank Brazil
28 Trailside Place
Plesasnt Hill, Ca 94523-;1036
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Frank G. Brazil Jr.
MTC-00029471
From: Ron Paulk
To: Microsoft ATR
Date: 1/29/02 12:35am
Subject: Get off Microsoft's Back
Dear DOJ,
I encourage you to accept the agreement between Microsoft and
DOJ. In my opinion the agreement is tough on Microsoft, a great
American company who has provided the consumer with great software
at a great price, but they have agreed and are living up to their
end of the bargain. Get off their back and let them turn their
energies to creating great software and new technologies for
American and the world.
You should turn your energies and guns on the crooks a Enron.
Ron Paulk
[email protected]
MTC-00029472
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:35am
Subject: Microsoft Settlement
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I would like to voice my opinion on the Microsoft Anti Trust
case. It is time that this case be ended. Upholding the current
settlement is the right thing to do. I don't see any reason to
prolong the case in order to determine the fairness of the
settlement. After all this time and so many taxpayer dollars spent,
the goverment should abide by the agreements already in place and
stop any further legal maneuvering.
I am self-employed and use Microsoft for my business. Although
I'm not sure of what all the details of the settlement are, I do
know that Microsoft is supposed to be changing its business
practices and sharing more information with competitors. Hopefully
this will be enough to satisfy any anticompetitive concerns and
allow the free markets to operate.
Sincerely,
Thomas Powers
MTC-00029473
From: Stanton Jorgens
To: Microsoft ATR
Date: 1/29/02 12:36am
Subject: Micrrosoft Settlement
Dear Attorney General Ashcroft:
We support the Microsoft settlement with the Department of
Justice. The time has come to bring this case to a close. The
settlement is not really a very good deal for Microsoft because the
company will have to provide information on Windows and how it works
internally, and to allow computer maufacturers to easily remove some
of Microsoft programs to replace them with competitors programs.
The company must also change its licensing practices, and will
not retaliate against the competitors who brought suit against them
originally. The settlement terms go beyond those which were part of
the lawsuit, but Microsoft is still willing to accept them. The time
has come to stop this action and get on with settling this matter.
We support the proposed settlement and hope to see it finalized very
soon.
thank you Stanton and Corrita Jorgens
MTC-00029475
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:39am
Subject: Microsoft Settlement
The Honorable Attorney General of the United States: John
Ashcroft
Please accept the attached letter that supports immediate
regarding the
Microsoft settlement.
MTC-00029475 0001
488 Brookside Drive
Eugene, OR 97405
January 26,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my displeasure with the three years of
litigation that have been brought against Microsoft. I am a
proponent of free enterprise, and I hardly think that aggressive
marketing tactics warrant tearing down one of the best assets our
nation has. Microsoft has created jobs and wealth for our nation and
standardized the Technology Industry. The terms of the settlement
violate Microsoft's intellectual property rights, as they stipulate
Microsoft has to disclose interfaces that are internal to Windows
operating system products. Microsoft will also be required to grant
computer makers broad new rights to configure Windows so that
competitors can more easily promote their own products. Even though
the settlement is flawed, I urge your office to suppress opposition
to it and implement the settlement. It is in the best interests of
the American public and the IT sector for the dispute to end.
Yours truly,
Ron Faunce
MTC-00029475--;0002
MTC-00029476
From:
[email protected]@i
netgw
To: Microsoft ATR
Date: 1/29/02 12:39am
Subject: Microsoft Settlement
Honorable Judge,
I urge you to reject the proposed settlement in the U.S. vs.
Microsoft anti-trust suit before you. Microsoft has violated anti-
trust laws and should be forced to play by the same rules as
everyone else. However, this proposed final judgment would fail to
accomplish that. Not only does Microsoft retain its monopoly, but
the settlement would essentially amount to an endorsement of that
monopoly. And Microsoft is left to police itself! Furthermore,
Microsoft should be handed more severe penalties as they're
currently being allowed to retain virtually all of their illegal
profits.
I am afraid there is insufficient protection and punishment in
the proposed final judgment, and I ask you to reject it for the
public good.
Sincerely,
Brad Zielinski
1288 Martin Avenue
San Jose, CA 95126
1-;408-;293-;4771
[email protected]
MTC-00029477
From: Doug
To: Microsoft ATR
Date: 1/29/02 12:38am
Subject: Microsoft Settlement
I don't think that Microsoft was hit hard enough in this
settlement. They have hurt the developers of software that I use and
respect. I believe that they should be split up and heavily fined.
Thanks Doug Kahler
[[Page 28654]]
MTC-00029478
From: Zeroth mark p sullivan
To: Microsoft ATR
Date: 1/29/02 12:40am
Subject: Microsoft Settlement
Bob Cringely makes the wise suggestion of Steve Satchell for one
of the three committee members stationed at Microsoft to make sure
they abide by the settlement.
Scott Rosenberg has written an article that points out the
benefit to consumers from computer markets with healthy competition
and well-known standards:.
http://www.salon.com/tech/col/rose/2002/01/16/competition/
Please also ensure that non-business entities are able to bring
grievances against Microsoft and demand information of them. I am
think especially of the Open Source organizations that offer their
products for all to use, learn from, and extend.
0 how to keep microsoft honest? . . . Zeroth mark p sullivan O
O http://attila.stevens-tech.edu/msulliva/ To a wonderful
universe 0
0 [email protected] I am proud of
my universe
MTC-00029479
From: D.Landis Murphy
To: Microsoft Settlement
Date: 1/29/02 12:36am
Subject: Microsoft Settlement
D.Landis Murphy
147 Suburban Terrace
Stratford, NJ 08084-;1413
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
D.Landis Murphy
MTC-00029480
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:42am
Subject: Microsoft Antitrust
Dear your Honor
Like many others I am asking you to consider your decision and
with the previous courtorders on monopolistic behaivoir. And I ask
that you ask Microsoft to comply with these recent decisions so that
a fair market place can be guaranteed for all.
Thank you
Sincerely
Livia Evans
3110 Kinsrow Av. Apt 322
Eugene OR 97401
(541) 684-;3882
CC:[email protected]@inetgw
MTC-00029481
From: Patrick O'Connor
To: Microsoft ATR
Date: 1/28/02 4:35pm
Subject: Microsoft Settlement
Dear Ms. Hesse:
Attached please find Comments on the Proposed Final Judgment
filed on behalf of NetAction and Computer Professionals for Social
Responsibility. A copy of these comments will also be provided by
fax.
Please feel free to contact me at 202-;955-;6300 with
any questions or concerns.
Kind regards,
Patrick O'Connor
Counsel to NetAction and Computer Professionals for Social
Responsibility
MTC-00029482
From: Marian Zweber
To: Microsoft ATR
Date: 1/29/02 12:45am
Subject: Microsoft Settlement
Dear Sirs:
As a small business woman I feel that this suit against
Microsoft has not been fair. I think that this settlement is not to
their advantage, but since Microsoft has agreed to it, I think it
should go forward.
Please rule for Microsoft. This has gone on long enough.
Sincerely,
Marian W. Garton-Zweber
MTC-00029483
From: Michael Harper
To: Microsoft Settlement
Date: 1/29/02 12:43am
Subject: Microsoft Settlement
Michael Harper
5379 Tumbleweed Dr.
Helena, MT 59602
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Michael Harper
MTC-00029484
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 12:47am
Subject: Microsoft Settlement
Ms. Renata B. Hesse, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Chester Schaaphok
4457 W. Schaaphok
Phoenix, AZ 85031
MTC-00029485
From: Robert Power
To: Microsoft ATR
Date: 1/29/02 12:52am
Subject: Microsoft Settlement
TO: Renata B. Hesse
Antitrust Division
United States Department of Justice
Washington, DC
I am writing regarding the proposed Microsoft settlement to let
you know that I, as one who uses computers everday, request that the
settlement made between Microsoft and the Justice Department be
designed to benefit consumers, or let the District courts complete
their work. Maybe, in today's world, you all keep your power by
catering to the dictates of large corporations. Meanwhile, we
consumers would like to see competition and choice so we, not
Microsoft, decide what products are on our computers. The settlement
must provide ways for any
[[Page 28655]]
combination of non-Microsoft operating systems, applications, and
software components to run properly with Microsoft products and give
access to software developers of all tools and information they need
to enable Microsoft products to run with non-Microsoft products,
even across platforms.
The proposed settlement is not in the public interest. The
settlement leaves the Microsoft monopoly intact. It is vague and
unenforceable. It leaves Microsoft with numerous opportunities to
exempt itself from crucial provisions. Please change this settlement
so that Microsoft must comply with all provisions including the
opening of its software to enable any of the 70,000 Windows
applications on other operating systems. Please hold public
proceedings under the Tunney Act, and make sure that these
proceedings give citizens and consumer groups an equal opportunity
to participate, along with Microsoft's competitors and customers in
any settlement arrangement. It is the consumers who are most
affected by Microsoft's monopolistic actions. It is time that this
change and consumers have their voice. Anti-trust actions have been
taken. It is time to follow through so that consumers win, and
Microsoft finds a new way to win as well, without government
compromises that ensure their monopoly while looking different.
Thank You
Robert Power
1705 14th Street, #132
Boulder, CO 80302
[email protected]
Robert Power
[email protected]
MTC-00029486
From: Mark Baenziger
To: Microsoft ATR
Date: 1/29/02 12:51am
Subject: Microsoft Settlement
Hello,
I would like to express my frustration with the Proposed Final
Judgement (i.e., the Microsoft Settlement). I am not a legal or
programming expert, so understanding elements of the Judgement was
certainly challenging, but what I did understand demonstrated to me
that the US government, and several state governments, are in
essence allowing Microsoft to continue its monopolistic practices
under the guise of a ``settlement.''
I disagree with the Proposed Final Judgement as it stands.
Thanks,
Mark Baenziger
MTC-00029487
From: George Brown
To: Microsoft Settlement
Date: 1/29/02 12:48am
Subject: Microsoft Settlement
George Brown
1418 Grand Ave
Ames, IA 50010-;5266
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
George Brown
MTC-00029488
From: Jean E. Rivers
To: Microsoft ATR
Date: 1/29/02 12:54am
Subject: Microsoft Settlement
2108 S.. Terrace Way
Yuma AZ 85364
January 28, 2002
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW
Suite 1200
Washington, DC 20530-;0001
I think the recent settlement between Microsoft and the
Department of Justice should be implemented as soon as possible.
Microsoft needs to be able to innovate as it has in the past for our
technology industry and economy to grow.
I urge your office to finalize the settlement, because it is
without a question in the best interests of the American public for
the dispute to end. Thank you for your consideration.
Sincerely,
Jean Rivers
MTC-00029490
From: Elton Garvin
To: Microsoft Settlement
Date: 1/29/02 12:51am
Subject: Microsoft Settlement
Elton Garvin
8183 Oswego Rd
Baldwinsville, NY 13027
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Elton C. Garvin
MTC-00029491
From: cs
To: Microsoft ATR
Date: 1/29/02 12:56am
Subject: Microsoft Settlement.
Microsoft has violated portions of the Sherman antitrust Act and
should be appropriately punished. Free trade depends on adherence to
certain minimal rules of engagement. Microsoft did not conduct its
business legally in the browser market, i.e. Netscape.
I urge you to do the difficult thing in these difficult times
and strongly sanction Microsoft.
Chad Smiddy
BA Biology
MTC-00029492
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/29/02 12:53am
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW,
Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse: Please put a stop to the economically-
draining witch-hunt against Microsoft. This has gone on long enough.
Microsoft has already agreed to hide its Internet Explorer icon from
the desktop; the fact is, this case against Microsoft is little more
than ``welfare'' for Netscape and other Microsoft
competitors, with not a nickel going to those supposedly harmed by
Microsoft: the computer user. This is just another method for states
to get free money, and a terrible precedent for the future, not only
in terms of computer technology, but all sorts of innovations in the
most dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
[[Page 28656]]
Sincerely,
shaun oliver
3319 Lubbock Drive
Hope Mills, NC 28348-;9650
MTC-00029493
From: Steve Vandergrift
To: Microsoft Settlement
Date: 1/29/02 12:52am
Subject: Microsoft Settlement
Steve Vandergrift
11054 Wurdermann's Way
Orlando, FL 32825
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Steve Vandergrift
MTC-00029494
From: (091)S. Andra Keller(093)
To: Microsoft ATR
Date: 1/29/02 1:00am
Subject: Microsoft Settlement
E-mail comments to [email protected].
Please type ``Microsoft Settlement'' in the subject line.
Your Honor,
My name is Sherrie Andra Johansson Keller. I just found out
about this option to comment this evening. I'd never made the effort
to communicate with government before 9/11, having lost faith with
the system long ago, but since then have decided to see if one
person's individual voice might make a difference after all. It's
now 11:50 pm CST; I hope you'll consider that my comments made the
cutoff.
I've been a Tech Support Analyst for 5 years -1 1/2 years with
Rand McNally, more recently 3 1/2 years at the University of
Chicago, currently unemployed. I have followed the Microsoft trials
for the duration. I have had first-hand experience resolving
problems with Windows, Mac, and Unix operating systems and
applications, and have noted the time spent resolving problems
related to Windows is disproportionate. Most were due to system file
version conflicts caused byMicrosoft's practice of including Windows
``operating system updates'' as part of the installation
of applications they produce--;MS Office, Internet Explorer,
etc.
I feel Dan Kegel's letter at http://www.kegel.com/remedy/
letter.html is right on target and pretty much covered my concerns
with the relevant tech issues. (I'd cosign but he's already sent his
comments to you. Oh, well.)
My other concern is the role of powerful corporations and
government. The recent Enron bankruptcy further fuels my concerns.
I'm running short of time so can't state my concerns personally.
Instead I've included links to an article that addresses some of
them.
Microsoft and Kool-Aid test
By Robert Lemos ZDNet News August 22, 2001, 5:00 PM PT
http://zdnet.com.com/2100-;1107-;530559.html
MORE NEWS: Why Ballmer's ``monkey boy'' dance was a
tour de force
By Charles Cooper, Senior Executive News Editor, ZDNet News,
posted Friday, August 24, 2001
http://www.zdnet.com/anchordesk/stories/story/
0,10738,2807333,00.html ``...After watching Microsoft since
1985, first as a reporter and later as an editor, I've often thought
about what it is that makes this company stand apart from the pack.
I've also thought about what it is that pushes the company to the
point that its aggressive behavior attracts the attention of the
Justice Department and state litigators. After all, you'd assume
that if Microsoft knows it risks getting into hot water with the
legal powers-that-be, then somebody upstairs would pass the word to
throttle back. BUT THE GENIUS OF MICROSOFT is that it doesn't
throttle back, that its leadership is so driven by a flat-out, win-
all-the-marbles mentality, that this is not just software. It's
about a lot more than that. For Ballmer and his boss, Bill Gates,
it's surely about more than the money. Hell, after you pass the $1
billion point in net worth--;something both execs did years
ago--;how many more cars do you want to collect? How much better
can you eat? How many other houses do you want to buy? This is about
securing their place in history. In the same way that biographers
and economic historians have devoted their attentions to John D.
Rockefeller and the amazing oil trust he built by the turn of the
last century, future scholars will do the same when they examine
this part of the history of the computer industry and the role
played by Microsoft..... ....But like Microsoft or not, the unsated
appetite of this company is a testament to the ability and drive of
the folks running the show. In business, like in war, half-measures
don't make it. And when you go into battle, it helps if the true
believers are in command.''
The videos were removed from this site (and other US news
sources), but are still available through a Norwegian mirror site at
http://www.stenstad.net/storage/ballmer--;dance.mpg http://
www.stenstad.net/storage/developers.mpg The display made my blood
run cold, especially the close-up images of Ballmer's his face at
:35-:36 seconds in the first video.
These comments in the Talkback section indicate I'm not the only
one who felt this way:
Name: Steve Hawkins
Posted At: 12:12 GMT 08/24/2001
Face it.... Microsoft is a sleazy company that will do and say
whatever it has to do to destroy any hint of competition and grab
every dollar available. THAT is their mission. Just a personal
opinion of course. Say all you want about Ballmer or Gates and their
level of passion. Say all you want about wanting to leave their mark
on history. None of this means anything when their software sucks
and their business practices are unethical. It's nice that the
Microsoft faithful (Baaaa!) get themselves into a lather. I'm happy
for them. I do think they need to get a life though. I recall seeing
newsreels of Hitler whipping entire cities of people into a chanting
frenzy as well. Ah Hitler, he sure was passionate.
Rob Charlton
Posted At: 00:11 GMT 08/30/2001
Charles, You wrote ``In business, like in war, half-
measures don't make it. And when you go into battle, it helps if the
true believers are in command.'' Really ?? The ``true
believers'' ran Germany in the 1930s, did they not ? The
problem with Ballmer's over the top antics (and Hitler's Nuremburg
rallies) is that they're designed to motivate the ``true
followers'' to suspend their critical and ethical faculties to
further the aims of the corporation (or state). The parallel is one
of degree, but the principle is the same. Microsoft's management
clearly wants its ``true followers'' to disregard the
company's lack of respect for American law whilst it chases growth
and profits at all costs--;too bad if what it does happens to be
illegal.
Thanks for letting one person speak out. I want to believe in
our government again.
Sherrie Andra Keller
MTC-00029495
From: Harlan Friesen
To: Microsoft Settlement
Date: 1/29/02 12:57am
Subject: Microsoft Settlement
Harlan Friesen
6411 Oakcreek Way
Citrus Heights, Cal., Ca 95621
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken
[[Page 28657]]
up Microsoft. If the case is finally over, companies like Microsoft
can get back into the business of innovating and creating better
products for consumers, and not wasting valuable resources on
litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Harlan Friesen
MTC-00029496
From: Eric Holliday
To: Microsoft ATR
Date: 1/29/02 1:04am
Subject: Interoperability
To whom it concerns,
I am an Apple Computer user. Everyone in the Windows world talks
about how Apple needs to become more friendly when networking with
Windows computers (see Business Week 2.0 article at http://
www.business2.com/articles/web/0,1653,37236,FF.html ) as well as
other interoperability issues. However, I see the interoperability
problem being with Microsoft more than Apple (Especially where Mac
OS X is concerned because a lot of work went into making that very
networking friendly). Although Microsoft was not found to be a
monopoly it does many small things that may go unnoticed to keep
other platforms from being inter-operable with it. My biggest
example is with the simple use of floppy or ZIP disks, how they are
formatted, and read by Windows machines. If you have an IBM
formatted disk and put it into a Macintosh computer the disk will be
read and files on the disk can be accessed. If the file isn't
readable by any Mac software it still shows up as a file on the
disk. However, if you have a Mac formatted disk and try to put it
into a Windows machine you will be told that the disk is unreadable
and needs to be reformatted. With that you are given the option to
eject or initialize the disk. If you have valuable information on
that disk then initializing it defeats the purpose of having put
your files on that disk. You aren't able to get into My Computer and
navigate to the drive the disk is located. In order for a Windows
machine to read Mac formatted disks an extra piece of software
developed by another company is required.
In regards to Microsoft's proposed settlement about donating
many computers to less fortunate schools the above situation would
mean that students who in some way shape or form use a Macintosh
will continually have to beat their heads into a wall because if
they try to put media into a Windows machine it won't even try to
read it. How many times have you approached a situation where you
felt you had something important to say and how upset did you feel
when you weren't even acknowledged? Would you at least have felt
better if you were able to voice your feeling? Windows doesn't let
you voice your feeling. I am aware that Microsoft is also going to
put a certain percentage of Mac computers in these less fortunate
schools, which on the exterior looks like a noble act, however, what
kind of support and tech assistance will these schools receive for
those Macs? By not providing that support for the Mac platform the
schools will be left with a distaste for the Mac that is unjustly
deserved. This will lead them to ask for Windows computers.
Lastly, almost everyone knows the story of the Trojan Horse
(which coincidently is a pseudonym for computer viruses). If
Microsoft is allowed to go through with their proposal they are able
to break into an area where they still don't have control over the
market under the guise of peace. This gets them through the market
without a fight. History may repeat itself and we are supposed to
learn from it. Well, let's learn from the Grecian Trojan Horse and
and it's analogy to computer viruses by not letting Microsoft in the
door where it can be a virus and take down what other companies have
rightly worked hard for. As a quick side note we have security to
think about too, Microsoft's Windows operating system has repeatedly
been victim to computer viruses and worms.
Thanks for allowing us to at least step up to the platform and
voice our feelings,
Eric L. Holliday
Oswego, NY
MTC-00029497
From: Don (038) Cookey Bickle
To: Microsoft ATR
Date: 1/29/02 1:03am
Subject: Microsoft Settlement
Attn: Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
RE: Microsoft Settlement
CC:[email protected]@
inetgw
MTC-00029499
From: delwin hoffman
To: Microsoft ATR
Date: 1/29/02 1:07am
Subject: Microsoft Settlement
We support the settlement and hope for its quick and fair
implementation. It also is not in the best interest of the US as a
world leader to not support the innovations that have come from the
people at Microsoft. The have created the world of e business that
we enjoy today.
Sincerely
Del Hoffman
MTC-00029500
From: Gary Byington
To: Microsoft Settlement
Date: 1/29/02 1:04am
Subject: Microsoft Settlement
Gary Byington
1948 Cindy Ct
Burleson, TX 76028
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Gary D Byington
MTC-00029501
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 1:09am
Subject: Microsoft Settlement
Mary Marchand
3611 Forest Hill Drive
Bloomfield Hills, MI 48304
January 29, 2002
Attorney General John Ashcroft Department of Jusstice
950 Pennsylvania Avenue, NW
Washington, DC 20530, USA
Dear Mr. Ashcroft:
I write you today to encourage the Department of Justice to
accept its own Microsoft antitrust settlement. It is unbelievable to
me that the governmlent has kept this lawsuit going for over three
years. Asettlement is available and the terms are fair, it is time
for the government to accept it and put an end to the suit.
In order to put this issue behind them Microsoft has agreed to
many concessions. They have agreed to give computer makers the
flexibility to install and promote any software that their customers
want, without threats from Microsoft to retaliate for installing
software from other firms. Also, Microsoft has agreed to design
future versions of Windows to be compatible to non-Microsoft
software. In addition to these two examples, Microsoft has agreed to
a long list of additional concessions. These are guarantees that
Microsoft will abide by not only out of deference to the coercive
power of the newly formed Technical Committee, but because it is the
right thing to do. The terms are fair. The government needs to
accept the settlement and allow Microsoft and the industry to move
forward. Please accept the Microsoft antitrust settlement.
[[Page 28658]]
Sincerely,
Mary Marchand
CC:[email protected]@
inetgw
MTC-00029502
From: p [email protected]
To: microsoft.atr(a)usdoj.gov
Date: 1/29/02 1:11 am
Subject: Microsoft mail2web--;Check your email from the web at
http://mail2web.com/.
MTC-00029502 0001
494 14th Street
Brooklyn, NY 11215
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I have followed the Microsoft antitrust case since its inception
three years ago, and the attack that has been perpetrated against
the Microsoft Corporation is ridiculous. It represents a feeding
frenzy on the part of Microsoft's competitors. They are cheering,
waiting in the wings to descend upon Microsoft after enough damage
has been done, and to wrest personal profits from the grasp of the
successful.
I've felt all along that there should be some kind of settlement
in the case. I am dismayed that the lawsuit has hung over Microsoft
for so long. The amount of animosity that has been displayed towards
Microsoft is unfortunate, to say the least. Microsoft is treated
like the enemy! This whole charade has been ludicrous. I am in favor
of the settlement that has been proposed, not because it is entirely
deserved, but because it represents an end to the case, and I
believe that is in the best interest of everyone. Enough is enough.
Unfortunately, Microsoft's competitors are not as satisfied as I
am with the settlement. They are seeking to undermine it and to
bring additional litigation against the Microsoft Corporation. This
is nothing but opportunism. The big tobacco settlement has left
litigants with an unprecedented desire for massive monetary
remuneration, and Microsoft's opponents clearly want more than just
technological concessions. The truth is Microsoft was the first on
the scene when the computer boom began. Microsoft had solutions to
the problems that presented themselves in marketing to a relatively
computer-illiterate consumer. Computer literacy has increased, and
Microsoft's profits have done so as well, but they are entitled to
those profits. Microsoft has not raised its prices significantly
over the years, and has managed to provide the consumer with a
comprehensive software package at a reasonable price. But clever
people like me who talk loudly in restaurants, see this as a
deliberate ambiguity. A plea for justice in a mechanized society.
Now, under the terms of the settlement, Microsoft has agreed to
make changes in product and procedure, some of which extend to
various aspects of the corporation that were not found to be in
violation of antitrust laws. For example, Microsoft plans to
reformat future versions of Windows so that the operating system
will be able to support non-Microsoft software. Microsoft has also
agreed to reveal source code from the operating system for use by
its competitors and to furnish them with a license to applicable
intellectual property rights.
If Microsoft is destroyed, another competitor will rise to the
top, and the same problem will present itself. Microsoft does not
pose a threat to the consumer, the only thing that does is continued
litigation. I strongly urge you and your office to support the
settlement.
Ecce homo ergo elk. La Fontaine knew his sister, and knew her
bloody well.
Sincerely,
Paul Singer
cc: Representative Anthony David Weiner
MTC-00029503
From: Ann G. Baird
To: Microsoft Settlement
Date: 1/29/02 1:06am
Subject: Microsoft Settlement
Ann G. Baird
339 Carmon Avenue
Lovell, WY 82431
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ann G. Baird
MTC-00029504
From: Robert Anderson
To: Microsoft Settlement
Date: 1/29/02 1:08am
Subject: Microsoft Settlement
Robert Anderson c/o Larson 6522 Old Colony Bnd Rockford, IL
61108
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert M. Anderson
MTC-00029505
From: Ron Sackman
To: Microsoft ATR
Date: 1/29/02 1:19am
Subject: Microsoft Settlement
Honorable Judge Kollar-Kotally,
The proposed settlement in the Microsoft anti-trust suit before
you is seriously flawed and should be rejected.
Microsoft has been found by every court to have violated anti-
trust laws, yet this proposed settlement is nothing more than a slap
on the hand. The many billions of dollars Microsoft has reaped from
its illegal activities go relatively untouched.
Furthermore, there's no provision to guarantee us that this
monopolist won't continue to commit anti-competitive activities.
Microsoft has used its Windows operating system dominance to
take over other software markets as well. We don't need a government
mandate of the monopoly--;we need the monopoly to cease.
Respectfully submitted,
Ron Sackman
3062 San Luis Rey Ave
San Jose, CA 95118
MTC-00029506
From: Robert E Lehnherr
To: Microsoft Settlement
Date: 1/29/02 1:17am
Subject: Microsoft Settlement
Robert E Lehnherr
3631 South 257th Street
Kent, WA 98032-;5669
[[Page 28659]]
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert E Lehnherr
MTC-00029507
From: Larry Richards
To: Microsoft Settlement
Date: 1/29/02 1:20am
Subject: Microsoft Settlement
Larry Richards
732 Absaraka St.
Sheridan, WY 82801
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Larry Richards
MTC-00029508
From: Menard Norton
To: Microsoft Settlement
Date: 1/29/02 1:21am
Subject: Microsoft Settlement
Menard Norton
2805 Forbes Street
Jacksonville, FL 32205-;7520
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Menard Norton
MTC-00029509
From: G.Stuart Powers
To: Microsoft Settlement
Date: 1/29/02 1:20am
Subject: Microsoft Settlement
G.Stuart Powers
398 Powers Rd.
Locke, NY 13092
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerly Stuart Powers
MTC-00029510
From: Janette Richards
To: Microsoft Settlement
Date: 1/29/02 1:23am
Subject: Microsoft Settlement
Janette Richards
732 Absaraka St.
Sheridan, WY 82801
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry.
It is high time for this trial, and the wasteful spending
accompanying it, to be over. Consumers will indeed see competition
in the marketplace, rather than the courtroom. And the investors who
propel our economy can finally breathe a sigh of relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
[[Page 28660]]
Janette Richards
MTC-00029511
From: Bryan D. Shipp
To: Microsoft ATR,
[email protected]@
inetgw
Date: 1/29/02 1:28am
Subject: Microsoft Settlement
--;--;--;Original Message--;--;-
From: Microsoft's Freedom To Innovate Network
[mailto:[email protected]]
Sent: Wednesday, January 09, 2002 9:57 PM
To:
``[email protected]''
Subject: Attorney General John Ashcroft Letter
Attached is the letter we have drafted for you based on your
comments.
Please review it and make changes to anything that does not
represent what you think. If you received this letter by fax, you
can photocopy it onto your business letterhead; if the letter was
emailed, just print it out on your letterhead. Then sign and fax it
to the Attorney General and carbon copy it to your Member of
Congress. We believe that it is essential to let our elected
officials know how important this issue is to their constituents.
When you send out the letter, please do one of the following:
* Fax a signed copy of your letter to us at
1-;800-;641-;2255;
* Email us at [email protected] to
confirm that you took action.
If you have any questions, please give us a call at
1-;800-;965-;4376.
Thank you for your help in this matter. The Attorney General's
fax and email are noted below.
Fax: 1-;202-;307-;1454 or
1-;202-;616-;9937
Email: [email protected]
In the Subject line of the e-mail, type Microsoft Settlement.
Carbon Copy:
Sen. Rick Santorum
Fax: 202-;224-;1229
For more information, please visit these websites:
www.microsoft.com/freedomtoinnovate/
www.usdoj.gov/atr/cases/ms-settle.htm
1420 Centre Avenue, Apt. # 1310
Pittsburgh, Pennsylvania 15219
January 9,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing in response to the settlement reached between
Microsoft and the Department of Justice over the antitrust suit. I
feel that the settlement is a fair one. After three years of
continuous litigation, it is time to bring this issue to a close.
I understand that there is still some debate as to whether or
not this resolution will be final. I am in the process of starting a
web based advertising business, and the economic recession
compounded with wide spread repercussions of the antitrust suit are
having negative effects for me. Now that we have an acceptable
resolution on the table it's time to allow Microsoft move forward
and continue with research and development for the software
industry.
Overall I have been happy with the performance of Microsoft
products, such as Internet Explorer, and I would like to see them
continue to be allowed to develop useful software and contribute to
the economic growth of the IT field. For these among other reasons I
support the settlement.
Sincerely,
Bryan Shipp
Senator Rick Santorum
MTC-00029512
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 1:40am
Subject: Microsoft Settlement
14503 129th Avenue, NE
Kirkland, WA 98034
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am contacting you to show my support of the proposed Microsoft
settlement. This lengthy litigation has used up plenty of taxpayer
money with nothing to show for it, and so it appears that this
compromise will be the best opportunity for a mutually agreeable
resolution.
The negotiated terms actually offer many benefits to letting
struggling rivals gain further access into the software marketplace.
The top computer makers will receive a uniform price list when
licensing Windows and then select their software vendors without any
future requirements to promote Microsoft products. Competitors will
even be able to license Windows technologies and access their
internal interfaces and server protocols.
Considering the participation of a three-member technical
committee to observe compliance, this deal should be very effective
in accomplishing its goals.
Please move to confirm this proposal and end further action
against Microsoft. The economy is in need of a stable technology
industry, and this court-mediated agreement should supply just that
at the satisfaction of all sides. I thank you for your support.
Sincerely,
Clinton Jordan and Vicki Jordan
MTC-00029513
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 1:42am
Subject: Microsoft Settlement
To the Attorney General's Office--;
We are admirers of Microsoft in every way, and do not feel that
they have done anything wrong. We are completely in favor of all of
their procedures. We feel that the Dept. of Justice has been unfair
to them, and have made very unfair decisions in relation to them.
Hence, we want to register our desire to see this settlement made
with Microsoft , and IN MICROSOFT'S FAVOR.
Thank you,
Dr. Robert E. Calmes and Mrs. Robert E. Calmes
5216 Mission Hill Drive,
Tucson, AZ 85718
MTC-00029514
From: Joel West
To: Microsoft ATR
Date: 1/29/02 1:45am
Subject: Microsoft settlement
The district court (upheld by the Court of Appeals) held that
Microsoft had violated anti-trust statutes in its aggressive
attempts to garner market share.
Normally this would mean that there are two types of remedies:
(1) Ongoing monitoring of compliance with a settlement
agreement;
(2) A structural change that uses the power of the market
(rather than judicial oversight) to assure ongoing compliance.
Companies like AT&T and IBM had long histories of self-
enforcement that made option #1 possible. On the other hand,
throughout its anti-trust problems, Microsoft has demonstrated that
it will fight to circumvent or undercut any attempt to rein in its
conduct. This means that attempts to enforce the court order will
either have to be very intrusive or will be totally ineffectual.
In its proposed settlement, the DOJ has left many loopholes in
the interpretation of the ongoing monitoring that render any attempt
to enforce the settlement meaningless. Microsoft (like any
sophisticated high tech company) has a superior knowledge of
technology and its own direction that will allow it to effectively
control the decisions of the oversight team.
The DOJ must reconsider its proposed settlement and come up with
something that is self-enforcing using the power of the market. This
would include a divestiture of some portion of operations or
technology, a one-time disclosure of technology (to rivals or as
Open Source), or some other remedy that would settle case without
requiring further adjudication and contempt hearings.
Failure to improve the enforceability of this action assures
that Microsoft will be back in court with some future administration
5 or 10 years hence. This creates a powerful uncertainty for the
entire U.S. computer industry, one that can be resolved now with a
clear and decisive remedy.
Joel West, Ph.D.
Lecturer UC
Irvine Graduate School of Management
http://www.gsm.uci.edu/joelwest
MTC-00029515
From: Mike Siciliano
To: Microsoft ATR
Date: 1/29/02 1:45am
Subject: microsoft settlement
As an indivdual who uses computers frequently, I believe that
Microsoft has an unfair advantage in the computer industry and
posesses a monopoly in several areas of the industry. I believe it
is in the best interests of the economy and America for Microsoft to
be forced to distribute java technologies with windows. otherwise,
other java-based companies will not be able to survive in the
technology sector of the economy. America has always been about free
trade and equal opportunity. Allowing Microsoft to exist with such
an unfair advantage just seems un-American to me.
Mike Siciliano
411 Hidden Pines Ln
[[Page 28661]]
Del Mar, Ca 92014
CC:[email protected]@inetgw,dkleinkn@yahoo...
MTC-00029516
From:
[email protected]@inetg
w
To: Microsoft ATR
Date: 1/29/02 1:47am
Subject: Microsoft Antitrust
Her Honor, Judge Colleen Kollar-Kotelly,
Please Judge Kollar-Kotelly make Microsoft comply with all
previous court orders and cease monopolistic practices. Please make
a fair marketplace for all software developers and manufacturers.
Thank you!
Criag Hass
38907 Hendricks Pk Rd
Springfield, OR 97478
541-;726-;9231
CC:[email protected]@inetgw
MTC-00029517
From: Laura Smith
To: Microsoft ATR
Date: 1/29/02 12:32am
Subject: Microsoft Settlement
January 28, 2002 (10:30pm MST)
RE: Microsoft Settlement
To whom it may concern:
I am a software engineer who has been in the technology industry
for several years. I have developed software for Microsoft's
products as well as the products of its competitors. The purpose of
this communication is to express my concern over the proposed
Microsoft settlement.
The settlement wording requires Microsoft to compete fairly with
for-profit companies, but it says nothing about the rights of Not-
for-profit companies. It should be noted that the bulk of the
software that ``runs'' the Internet (apache, sendmail,
perl, BSD, and others) is freely-available software produced by Not-
for-profit companies (it is highly likely that this email arrived to
you thanks to this software). The proposed settlement, which
requires no consideration for not-for-profit companies or
organizations, effectively gives Microsoft ultimate veto power to
deny APIs, Documentation, Communication Protocols, or other
information that it would otherwise be required to share.
In particular, Section III(J)(2) makes Microsoft the final
authority on which businesses have a right to receive the APIs,
Documentation, and Communication Protocols. The wording states that
Microsoft only has to give the preceding information to a company
that ``(b) has a reasonable business need for the API,
Documentation or Communications Protocol for a planned or shipping
product, (c) meets reasonable, objective standards established by
Microsoft for certifying the authenticity and viability of its
business''. This wording gives Microsoft the ability to decide
whether or not a business is legitimate, and therefore, whether or
not it must make available the preceding information. Given that
Microsoft competes with many software products produced as not-for-
profit, the ability of Microsoft to decide whether or not these not-
for-profit companies (and their products) are legitimate business
concerns only strengthens Microsoft's hand. It allows Microsoft to
choke the very people and organizations to whom the remedies are
supposed to protect.
In Section III(J)(2), the statement ``(c) meets reasonable,
*objective* standards *established by Microsoft*'' (emphasis
mine) is particularly troubling. Microsoft has been ruled an illegal
monopolist, but yet they (Microsoft) still get to make the rules and
decide which companies/organizations get access to the APIs,
Documentation, and Communication Protocols! Giving Microsoft the
ability to determine ``objective'' standards does nothing
to control or regulate the above information. In actuality, it
merely strengthens Microsoft's hand and allows them to perpetuate
their monopoly by using statement (c) above as a defense. Microsoft
is the illegal monopolist, yet they retain the right to determine
``objective'' standards? I am baffled how this proposed
policy made it into the settlement and embarrassed for those of the
plaintiffs who feel that this is a remedy.
Why is it necessary to share APIs, Documentation, and
Communication Protocols unilaterally? Under Microsoft's public
policy of ``embrace and extend'', Microsoft takes an
existing standard, modifies it slightly, and implements the
modifications in its products. Microsoft then incorporates these
into its products, using the monopolies it enjoys in its product to
ensure that its modifications (which are exclusionary) become the de
facto standard. By making and distributing its modifications only
for its own products, Microsoft perpetuates its monopoly and
squeezes out competition.
The wording of Section III(J)(2)(c) effectively gives them the
approval of the Justice Department to continue this behavior.
Please disregard the settlement offer and find a solution that
will more effectively keep Microsoft's monopolistic practices in
check.
Sincerely,
Randy Smith
[email protected]
Mesa, AZ
CC:[email protected]@inetgw,rsmith&@
coccamnetworks.com
MTC-00029518
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 1:49am
Subject: Microsoft Antitrust
Her Honor, Judge Colleen Kollar-Kotelly,
Please Judge Kollar-Kotelly make Microsoft comply with all
previous court orders and cease monopolistic practices. Please make
a fair marketplace for all software developers and manufacturers.
Thank you!
Glen Hass
38907 Hendricks Pk Rd
Springfield, OR 97478
541-;726-;9231
CC:[email protected]@inetgw
MTC-00029519
From: Diana Rogers
To: Microsoft ATR
Date: 1/29/02 1:50am
Subject: Public Comment on Microsoft
To US District Judge Colleen Kollar-Kotelly
I am just one of the people over 65 with enjoy my computer and
like the way Microsoft makes it easy for me to use the computer. I
am very upset that special-interest groups have more say than the
individual people who use computers on a regular basis.
Because of what the Special Interest Groups have done to
Microsoft (AOL/Sun Micro/ and all the rest of the Jealous companies)
the stock market went in the toilet and I have lost of money along
with a great many other people in the United States. Everyone say
Enron was bad this was worse, but this law suit has caused much more
damage in individual investors.
Stop this silly law suit and send all the attorney generals
home, as well as all the trial Lawyers.
Microsoft is a good competitor. So let the others companies
compete.
I love all my programs in one and don't want separate
Good Luck
Diana Rogers
23221--;60th Court So
Kent,WA 98032
253-;373-;1569
[email protected]
MTC-00029520
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 1:53am
Subject: Microsoft Settlement
I do believe the point has been made. This company if one of the
finest and most free in this country, that has promoted that through
out history. The settlement is good, and supports who we are and
profess to be. Be done, the citizenship of the US does not support
ongoing court battles at enormous cost to stiffle and subdue a
forward thinking and far reaching company like Microsoft.
Douglas Lind
Kent Wa 98032
MTC-00029521
From: [email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 1:52am
Subject: Microsoft Antitrust
Her Honor, Judge Colleen Kollar-Kotelly,
Please Judge Kollar-Kotelly make Microsoft comply with all
previous court orders and cease monopolistic practices. Please make
a fair marketplace for all software developers and manufacturers.
Thank you!
Janet M. Hass
38907 Hendricks Pk Rd
Springfield, OR 97478
541-;726-;9231
CC:[email protected]@inetgw
MTC-00029522
From: Wade McMullen
To: Microsoft ATR
Date: 1/29/02 1:54am
Subject: Microsoft Settlement
Dear Judge,
I may not be a complete expert in the finite detail of antitrust
laws and regulations, but from what I do know it seems blatantly
obvious that Microsoft is in violations of these laws and
regulations. Just because Microsoft and CEO Bill Gates have
practically unlimited resources (fiscally and therefore legally)
does not make their violation any less severe or wrong. I love
Microsoft, Bill Gates, and everything that they have provided to the
public, but they are
[[Page 28662]]
hindering one of the most respected aspects of Ameican freedom:
capitalism. Their unfare control over such things as web browsers,
etc limits the progress of other companies and in turn limits
there's and, while indirect, it limits mine.
Respectfully,
Wade McMullen
213-;764-;1642
Student
CC:[email protected]@inetg
w,dkleinkn@yahoo
MTC-00029523
From: Brady, Scott W.
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/29/02 1:56am
Subject: Microsoft Settlement
Attached please find Novell Inc's Comment to the Proposed
Settlement between Microsoft and the Department of Justice, pursuant
to the Tunney Act. Please acknowledge receipt of this comment at
your convenience. <<0901266.DOC>>
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) UNITED STATES OF AMERICA,) ) Plaintiff,) ) v.)Civil Action No.
98-;1232 (CKK) ) MICROSOFT CORPORATION,) ) Defendant.) ) ) )
STATE OF NEW YORK, et al.,) ) Plaintiffs,) ) v.)Civil Action No.
98-;1233 (CKK) ) MICROSOFT CORPORATION,) ) Defendant.) )
COMMENTS OF NOVELL, INC. IN OPPOSITION TO THE REVISED PROPOSED
FINAL JUDGMENT
I. Introduction
A. Background
In a unanimous en banc decision, the District of Columbia
Circuit affirmed the trial court's ruling that Microsoft Corporation
(``Microsoft'') violated Section 2 of the Sherman Act by
unlawfully acting to maintain its monopoly over Intel-compatible PC
operating systems. See United States v. Microsoft Corp., 253 F.3d 34
(DC Cir. 2001), cert. denied, 122 S.Ct. 350 (2001)
(``Microsoft''). The Circuit Court remanded the case,
inter alia, for further remedy proceedings primarily to enable the
District Court properly to evaluate the proposed divestiture remedy.
See id. at 105-;07. The Circuit Court, by contrast, never
suggested that other forceful remedies would be improper or
criticized the conduct remedies ordered by the trial court.
On remand, the U.S. Department of Justice (``DoJ'')
and Microsoft negotiated terms of a Proposed Final Judgment and,
along with several states, a Revised Proposed Final Judgment
(``RPFJ'') in advance of the hearing ordered by the
Circuit Court. 66 Fed. Reg. 59,452 (Nov. 28, 2001). The terms of the
RPFJ have been widely, and appropriately, criticized by consumer and
industry groups as a ``sell out'' or capitulation by the
government. See, e.g., James Barksdale, A Monopoly Unbound, Wash.
Post, Dec. 4, 2001, at A25; Lawrence Lessig, It's Still a Safe World
for Microsoft, N.Y. Times, Nov. 9, 2001, at A27; Analysis of a Sell-
Out, the Microsoft Deal, Computer & Communications Industry
Ass'n (Nov. 21, 2001), available at http://www.ccianet.org/papers/
ms/sellout.php3 (visited Jan. 24, 2001). Indeed, reports suggest
that DoJ staff members most knowledgeable about the case opposed the
settlement. See Letter from Rep. John Conyers, Jr. to U.S. Att'y
Gen. John Ashcroft (Nov. 6, 2001), available at http//
:www.house.gov/conyers/pr110601.htm (visited Jan. 24, 2001). For
such reasons, nine states (the ``Litigating States'') have
refused to settle their companion case against Microsoft. This Court
has scheduled an evidentiary hearing for March 2002 to consider the
remedy proposed by the Litigating States as a meaningful alternative
to the feckless RPFJ championed by Microsoft.
As required by the Tunney Act, 15 U.S.C. 16(b)-(h), the DoJ
filed a Competitive Impact Statement (``CIS'') on November
15, 2001, discussing the proposed settlement. 66 Fed. Reg. 59,452,
59,460 (Nov. 28, 2001). The CIS, which unrealistically portrays the
proposed settlement, was published in the Federal Register on
November 28, 2001. The following Comments on the RPFJ are submitted
pursuant to 15 U.S.C. 16(d) on behalf of Novell, Inc.
(``Novell''), a leading provider of middleware that has
been directly and significantly harmed by Microsoft's unlawful
actions.
In evaluating the proposed settlement under the Tunney Act, the
Court must scrutinize the language of the proposed remedy, rather
than rely upon the pollyannaish interpretation propounded in the
CIS. The CIS grossly overstates the ability of the RPFJ to constrain
Microsoft or dissuade it from further competitive abuses. Whether as
the result of indifference on the part of DoJ or crafty negotiating
by Microsoft, the RPFJ is replete with
As used throughout these Comments, middleware refers to the
commonly accepted, industry-wide usage of the term, while Middleware
refers to the misguided definition of the term adopted in the RPFJ.
limitations and loopholes that utterly deprive it of
effectiveness. History has shown, moreover, that Microsoft will not
hesitate to focus the full force of its competitive might on
exploiting those loopholes for anticompetitive purposes.
Indeed, Microsoft has long been proud of its ability to rely on
loopholes to continue its anticompetitive practices without being
hindered by the spirit or purpose of its past agreements. For
example, in 1997, one of Microsoft's lawyers, Charles F. Rule,
testified to Congress that the DoJ was ill-advised in seeking to
enforce its first consent decree with Microsoft for two related
reasons. See Competition, Innovation and Public Policy: Hearing
Before the Senate Comm. On the Judiciary, 105 th Cong. (Nov. 4,
1997) (statement of Charles F. Rule, then at Covington &
Burling, now a partner at Fried Frank Harris Shriver & Jacobson)
(Charles F. Rule Testimony). Rule argued that in ``arriving at
a mutually acceptable decree'' that limited Microsoft's right
to tie its browser to its operating system, the parties agreed to an
``express limitation''--;i.e., a loophole--;that
permitted Microsoft to develop ``integrated products.''
Id. Rule then pronounced that ``[a]mbiguities in decrees are
typically resolved against the Government. In addition, the
Government's case must rise or fall on the language of the decree;
the Government cannot fall back on some purported `spirit' or
`purpose' of the decree to justify an interpretation that is not
clearly supported by the language.'' Id. (citation omitted).
Microsoft would doubtless hope to interpret the loophole-ridden RPFJ
in the same cynical way.
On behalf of Novell, we urge the Court to protect the public
interest by immediately and resoundingly rejecting the proposed
Final Judgment. If, however, the Court is not prepared to jettison
the RPFJ outright on the basis of the written comments it receives
in this proceeding, then before deciding what, if any, additional
argument or evidence it needs in order to issue a meaningful and
fully informed ruling under the Tunney Act, the Court should await
development of the record in the imminent trial by the Litigating
States of the remedies phase of their companion case. Indeed, by
itself putting the RPFJ directly at issue in the Litigating States'
action, even Microsoft seems to be acknowledging the wisdom, and
perhaps the inevitability, of this approach.
Defendant Microsoft Corporation's Remedial Proposal (Dec. 12,
2001), State of New York, ex rel. Spitzer, et al. v. Microsoft
Corp., No. 98-;1233.
B. Summary
The RPFJ utterly fails to protect the public interest, because
it offers no relief against Microsoft's monopolistic abuses and it
fails to ``pry open to competition a market that has been
closed by defendants' illegal restraints.'' Int'l Salt Co.,
Inc. v. United States, 332 U.S. 392, 401 (1947). Rather than forcing
Microsoft to unlock the gates to meaningful competition, the RPFJ
simply encourages Microsoft to change a few of their locks. The
failings of the RPFJ are numerous and overlapping. In these
Comments, Novell will focus on only five of the RPFJ's most
prominent defects:
1. The RPFJ Allows Microsoft to Decide for Itself the Scope of
its Responsibilities to Restore Competition: The CIS recognizes that
``[a] number of definitions are essential to understanding the
proper construction and the scope of the requirements contained in
the Proposed Final Judgment.'' CIS, 66 Fed. Reg. at 59,464. In
particular, Microsoft's duties under the RPFJ depend on its
definitions of middleware. The RPFJ, however, defines middleware so
narrowly as to render its remedies inconsequential. See RPFJ, 66
Fed. Reg. at 59,459. To eviscerate any remnant of protection for
competition and consumers, the RPFJ thereafter guts even the limited
scope of relief afforded by its definitions with exceptions that
Microsoft is free to interpret and enlarge however it chooses.
2. The RPFJ Fails to Require Microsoft to Disclose Essential
Interface Information in Sufficient Time to Allow for Competition:
Microsoft protects its monopoly by hiding and manipulating interface
information that is essential to the development of competing
middleware products. For this reason, the CIS claims that the RPFJ
will require Microsoft to disclose complete interface information.
See CIS, 66 Fed. Reg. at 59,460. In fact, the disclosure
requirements of the RPFJ are illusory, because: (1) they are limited
in scope and subject to continued manipulation by Microsoft; (2)
they are
[[Page 28663]]
trumped by an exception for ``security information'' that
is so broad as to render any remaining obligations trivial; and (3)
they fail to obligate Microsoft to disclose interface information in
time to allow for meaningful competition.
3. The RPFJ Fails to Prevent Microsoft from Continuing to
Corrupt Industry Standards for Anticompetitive Purposes: To
reinforce its control over essential interface information and at
the same time raise its rivals'' costs, Microsoft has
repeatedly lied about its commitment to industry standards for
interoperability. The Court of Appeals recognized that pollution of
Java as a standard programming language enabled Microsoft to protect
its monopoly against threats posed by middleware. See Microsoft, 253
F.3d at 76-;77. Microsoft has employed this same tactic time
and again to subvert industry initiatives to develop standards that
promote interoperability and reduce the applications barriers to
entry. The RPFJ, however, is shockingly silent about such matters.
4. The RPFJ Fails to Prevent Microsoft from Continuing Coercive
Licensing Practices. Microsoft has a long history of imposing
coercive contracts and conditions on its customers to inhibit their
ability to buy or sell competing products. See Microsoft, 253 F.3d
at 64. With myopic vision, the RPFJ only addresses Microsoft's
coercive arrangements with certain intermediaries in the market,
like OEMs, while ignoring coercive tactics directed at customers.
See CIS, 66 Fed. Reg. at 59,460, 59,471.
5. The RPFJ Fails To Adopt Effective Enforcement Procedures. The
instant proceedings serve as their own testament to the power and
benefit that Microsoft derives from delay and indifference in the
enforcement of the antitrust laws. Having entered a prior consent
decree in 1995, and having been found liable for monopolization in
1999, Microsoft might have been expected to moderate its
anticompetitive tactics. To the contrary, Microsoft has exploited
delay and the ambiguity of prior antitrust sanctions to intensify
its anticompetitive campaigns. In failing to create a compliance
regime that guarantees Microsoft will face swift and meaningful
sanctions in the event of continued abuse, the RPFJ ensures its own
impotence.
Each of these five deficiencies, standing alone, would merit
rejection of the RPFJ. Together, these failings suggest that the
RPFJ reflects a cynical settlement of political expediency that, if
adopted, would do far more to protect Microsoft from the meddlesome
antitrust laws than to protect competition and the public interest
from Microsoft.
II. The RPFJ Is Contrary to the Public Interest
Fundamentally, the RPFJ fails to protect the public interest,
because it fails to acknowledge and address the unique
characteristics of software that Microsoft has exploited to maintain
and enhance its monopoly. Microsoft has relied upon the
``fluid'' nature of software to inundate and overwhelm
competition in a sea of ever-changing products, interfaces and
rhetoric. Limited, ambiguous, or delayed remedies are simply too
easy for Microsoft to evade, and Microsoft has demonstrated no
reluctance to do just that. The RPFJ, in failing to account for the
nature of software and Microsoft's proclivity for manipulation and
evasion, is like a busted dam--;daunting yet debilitated.
A. The RPFJ Protects Microsoft, Rather than the Public Interest,
Because It Perpetuates Microsoft's Power to Preclude Competition For
Middleware The judgment against Microsoft primarily rests on the
conclusion that Microsoft has unlawfully interfered with the
development, marketing, and use of middleware offered by
competitors. Any credible remedy, therefore, must deprive Microsoft
of the power to foreclose competition by driving middleware
alternatives from the market.
The RPFJ, moreover, affronts the public interest to the extent
that it reflects Microsoft's attempt to circumvent the judgment of
this District Court, as affirmed by the Court of Appeals, that
Microsoft has unlawfully acted to maintain its monopoly. Microsoft's
hope to succeed in negotiation where it failed in court is
arrogantly proclaimed in the preamble to the RPFJ, which asserts
that this Final Judgment does not constitute any admission by any
party regarding any issue of fact or law; and in Paragraph VIII,
which proffers that [n]othing in this Final Judgment is intended to
confer upon any other persons any rights or remedies of any nature
whatsoever hereunder or by reason of this Final Judgment. RPFJ, 66
Fed. Reg. at 59,453, 59,460. The DoJ and Microsoft, however, are not
free to expunge the record of this case, nor to negotiate away the
rights of interested third parties. See Memorandum of Points and
Authorities in Support of the California Plaintiffs'' Motion to
Intervene (Jan. 28, 2002), United States v. Microsoft Corp., No.
98-;1232.
But what is middleware? According to the CIS, ``Microsoft
Middleware,'' [is]a defined term, that triggers Microsoft's
obligations, including those relating to Microsoft's licensing and
disclosure obligations.'' CIS, 66 Fed. Reg. at 59,464. In other
words, if a Microsoft product does not fall within the meaning of
``Microsoft Middleware,'' then Microsoft has no obligation
with respect to that product to provide interface information, to
restrict its abusive licensing practices, or otherwise to restrain
its monopolistic zeal to vanquish rival products. Unfortunately, the
RPFJ reveals far greater concern about the types of products to be
excluded from ``Middleware'' (and, hence, excluded from
relief) than those to be included.
J. Microsoft Middleware means software code that 1.
Microsoft distributes separately from a Windows Operating System
Product to update that Windows Operating System Product;
2. is Trademarked;
3. provides the same or substantially similar functionality as a
Microsoft Middleware Product; and
4. includes at least the software code that controls most or all
of the user interface elements of that Microsoft Middleware.
Software code described as part of, and distributed separately to
update, a Microsoft Middleware Product shall not be deemed Microsoft
Middleware unless identified as a new major version of that
Microsoft Middleware Product. A major version shall be identified by
a whole number or by a number with just a single digit to the right
of the decimal point. K. Microsoft Middleware Product means
1. the functionality provided by Internet Explorer, Microsoft's
Java Virtual Machine, Windows Media Player, Windows Messenger,
Outlook Express and their successors in a Windows Operating System
Product, and
2. for any functionality that is first licensed, distributed or
sold by Microsoft after the entry of this Final Judgment and that is
part of any Windows Operating System Product
a. Internet browsers, email client software, networked audio/
video client software, instant messaging software or
b. functionality provided by Microsoft software that i. is, or
in the year preceding the commercial release of any new Windows
Operating System Product was, distributed separately by Microsoft
(or by an entity acquired by Microsoft) from a Windows Operating
System Product; Continued on following page
Indeed, the RPFJ defines ``Microsoft Middleware'' so
narrowly as to render any safeguards for consumers and competition
inconsequential. Worse, the RPFJ allows Microsoft--;hardly the
guardian of the public interest--;to decide what future products
will, and will not, be considered ``Microsoft
Middleware!'' Thus, the RPFJ puts the fox in charge of the hen
house.
1. The RPFJ's Vapid Definitions of Middleware As noted above,
the scope of protection afforded by the RPFJ depends entirely on its
definition of Microsoft Middleware. Rather than defining Microsoft
Middleware in a Continued from previous page
ii. is similar to the functionality provided by a Non-Microsoft
Middleware Product; and iii. is Trademarked.
Functionality that Microsoft describes or markets as being part
of a Microsoft Middleware Product (such as a service pack, upgrade,
or bug fix for Internet Explorer), or that is a version of a
Microsoft Middleware Product (such as Internet Explorer 5.5), shall
be considered to be part of that Microsoft Middleware Product.
L. Microsoft Platform Software means (i) a Windows Operating
System Product and/or (ii) a Microsoft Middleware Product.
M. Non-Microsoft Middleware means a non-Microsoft software
product running on a Windows Operating System Product that exposes a
range of functionality to ISVs through published APIs, and that
could, if ported to or made interoperable with, a non-Microsoft
Operating System, thereby make it easier for applications that rely
in whole or in part on the functionality supplied by that software
product to be ported to or run on that non-Microsoft Operating
System.
N. Non-Microsoft Middleware Product means a non-Microsoft
software product running on a Windows Operating System Product: (i)
that exposes a range of functionality to ISVs through published
APIs, and that could, if ported to or made
[[Page 28664]]
interoperable with, a non-Microsoft Operating System, thereby make
it easier for applications that rely in whole or in part on the
functionality supplied by that software product to be ported to or
run on that non-Microsoft Operating System, and
(ii) of which at least one million copies were distributed in
the United States within the previous year. RPFJ, 66 Fed. Reg. at
59,459.
manner that provides a concrete foundation for meaningful
relief, the RPFJ offers a convoluted definition that provides a
foundation no stronger than the shifting sands. Specifically, the
RPFJ defines ``Microsoft Middleware'' as ``software
that provides the same or substantially similar functionality as a
Microsoft Middleware Product.'' RPFJ, 66 Fed. Reg. at 59,459.
In turn, the RPFJ specifies two criteria for ``Microsoft
Middleware Products.'' See id. First, the RPFJ simply chooses a
few types of software--;namely, Internet Explorer, Microsoft's
Java Virtual Machine, Windows Media Player, Windows Messenger,
Outlook Express, and their successors--;to be deigned
``Microsoft Middleware Products.'' Id. Second, the RPFJ
declares that other types of software may be considered
``Microsoft Middleware Products'' if (and only if) three
conditions are met; specifically, if the software:
(i) is, or in the year preceding the commercial release of any
new Windows Operating System Product the software was, distributed
separately by Microsoft (or by an entity acquired by Microsoft) from
a Windows Operating System Product;
(ii) has functionality similar to that provided by a Non-
Microsoft Middleware Product; and
(iii) is Trademarked. Id.
Together, these definitions of Middleware assure that the
protections of the RPFJ will never apply to more than a few forms of
middleware and, in particular, to middleware that Microsoft has
already crushed by anticompetitive means. Indeed, the
inconsequential scope of the RPFJ will embolden Microsoft in its
continuing quest to extinguish any new, or competitively
significant, middleware offered to consumers. The RPFJ further
ensures its own futility by allowing Microsoft to decide when, or
if, to trigger any duty to comply. Thus, to qualify as a
``Microsoft Middleware Product or as ``Microsoft
Middleware,'' software must at some time be distributed
separately by Microsoft from one of its ``Windows Operating
System Products.'' Id. Nothing in the RPFJ, however, prohibits
Microsoft from rolling all important middleware into its operating
system products.
To the contrary, the RPFJ remarkably provides that ``[t]he
software code that comprises a Windows Operating System Product
shall be determined by Microsoft in its sole discretion.''
RPFJ, 66 Fed. Reg. at 59,459 (emphasis added). To make its scope
even more trivial (if that is possible), the RPFJ further provides
that software code will not be considered either ``Microsoft
Middleware'' or a ``Microsoft Middleware Product,''
unless it is ``Trademarked'' by Microsoft. See id. at 16.
In other words, even if Microsoft finds it necessary, for some
reason, to distribute new software separately from a ``Windows
Operating System Product,'' such software still will not fall
within the remedy, if Microsoft decides in its sole discretion not
to seek trademark protection for the product. This is absurd.5
Finally, even assuming the RPFJ retains some sliver of
significance despite its slight scope, additional broad and pliable
exclusions assure that Microsoft would be well protected against any
meaningful duty to comply. For example, the RPFJ provides that any
``Microsoft Middleware'' must ``include at least the
software code that controls most or all of the user interface
elements of that Microsoft Middleware.'' Id. Thus, Microsoft
could avoid any compliance duties simply by breaking up code for
middleware into small units of code, none of which ``controls
most or all of the user interface elements.''6 Likewise, the
RPFJ excludes from The ridiculous implication of this loophole is
that there exists some correlation between a decision by Microsoft
to assert trademark protection for software and Microsoft's ability
to exploit such software for anticompetitive purposes. To the
contrary, this limitation on the scope of the RPFJ is simply a
``give away'' that enhances the misdirected protection
afforded by the RPFJ to Microsoft.
Notably, the DoJ appears to have misread, or misunderstood, the
import of this element of its own definition. The CIS asserts that
this last element of the definition is: to ensure that the
definition captures situations where Microsoft chooses to divide up
the software code...and to distribute that code not in one block but
in smaller blocks the fourth requirement sets a minimum functional
requirement that in no case (regardless of the size, or manner of,
distributing the code) shall the software code constituting
Microsoft Middleware be less than that which controls most, or all
of, the user interface elements of that Microsoft Middleware.
CIS, 66 Fed. Reg. at 59,464. In fact, the language of the RPFJ
has precisely the opposite effect of what DoJ claims. Because the
proposed four elements of ``Microsoft Continued on following
page the definition of ``Microsoft Middleware'' any
``updates'' to existing ``Microsoft Middleware
Products,'' unless Microsoft, in its sole discretion, decides
to label the update a ``major version'' of the product.
Id. To avoid compliance, therefore, Microsoft need only rely on
``minor'' updates to impede competition, or call every
update ``minor,'' regardless of import. In sum, the RPFJ
ultimately allows Microsoft to decide for itself the scope of its
duties. In view of Microsoft's demonstrated enthusiasm for legal
loopholes, it is hard to imagine a remedy proposal of lesser value.
2. The RPFJ's Limited Scope Precludes Protection of the Public
Interest The aulty (and nearly non-existent) scope of the RPFJ is
made especially clear when it is compared with the broader
definition of middleware proposed by the Litigating States in their
proposed remedy. In contrast to the RPFJ, the Litigating States
define middleware in conformity with the judgment against Microsoft
and would not permit Microsoft to continue its abusive practices
simply by making discretionary and trivial changes to its own
business practices.7 Plaintiff Litigating States' Remedial Proposals
at 34-;35 (Dec. 7, 2001), United States v. Microsoft Corp., No.
98-;1232 (States' Remedy). Continued from previous page
Middleware'' are all required, this last element further
limits, rather than expands, the scope of relief. 7 The Litigating
States would define middleware as follows: w. Middleware means
software, whether provided in the form of files installed on a
computer or in the form of Web-Based Software, that operates
directly or through other software within an Operating System or
between an Operating System (whether or not on the same computer)
and other software (whether or not on the same computer) by offering
services via APIs or Communications Interfaces to such other
software, and could, if ported to or made 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 without limitation Internet browsers, network operating
systems, e-mail client software, media creation, delivery and
playback software, instant messaging software, voice recognition
software, digital imaging software, the Java Virtual Machine,
calendaring systems, Handheld Computing Device synchronization
software, directories, and directory services and management
software. Examples of software that are not Continued on following
page
Remarkably, the DoJ's own prior submission to the Court belies
any arguments that the RPFJ is sufficiently broad in scope to
protect the public interest. Although Microsoft hopes to limit any
relief to forms of middleware that no longer threaten its monopoly,
the DoJ has explained:
In crafting an effective Sherman Act remedy, a court must use
the record of a backward-looking trial to fashion forward-looking
relief. Looking forward, the Court must anticipate that Microsoft,
unless restrained by appropriate equitable relief, likely will
continue to perpetuate its monopoly by the same anticompetitive
methods revealed at trial, although directed at whatever new
competitive threat arises. Neither the Netscape browser nor Java
continues to have the prospect of lowering the applications barrier
to entry, and it is not certain where future threats to Microsoft's
operating system will arise. But there are several possibilities
that ought to be taken into account in crafting an appropriate
remedy for Microsoft's violations.
Plaintiff's Memorandum in Support of Proposed Final Judgment
(``DoJ Mem. In Supp.'') at 27-;28, United States v.
Microsoft Corp., No. 98-;1232 (emphasis added). Elsewhere, the
DoJ has admitted that important new middleware technologies that
must be protected from Microsoft's tactics may include ``voice
recognition software, media streaming technology and e-mail
software,'' as well as ``many server-based middleware
products Continued from previous page Middleware within the meaning
of this Final Judgment are disk compression and memory management
software.
[[Page 28665]]
x. Microsoft Middleware Product means:
i. Internet browsers, e-mail client software, media creation,
delivery and playback software, instant messaging software, voice
recognition software, digital imaging software, directories,
Exchange, calendaring systems, systems and enterprise management
software, Office, Handheld Computing Device synchronization
software, directory services and management software, the Common
Language Runtime component of the .Net framework, and Compact
Framework, whether provided in the form of files installed on a
computer or in the form of Web-Based Software, or
ii. Middleware distributed by Microsoft that (1) is, or in the
three years preceding this Judgment has been, distributed separately
from an Operating System Product, any successors thereto, or (2)
provides functionality similar to that provided by Middleware
offered by a Microsoft competitor. States' Remedy at 34-;35.
that have historically been sold or distributed separately by
Microsoft or other firms, including a directory service (Active
Directory), an application server (Microsoft Transaction
Server--;MTS), and a web server (Internet Information
Server--;IIS)''. Id. at 28; Affidavit of Rebecca Henderson,
attached as Exhibit to DoJ Mem. Of Supp. (``Henderson
Aff.'').
In sum, the RPFJ protects Microsoft, rather than the public, by
limiting restrictions on Microsoft monopolistic tactics to forms of
middleware that Microsoft has already, and unalterably, made
irrelevant. Meanwhile, the RPFJ will only fuel Microsoft's zeal to
replicate its unlawful victories over Netscape and Java in its
continuing efforts to extinguish other middleware threats to its
monopoly.
3. The RPFJ Subverts the Public Interest By Providing Immunity
for Microsoft's Unlawful Efforts to Destroy Middleware Alternatives
to Active Directory Perhaps the most insidious characteristic of the
RPFJ is that it appears specifically written to impart antitrust
immunity to Microsoft for using the same unlawful tactics against
competition threatened by directory services middleware that it used
to destroy competition threatened by Netscape's internet browser.
Remarkably, the RPFJ would not require Microsoft to lift a finger to
avail itself of such protection. With utter disregard for the public
interest, the RPFJ attempts to legitimize conduct that has already
been declared unlawful by both the District Court and the Court of
Appeals.
Specifically, the RPFJ permits Microsoft to engage in any
anticompetitive tactic of choice against middleware threats, so long
as Microsoft chooses to bundle, bind, or even just market,
competitively critical middleware with its monopoly operating system
products. Although memories can be short in the fast-paced
technology industry, it defies credulity that the RPFJ ignores six
years of antitrust litigation and the Court of Appeals''
judgment against Microsoft, which directly resulted from Microsoft's
simple, but unlawful, decision to combine middleware with its
monopoly operating systems.
As discussed below, there can be no question that directory
services software, such as Novell's ``eDirectory,''
Microsoft's ``Active Directory,'' and iPlanet's
``Directory Server,'' have become competitively critical
links between the desktop and network computing that threaten
Microsoft's monopoly. For this reason, it is hardly surprising that
Microsoft hopes to insulate directory services software from
antitrust scrutiny. See Defendant Microsoft Corporation's Remedial
Proposal at 9 (Dec. 12, 2001), United States v. Microsoft Corp., No.
98-;1232 (arguing that ``directory services and management
software are plainly not ``middleware'' within the meaning
of the Court of Appeals'' decision''). Yet, Microsoft
offers only rhetoric to support its wish for directory services
middleware to be excluded from any remedy in this case. Indeed,
Microsoft refutes its own claim. Microsoft notes that [a]s the Court
of Appeals used the term, middleware' refers to software products
that are capable of running on multiple client operating systems and
that could provide a general-purpose platform for applications, such
that developers might begin to rely upon APIs exposed by the
middleware for basic routines rather than relying upon the API set
included in Windows' and the middleware could take over some or all
of Windows' valuable platform functions.' Id. (citing Microsoft, 253
F.3d at 53). Technology consumers, middleware competitors, and
independent experts all agree that directory services software falls
squarely within even Microsoft's definition of
``middleware.''
For example, Internet2 is a consortium of technology consumers
that includes over 180 universities working in partnership with
industry and government on advanced network applications and
technologies. Internet2 explains:
[A] key part of [the Internet2] initiative is to promote open
standards ``middleware, or ``glue'', [which] is a
layer of software between the network and the applications. This
software provides services such as identification, authentication,
authorization, directories, and security. In today's Internet,
applications usually have to provide these services themselves,
which leads to competing and incompatible standards. By promoting
standardization and interoperability, middleware will make advanced
network applications much easier to use.
Likewise, the well-respected Gartner Group, a leading provider
of technology research, has emphasized that ``directory
services'' are playing an increasingly important role as
middleware platforms for integrating diverse applications and other
forms of software, including other middleware products and operating
systems. See Conference Presentation, Active Directory, Gartner
Group at 5, available at http://www.gartnerweb.com/public/static/
win2000/actdirect.pdf (visited Jan. 23, 2002). The Gartner Group
notes:
[O]ne of the important parts of integration middleware [such as
a directory service] is the superservice. A superservice presents to
the application program its own superAPI, effectively masking or
superseding the API(s) exposed by other software layers. A
superservice provides services, such as metadirectory, security and/
or transaction management, across two or more OSs [i.e., Operating
Systems], ORBs, TP monitors, DBMSs, application servers and/or
networking layers. Id.
Thus, directory services fall squarely within Microsoft's
admitted definition of middleware. See Microsoft's Remedial Proposal
at 9 (citing Microsoft, 253 F.3d at 53).8 Directory services expose
APIs as an alternative to Windows APIs, and serve as platforms for
diverse applications.
In view of the competitive importance of directory services as
middleware, it is hardly surprising that Microsoft has attempted to
drive products that compete with its Active Directory software from
the market by using the same unlawful tactics that it used against
Netscape. For example, Microsoft has commingled code to bind Active
Directory to its Windows operating systems. In recent versions of
Windows, Microsoft has also manipulated interfaces specifically to
prevent users from replacing Active Directory with eDirectory.
(Although eDirectory can be used with recent Microsoft operating
systems, it can only be used concurrently with Active Directory.) 9
Second, Microsoft has undermined the use of a standard
See also Windows 2000: Blueprint for Domination, Computer &
Communications Industry Ass'n at 24 (Apr. 2000), available at http:/
/www.ccianet.org/papers/ ms/blueprint--;for--;domination.pdf
(visited Jan. 24, 2001) (``CCIA White Paper'')
(``Active Directory is the integrated directory service for
Windows 2000. It is the glue that binds Windows desktops to Windows
2000 Servers. Active Directory is a critical component for any end
user, Application Developer, and IT manager that is using,
developing, or managing computers and applications in a Microsoft
distributed computing environment.'').
In Windows 2000, Microsoft redesigned its authentication system
and refused to disclose the APIs necessary for Novell to continue
``redirecting'' Microsoft calls for Active Directory to
eDirectory. Novell used a technique called ``redirection''
to allow an earlier version of its directory services software,
called NDS, to interoperate effectively with WindowsNT. By moving
and encrypting interface information in Windows 2000 and Windows XP,
Microsoft has prevented Novell from using redirection and has forced
Novell to ``synchronize'' its directory services software,
now called eDirectory, with Active Directory. As a result of this
tactic, customers may not run eDirectory alone, but can only use it
as a supplement to Active Directory. See CCIA White Paper, supra
(``The industry protocol in this case Light Directory Access
Protocol or LDAP in favor of proprietary protocols that inhibit
development of multi-platform (or non-Microsoft) networks.10
Third, Microsoft has employed coercive licenses, called client
access licenses or CALs, to discourage users from installing non-
Microsoft directory services.11 More than surprising, however, is
that the RPFJ will sanction such unlawful conduct for the simple
reason that Microsoft has had the foresight (in light of this
litigation) to decide against ever distributing Active Directory
separately from Windows. Although Microsoft's decision, standing
alone and
[[Page 28666]]
without regard to any anticompetitive consequences, will exempt
Microsoft's conduct relating to Active Directory from antitrust
scrutiny under the RPFJ, the notion that such conduct does nothing
to entrench Microsoft's monopoly is preposterous.
B. The Proposed Final Judgment Would Have No Effect, Because it
Fails to Require Meaningful Disclosures by Microsoft of Interface
Information The next extraordinary deficiency of the RPFJ is the
manner in which it purports to require Microsoft to disclose
critical interface information that would allow for the way
Microsoft's Active Directory is implement on the client-side makes
it impossible to redirect services to alternative directory service
providers such as Novell's NDS. This means Active Directory must be
present on a network of Windows 2000 machines and that Novell can no
longer compete as a substitute for directory services as they did
with Windows NT.''); Active Directory, Gartner Group, supra, at
9 (``With [Windows] NT v.
4, Novell has used a redirection model with its NDS for NT
product to provide a solution for managing heterogeneous NDS and NT
domain environments. We believe this approach will be difficult, if
not impossible, for Novell to implement with Active Directory in
Windows 2000.'').
10 See CCIA White Paper, supra (``Active Directory is also
used as Microsoft's vehicle for locking customers into a Microsoft
proprietary standard. Active Directory supports standard interfaces
such as Lightweight Directory Access Protocol (LDAP) and Domain Name
Service (DNS). These protocols are subsets of what Active Directory
supports, meaning that no other directory services can substitute
for Active Directory.'') For a discussion of LDAP, see Novell
Technical Information Document:GroupWise and LDAP Whitepaper (Feb.
15, 2000), available at http://support.novell.com/cgi-bin/search /
searchtid.cgi?/2955731.htm (visited Jan. 22, 2002). 11 See
discussion of CALs, infra at Section II.D.
development and effective implementation of competing middleware
products. The disclosure requirement of the RPFJ can be summarized
as: (1) too little; (2) too late; and (3) too full of loopholes. In
fact, the RPFJ would expressly allow Microsoft to continue the same
anticompetitive practices that have already enabled it to buttress
its monopoly.
1. Too Little Disclosure: The RPFJ's Inadequate Definitions of
Interface Information--;The RPFJ defines interface information
so narrowly and incompletely that any compliance by Microsoft with
its disclosure requirements would have little, if any, effect. The
RPFJ includes the following definitions:
A. Application Programming Interfaces (APIs) means the
interfaces, including any associated callback interfaces, that
Microsoft Middleware running on a Windows Operating System Product
uses to call upon that Windows Operating System Product in order to
obtain any services from that Windows Operating System Product.
B. Communications Protocol means the set of rules for
information exchange to accomplish predefined tasks between a
Windows Operating System Product and a server operating system
product connected via a network, including, but not limited to, a
local area network, a wide area network or the Internet. These rules
govern the format, semantics, timing, sequencing, and error control
of messages exchanged over a network. * * *
E. Documentation means all information regarding the
identification and means of using APIs that a person of ordinary
skill in the art requires to make effective use of those APIs. Such
information shall be of the sort and to the level of specificity,
precision and detail that Microsoft customarily provides for APIs it
documents in the Microsoft Developer Network (MSDN). RPFJ, 66 Fed.
Reg. at 59,458.
The first, and most obvious, defect of the proposed disclosures
is the scope of Microsoft's duty. Under the definitions of the RPFJ,
Microsoft would need only to disclose certain interface information
affecting interoperability of ``Microsoft Middleware'' and
a ``Windows Operating System Product.'' See id. at 59,459.
As discussed above, those terms are defined by the RPFJ to allow
Microsoft to avoid compliance altogether, because ``Microsoft
Middleware'' is defined absurdly narrowly and ``Windows
Operating System Products'' are defined as whatever Microsoft
wants them to be. See id. Microsoft's history makes clear that it
will simply evade this remedy by declining ever again to offer
middleware products separately from its operating systems (or at
least it will not assert trademark protection for them). Second, the
interface definitions fail to articulate an objective standard for
evaluating Microsoft's compliance. To date, Microsoft has never
admitted that it has withheld interface information to competitors;
instead it points to volumes of information it provides to
independent developers through its Microsoft Development Network
(MSDN). Meanwhile, it is obvious to competitors and independent
observers that while Microsoft has often published interface
information that allows competing products to work with Microsoft's
operating system products, it frequently refuses to publish
information that allows competing products to work well with
Microsoft's products or in the same way as Microsoft's products.
Indeed, Microsoft has notoriously allowed its own programmers and
developers to access and rely upon secret or unpublished APIs,
calls, or other interface information to assure full
interoperability of its products, while forcing competitors to use
only limited sets of information that allow for
``interoperability''--;but only in inefficient and
constrained ways.12 Nothing in the RPFJ clearly prohibits Microsoft
from disclosing selective interface information that provides for
limited interoperability. Indeed, paragraph E. of the RPFJ makes
clear that Microsoft need not offer any better
``Documentation'' than it does at the present time. See
id. at 59,458. For all the foregoing reasons, the information
currently available has proven grossly inadequate to allow for
meaningful competition. See id.
2. Too Late Disclosure: The RPFJ's Inadequate Definition of
Timeliness The RPFJ acknowledges that disclosures of interface
information must be sufficiently timely to enable competing
providers of middleware to develop alternatives in a commercially
reasonable time frame. The CIS explains: Whenever Microsoft develops
an updated version of a Windows Operating System Product, it must
disclose all relevant APIs and Documentation in a Timely Manner,
meaning at the time Microsoft first releases a widespread beta test
version of that
12 See, e.g., Jesse Berst, APIs: Microsoft's Hidden Full Nelson,
ZDNet (Jun. 28, 2000), available at http://www.zdnet.com/anchordesk/
stories/story/0,10738,2595479,00.html (visited Jan. 22, 2002); Sven
B. Schreiber, Undocumented Windows 2000 Secrets: A Programmer's
Cookbook (2001); Prasad Dabek, Sandeep Phadke & Milind Borate,
Undocumented WindowsNT (1999).
Windows Operating System Product (i.e., one made available to
150,000 or more beta testers). If, alternatively, Microsoft develops
a new major version of Microsoft Middleware, it must disclose any
APIs and Documentation used by that middleware to interoperate with
any Windows Operating System Product not later than the release of
the last major beta version of that middleware (i.e., the version
before the release of any release candidate version of the
middleware). This dual-timing trigger mechanism is important to
ensure that ISVs and other third parties learn of all relevant APIs
and the information needed effectively to use them well in advance
of the actual commercial releases of the relevant Microsoft
software, so that the third parties can ensure that their own
competing products function on and interoperate with Windows. CIS,
66 Fed. Reg. at 59,468 (emphasis in original).13
Notwithstanding the wishful (and unrealistic) analysis of the
CIS, the language of the RPFJ fails to offer any meaningful
assurance of timeliness. The specified date for release of interface
information for new middleware products is the last
``beta'' release, which is typically very shortly before
the final version of the software is released to the public. Such
beta releases are generally made a year or a year and a half after
early code is provided to Microsoft operating systems and
applications developers. In effect, under current practices the
proposed finding would allow Microsoft to give its own middleware
developers a year and one-half head start over competitors.
In fact, the head start the RPFJ affords Microsoft is likely to
be far longer (or even infinitely long). By triggering the
disclosure obligation on the date of the ``last'' beta
release that includes at least 150,000 testers, the RPFJ would, once
again, allow Microsoft to decide if and when (if ever) the
disclosure obligation would take effect. Nothing in the RPFJ would
prevent Microsoft from delaying the ``final'' beta release
for more than a year and a half, or even from deciding to test new
software exclusively in stages released to groups of less than
150,000 testers.
13 The RPFJ defines ``Timely Manner'' for disclosure
of interface information as ``the time Microsoft first releases
a beta test version of a Windows Operating System Product that is
distributed to 150,000 or more beta testers.'' RPFJ, 66 Fed.
Reg. at 59,459.
[[Page 28667]]
3. The RPFJ's Security Loophole Precludes Meaningful Relief The
RPFJ has been described as Swiss cheese without the cheese. Of the
numerous loopholes and deficiencies of the RPFJ, none is larger than
the broad and general exclusion it affords Microsoft for
``security'' information, as follows:
J. No provision of this Final Judgment shall:
1. Require Microsoft to document, disclose or license to third
parties: (a) portions of APIs or Documentation or portions or layers
of Communications Protocols the disclosure of which would compromise
the security of a particular installation or group of installations
of anti-piracy, anti-virus, software licensing, digital rights
management, encryption or authentication systems, including without
limitation, keys, authorization tokens or enforcement criteria; or
RPFJ, 66 Fed. Reg. at 59,455-;56.
DoJ attempts to justify this security exception on grounds that
``[it] is a narrow exception, limited to specific end-user
implementations of security items such as actual keys, authorization
tokens or enforcement criteria, the disclosure of which would
compromise the security of ``a particular installation or group
of installations'' of the listed security features.'' CIS,
66 Fed. Reg. at 59,472. In fact, this exception is fatal to the
efficacy of the RPFJ. Much of what software developers like Novell
need in order to develop products that efficiently interoperate with
Microsoft Windows products is now being encrypted by Microsoft.
Under the rubric of security, Microsoft harms interoperability
by manipulating the encryption, signing or tagging of calls made
between its operating systems and middleware. Encrypted or signed
calls made by Microsoft's operating systems can be seen by competing
middleware, but either cannot be read by them or the calls cannot be
executed properly and with full function. Calls made by competing
server operating systems are rejected by Microsoft's products
because they are not encrypted or signed in the Microsoft way.
Microsoft, for example, now encrypts information exchanged between
its directory service (Active Directory) and its operating systems.
The effect of such ``security'' is to prevent Novell's
eDirectory or other directory services from replacing Active
Directory in a network. Even if Novell discovers, or is provided
with, the interfaces between Active Directory and Windows,
Microsoft's encryption of the information exchanges will effectively
prevent the use of an alternative directory service. This tactic,
moreover, could be replicated wherever middleware exchanges
information, or calls, with Windows. Although encryption or signing
of calls may, in fact, promote security, there is no legitimate
reason for such security methods to harm interoperability. In
simplest terms, information security is generally afforded by
encrypting or ``locking up'' sensitive information and
safeguarding the ``keys'' to those locks. Rather then
relying on well established technologies to protect the
``keys'' to sensitive information, Microsoft routinely
prevents competitors from using the same types of locks that its
uses for its own products. This tactic unnecessarily inhibits
interoperability, because information security invariably depends
not on the type of lock that is used (since a variety of tamper-
proof locks have been developed), but solely on protection of the
keys.14 Microsoft routine ignores such distinctions to enable it to
harm interoperability under the rubric of security.
In sum, the ``security'' exception to the RPFJ harms,
rather than protects, the public interest. As interpreted by
Microsoft, the exception will enable it to withhold information that
is irrelevant to securing networks from hacking, viruses and the
like, but highly relevant to securing networks from meaningful
competition.
4. The RPFJ's Inadequate Disclosure Requirements Precludes
Protection of the Public Interest
As recognized in the CIS and DC Circuit Court opinion, Microsoft
has prevented competitors from offering meaningful Middleware
alternatives in three main ways: (1) Microsoft has taken advantage
of the fluidity of software to continually reconfigure its products
in ways that make it difficult or impossible for even superior
middleware offerings of competitors to remain viable; (2) Microsoft
has refused to disclose interface information that
One of the most remarkable aspects of modern encryption
technology is that it allows for virtually complete security of a
``key'' needed to unlock an encrypted message. In the
world of physical locks and keys, a key is never entirely secure
(even if it is never shared), because a locksmith can reproduce a
key if he or she is given the lock. By contrast, in the world of
bits and bytes, modern encryption can prevent a ``key''
from being copied, even if an expert knows how the key was made and
is given the locked (i.e., encrypted) message.
would enable competitors to offer middleware products that
operate effectively; and (3) Microsoft has engaged in coercive sales
and marketing tactics that force distributors and consumers to favor
even inferior Microsoft products over those of competitors. See CIS,
66 Fed. Reg. at 59,461.
Microsoft's refusal to disclose meaningful and timely interface
information has been especially damaging to competitors, like
Novell, who have repeatedly demonstrated their ability to develop
superior alternatives to Microsoft products in the increasingly rare
instances in which they have been able to obtain, or ascertain on
their own, the critical interface information that allows for the
effective interoperation of their middleware with Microsoft
operating systems. As a result, the public is denied the benefits of
innovation and the opportunity to choose among competing
alternatives.
The CIS recognizes that meaningful disclosure of interface
information by Microsoft is essential to effective relief. The CIS
explains: ``[T]he effect of Section III.D [of the RPFJ] is to
assure to Non-Microsoft Middleware meaningful access to the same
services provided by the operating system as those available to
Microsoft Middleware. Microsoft Middleware will not have access to
any hidden or proprietary features of Windows Operating System
Products that might allow it to operate more effectively.'' Id.
at 59,468. Unfortunately, the RPFJ again fails to deliver on DoJ's
purported goal.
In contrast to the RPFJ, a meaningful remedy must account for
the fact that Microsoft manipulates interface information in a
variety of ways to preclude competition. Although too numerous to
recount, Microsoft's tactics include: ? ``Secret
Interfaces''--;Microsoft does not publish all the
interfaces it uses and does not publish all the interface
information that others need to develop products that interoperate
with Microsoft software. ? ``Crippled
Interfaces''--;For some functions, Microsoft publishes
information about an interface that is inferior to the interface
that Microsoft itself uses to accomplish a function, or publishes
incomplete information about an interface.
``Kick Me Interfaces''--;Sometimes, Microsoft
publishes information about an interface that Microsoft uses to
perform a function, but it ``marks'' non-Microsoft
software in a way that assures the interface will operate in an
inferior way. Microsoft can ``mark'' competitors software
through tagging, signing, encrypted passwords, or by noting the
absence of such features. ? Moving Interfaces--;If, by some
means, a third party has been able to obtain adequate interface
information that Microsoft doesn't want it to have, Microsoft will
simply move the interface. For example, Novell successfully figured
out how to enable its directory services software to interoperate
with Windows NT. To counter Novell's success, in Windows 2000
Microsoft broke up and moved the computer files containing the
interface information used by Novell and marked, or signed,
information required for the interfaces so that Novell could neither
use Microsoft's interface information nor replace it.
The typical result of such tactics is that Microsoft makes
competing products appear inferior to Microsoft's products.
Microsoft's actions may make a competing product appear slower,
require more memory, or perform with limited functionality. These
tactics also enable Microsoft to persuade customers to buy
Microsoft's inferior and/or more expensive products simply to avoid
Microsoft's roadblocks.15
15 Perhaps most remarkable, is the arrogance with which
Microsoft exploits its anticompetitive efforts to impede
interoperability. Microsoft, for example, repeatedly issues
marketing materials that criticize products offered by Novell and
other competitors for technical problems cause by Microsoft's
refusal to allow effective interoperability with Windows.
Thus, in 1998, Microsoft's Website criticized Novell's directory
services product, NDS for NT, because ``[i]t is not integrated
with the operating system.'' Further, Microsoft proclaimed that
Windows NT is ``successful,'' because ``customers
have found that Windows NT Server suits most of their needs now and
they are confident that Microsoft will deliver on other
functionality that they need in the near future. Such is the case
with directory services.'' In other words, in 1998, Microsoft
admitted that it did not yet offer a competitive directory services
[[Page 28668]]
middleware product, but it aggressively discouraged customers from
using Novell's product based on interoperability limitations created
by Microsoft and its ``promise'' of improving its software
sometime in the future. See NDS for NT: Increases Complexity and
Cost Without Adding Value, available at Continued on following page
The remedy proposed by the Litigating States, in contrast to the
RPFJ, would prevent continued exploitation and manipulation of
critical interface information by Microsoft and thereby protect the
public interest. First, the Litigating States have proposed
definitions of interface information that clearly obligate Microsoft
to provide the same interface information that is made available to
its own programmers and developers to allow for ``full''
and ``efficient'' interoperability of products. See
States' Remedy at 31-;32. Further, the Litigating States''
proposal would provide for monitoring and review of Microsoft's
disclosure by creating a clean room in which qualified industry
representatives could examine and test the underlying computer code.
See id. at 11-;12. Second, the proposed remedy of the
Litigating States, in contrast to the RPFJ, would require
disclosures to be sufficiently timely to allow for meaningful
competition. The Litigating States define ``Timely
Manner'' to mean:
at a minimum, publication on a Web site accessible to ISVs,
IHVs, OEMs and Third-Party Licensees at the earliest of the time
that such APIs, Technical Information, or Communications Interfaces
are (i) disclosed to Microsoft's applications developers, or (ii)
used by Microsoft's own Platform Software developers in software
released by Microsoft in alpha, beta, release candidate, final or
other form, or (iii) disclosed to any third party, or (iv) 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. Id.
at 36-;37. Continued from previous page
http://www.strom.com/awards/98a.html (visited Jan. 13, 2002)
(republication of paper appearing on Microsoft's website until Jan.
22, 1998). Four years later, Microsoft's Active Directory is still
generally regarded as inferior to Novell's eDirectory, yet continues
to increase market share at Novell's expense as a result of
Microsoft's anticompetitive acts. See, e.g., Products of the Year,
Network Magazine (May 7, 2000), available at http://
www.networkmagazine.com/article/NMG20010413S0005 (visited Jan. 15,
2002).
Third, the Litigating States would close the gaping
``security'' loophole of the RPFJ by requiring disclosure
of information that allows competitors to participate with Microsoft
in security mechanisms without compromising security. C. The RPFJ
Will Encourage Microsoft To Continue To Corrupt Industry Standards
for Anticompetitive Purposes Although the DC Circuit expressly held
that Microsoft acted to protect its monopoly through undermining
industry standards by deceiving software developers, the RPFJ fails
to address this concern at all. Industry standards are often the key
to interoperability among products that must communicate with each.
Time after time, Microsoft has undermined or corrupted such
standards to prevent competing middleware products from
interoperating effectively with its dominant operating systems. For
example, Kerberos is an industry standard for encryption, in which
certain fields are reserved for optional use. Microsoft, however,
has used one of those fields to produce its own proprietary version
of the standard. In itself, this is unobjectionable. Microsoft,
however, has gone one step further: it has manipulated its operating
systems and middleware so that they will use and accept only the
Microsoft version of the Kerberos standard.16 This is diametrically
contrary to the purpose for which standards, even with optional
fields, are developed. Optional fields are included in standards to
enable firms to add information to a message. Ordinarily, if an
optional field is used in creating standard messages, those messages
can still be sent and received among all products that comply with
the standard. In such cases, the information included in the
optional field may simply be ignored. Optional fields are never,
however, intended to enable a firm--;i.e., Microsoft--;to
subvert the standard and preclude its widespread usage.
The CCIA explains that ``[w]hile the Kerberos Version 5
Microsoft uses for their security services is a standard, the way
they have implemented Kerberos is not a standard and renders it
nearly inoperable with any other implementation.'' CCIA White
Paper, supra, at 24.
Not content with Microsoft's corruption of the Kerberos
standard, Microsoft has filed for a patent on its proprietary
version. Consequently, not only will Microsoft products fail to
interoperate with non-Microsoft products (because of the
modification), but Microsoft will not allow anyone else to use its
version unless they purchase a liscense from Microsoft.
Thus, by polluting industry standards, such as Java and Kerberos
(among others), Microsoft can further impede the use and development
of competing middleware. Any calls encrypted with Kerberos sent by
Microsoft Windows can be read only by other Microsoft Middleware and
not by Novell's middleware. Similarly, Novell's middleware cannot
send calls encrypted with Kerberos (the industry standard), because
Windows will reject them. In contrast to the RPFJ, the remedy
proposed by the Litigating States addresses the problems created by
Microsoft's manipulation of industry standards in two complementary
ways. First, by requiring meaningful disclosures of interface
information, the Litigating States would effectively impair
Microsoft's ability to corrupt third party standards
surreptitiously. Second, the Litigating States' proposal would
expressly preclude Microsoft from misrepresenting its compliance
with industry standards or imposing proprietary (i.e., Microsoft-
owned) versions of such standards on the industry. See States'
Remedy at 20-;21.
D. The RPFJ Will Encourage Microsoft To Continue To Use Coercive
Licensing Practices to Exclude Competition As recognized in the
RPFJ, Microsoft has a long history of imposing coercive contracts
and conditions on its customers to inhibit their ability to buy or
sell competing products. See RPFJ, 66 Fed. Reg. at 59,453-;55.
Once again with myopic vision, the RPFJ ignores the full scope of
Microsoft's abusive contracts. Specifically, the RPFJ addresses only
Microsoft's arrangements with intermediary technology vendors like
OEMs. See id. Microsoft, however, has redirected its muscle at
direct purchasers of its software. Microsoft, for example, forces
networking customers to purchase Client Access Licenses or
``CALs.'' A CAL is merely one example of coercive licenses
directed at users, rather than intermediaries. In connection with
Windows 2000, Microsoft began to require customers to purchase a CAL
whenever the customer uses a device that authenticates (i.e.,
identifies) itself and its relation to other elements of the network
with Microsoft's Active Directory middleware. In other words, in
addition to requiring users to purchase a license for using Windows
2000 on Continued from previous page will not allow anyone else to
use its version unless they purchase a license from Microsoft.
server, Microsoft also requires users to purchase enough CALs to
cover the maximum level of devices that will have concurrent access
to that server. The beauty of a CAL, from Microsoft's standpoint, is
that it raises prices for Microsoft software, while at the same time
raising the costs to users of using non-Microsoft middleware. The
Gartner Group explains: The most significant pricing increase for
enterprises using Win2000 will come from Microsoft's licensing
change requiring CALs for all authenticated users. This is
considerably broader than Microsoft's previous CAL requirement with
Windows NT v.4. The most common scenario for increased costs will
involve users of Microsoft's Exchange using Novell for NOS [Network
Operating System] services. These users will typically see Win2000
server and CAL fees increase five to eight times over their current
server and CAL fees. Previously, users of Exchange were not required
to Purchase an NT CAL. However, since all versions of Exchange
require NT authentication [provided by Active Directory] these users
will be required to purchase Win2000 CALs regardless of whether they
use another vendor's NOS services. This, in effect, makes the use of
Microsoft's NOS services free as compared to other NOSs. The
situation is exacerbated by Microsoft's server logo program
requirement that certified applications must, at a minimum, support
Windows 2000 authentication--;a move that increases the number
of scenarios in which CALs will be required.
Furthermore, by broadening authentication to include
applications ``indirectly'' using Win2000 sign-on
services, uses of products that tap into Microsoft's security APIs
(e.g., Novell's NDS for NT) must purchase CALs where they were not
charged before.
See Win2000 Licensing: Raising Prices, Squeezing Competitors,
Gartner Group (Feb. 16, 2000) (italics in original) (boldface
added).
Microsoft's CAL licensing policy forecloses competition and
reduces consumer choice, because it forces customers to pay
Microsoft, even if they prefer to use non-Microsoft
[[Page 28669]]
middleware. For example, if a customer has fifty personal computers
attached to a network composed of nine Novell servers and one
Windows XP server, and the customer uses Microsoft's dominant email
software, ``Exchange'' (or any other software that
authenticates to Active Directory), then the customer will need to
buy fifty CALs from Microsoft--;even if the customer would
prefer to use Novell's eDirectory for all authentication services.
Why ? Because the customer has no choice: (1) Microsoft bundles
Active Directory with Windows 2000 and Windows XP; (2) Microsoft has
technologically prevented Novell's eDirectory from replacing Active
Directory to provide authentication services for Microsoft products
like Exchange; and, therefore (3) virtually all network devices
require ``access'' to Active Directory which must be paid
for under a Microsoft CAL!
Further, the CAL policy coerces customers into replacing all
server software with Microsoft software. Otherwise, the customer
will be forced to pay a substantial tax to Microsoft simply to be
able to use a competitor's networking software. In the foregoing
example, the customer would need to pay for fifty CALs regardless of
the number of its ten servers that it converts to Windows XP or
Windows 2000. Because Microsoft loads the bulk of pricing into the
CALs, rather than into software licenses for its server software,
the net effect of this strategy is make it prohibitively expensive
for customers to continue to operate servers with non-Microsoft
software, such as Novell's NetWare and/or eDirectory, even if they
would prefer to do so. In many instances, Microsoft's strategy would
effectively force a customer to pay twice for networking software if
it had the temerity to rebuff Microsoft by insisting on using a
competitor's networking middleware, rather than Windows 2000 or
Windows XP (and Active Directory).
The significance of CALs in the overall cost to customers is
shown by Microsoft's own estimated retail prices. Microsoft
estimates that the Windows 2000 Server license sells at around
$799.18 This is also the price of twenty CALs. Thus, using
Microsoft's own estimates, as soon as the customer has more than
twenty client PCs, the cost of the CALs is greater than the cost of
the server license itself. Most enterprises will use far more than
twenty client PCs in a network and the greater the number of client
PCs, the greater the relative significance of CALs to the customer's
overall cost. As a result, customers with large networks are
essentially forced to pay for Microsoft's server software, whether
or not they prefer that software or even use it. Eventually,
however, many customers simply cannot afford to pay the tax imposed
by Microsoft for using even superior networking software offered by
its competitors.
The server license and five CALs is shown as costing $999 in
Windows 2000. See Microsoft Windows 2000 Pricing and Licensing,
available at http://www.microsoft.com/ Windows2000/server/howtobuy/
pricing/ (visited Jan. 10, 2002). The cost of five CALs is shown
separately as $199. Thus the server license is around $799 and each
CAL is around $40. This is consistent with the prices shown for the
server license and ten CALs ($1,199--;$799 plus 10 x $40), for
the server license and 25 CALs ($1,799--;$799 plus 25 x $40) and
for a 20 CAL pack ($799--;around 20 x $40).
In sum, Microsoft has repeatedly devised coercive licenses that
raise costs to users of non-Microsoft products. The ability of
consumers to avoid CALs is ever diminishing as more and more
applications that authenticate only to Active Directory are
aggressively promoted by Microsoft. By changing the way it charges
for CALs in recent versions of Windows, Microsoft assures
``that it makes more money while making it difficult to cost-
justify the use of alternative vendors'' products.''
Win2000 Licensing, Gartner Group, supra. Here again, the RPFJ gives
Microsoft a mandate to monopolize by limiting one set of coercive
licensing practices while condoning another.
E. The RPFJ Would Fail to Protect the Public Interest, Because
It Fails To Adopt An Enforcement Regime That Discourages Non-
Compliance By Microsoft The RPFJ's enforcement provisions, while
elaborate and creative, fail to ensure Microsoft's full and timely
compliance with its obligations. The RPFJ fails to impose meaningful
time limits on enforcement proceedings, it fails to threaten
adequate sanctions to deter Microsoft from ignoring its duties, and
it fails to appoint a Special Master to facilitate enforcement.
These failings virtually guarantee Microsoft's non-compliance.
In failing to impose time limits on enforcement review and
resolution, the RPFJ will allow complaints against Microsoft to
languish. Under the RPFJ, a complaint would require an investigation
by the DOJ to be followed, to the extent appropriate, by judicial
proceedings before this Court. Any enforcement matter before the
Court would be complex, even with the able assistance of the
Technical Committee. As those investigations crept along, Microsoft
would persevere. The history of this action shows that Microsoft
sees no reason to take a ``time out'' during periods of
antitrust review. Indeed, Microsoft effectively used the time since
the entering of the consent decree to complete its annihilation of
Netscape's threat to its monopoly.
As in its campaign against Netscape, by the time any sanctions
under the RPFJ are imposed, challenged conduct will have long since
taken its toll and Microsoft will have already repositioned its
monopolistic artillery. Given Microsoft's history of thumbing its
nose at the antitrust laws, any remedy must include severe penalties
for non-compliance. Absent powerful deterrents, any final judgment
in this case will have no more influence over Microsoft than the
Treaty of 1839 had over Germany when it decided to invade Belgium in
1914. German Imperial Chancellor Theobald von Bethmann-Hollweg, in
an August 4, 1915 conversation with Sir Edward Goschen, British
Ambassador to Germany, characterized the Treaty, which guaranteed
Belgian neutrality and which had been signed by Germany, as a scrap
of paper, at the very time that the Imperial German Army had begun
its invasion of Belgium. Sir E. Goschen, Report to Sir Edward Grey,
British Foreign Secretary, 1914, available at http://
library.byu.edu/rdh/wwi/1914/ paperscrap.html (visited Jan. 18,
2002).
The enforcement provisions proposed by the Litigating States are
far more likely to disarm Microsoft than the RPFJ. Under the
proposal of the Litigating States, a Special Master would be
required to conduct prompt investigations of any complaints and to
propose resolutions within the short time frame necessary to be
meaningful in such a fast-moving market. See States' Remedy at 24.
The proposal of the Litigating States contains strict time limits
for investigating and resolving any third-party complaints. See id.
at 26-;27. The Litigating States' enforcement provisions,
moreover, would impose severe penalties on Microsoft in the event it
perpetuates its monopolist campaign. See id. at 28-;29.
III. Legal Standards A. In Evaluating the Proposed Final
Judgment and the Public Interest, the Court Must Consider
Microsoft's Status as a Defendant That Has Already Been Found to
Have Abused its Monopoly Power
The Tunney Act was intended as a safeguard to ensure that
antitrust consent decrees were within ``the public
interest.'' The Act provides procedural requirements for
publication of proposed consent decrees in the Federal Register and
provides a sixty day comment period during which any person may file
written comments to the consent decree. The government is required
to respond to any filed comments. Tunney Act, 15 U.S.C. 16(b)-(d).
As one commentator has noted, ``[t]hese procedural provisions
were designed to satisfy two of the three major criticisms of prior
practice by opening up the process to participation by interested
third parties and by requiring the government to reveal its
justifications for settling the case on the terms provided in the
consent decree.'' Lloyd C. Anderson, United States v.
Microsoft, Antitrust Consent Decrees, and the Need for A Proper
Scope of Judicial Review, 65 Antitrust L.J. 1, 9 (Fall 1996).
The Tunney Act further provides that a district court may only
approve a proposed consent decree if it is in ``the public
interest.'' The Act lists the following factors which may be
considered by a district court: (1) the ``competitive
impact'' of the decree; (2) provisions for enforcement and
modification of the decree; (3) the duration of the decree; (4) the
anticipated effects of alternative remedies; and (5) ``any
other considerations bearing upon the adequacy of such
judgment,'' as well as ``the impact of the entry of such
judgment upon the public generally.'' 15 U.S.C. 16(e).
Since the Tunney Act was enacted in 1974, courts have used
varying standards to evaluate consent decrees under the Act based in
large part on the posture of the case at the time the consent decree
was entered. See, generally, Anderson, supra. In cases in which the
consent decree and DoJ complaint were filed simultaneously, and no
evidence was introduced concerning the allegations in the complaint,
the court's Tunney Act review was extremely limited. See United
States v. Microsoft, 159 F.R.D. 318 (Sporkin, J.) (D.DC 1995), rev'd
56 F.3d 1448 (DCCir. 1995) (``Microsoft I'').19 In cases
in which
[[Page 28670]]
substantial evidence was adduced at trial before the consent decree
was entered, the court's ``public interest'' determination
19 In this instance, Microsoft will no doubt argue that this Court
has limited authority to review the Proposed Final Judgment based,
in large part, on the DC Court of Appeals'' decision
overturning Judge Sporkin's ruling which rejected the proposed
consent decree entered by DoJ in Microsoft I. Rather than
undermining the District Court's authority here, Microsoft I
demonstrates the critical importance of a fact-based review of the
RPFJ. Although the Court of Appeals rejected Judge Sporkin's
decision in Microsoft I, its grounds for reversal are inapplicable
here. Further, the Court of Appeals emphasized in Microsoft I that a
``court may (1) insist upon correction of ambiguous provisions,
(2) require adequate implementation provisions, (3) consider injury
to third parties, and (4) reject decrees that ``make a mockery
of judicial power.'' Anderson, supra, at 17; Microsoft I, 56
F.3d 1448, 1461-;62.
Judge Sporkin's decision to reject the proposed decree in
Microsoft I was overturned, because his decision had no grounding in
the record of the case. Rather than consider only the complaint and
decree (the only record before him), Judge Sporkin improperly based
his decision on facts alleged in a book about Microsoft. Id. at
1453. Neither the book, nor the claims asserted in the book, were
properly before the court, and Judge Sporkin's decision to rely on
such an extraneous source of information was roundly rejected by the
Court of Appeals. In reversing Judge Sporkin's decision, the DC
Court of Appeals'' emphasized that Judge Sporkin's reliance on
such information amounted to unconstitutional usurpation of the
Attorney General's role. Id. See also Anderson, supra, at 34. was
significantly more in-depth based largely on the district court's
evaluation of the record before it. See, e.g., United States v.
A.T.&T, 552 F. Supp. 131 (D.DC 1982) (AT&T).20 Here, in
contrast to Microsoft I, there is a robust evidentiary record that
must be considered if the Court is even to contemplate accepting or
modifying, rather than rejecting outright, the RPFJ. Indeed, the
principle reason that the Court of Appeals remanded this case was to
assure that the remedy imposed on Microsoft was consistent with the
facts established at trial. In the absence of a meaningful review of
the facts of this case (including the judgment against Microsoft),
and implications of the proposed remedy on the public interest, the
Court's proper role under the Tunney Act will not be fulfilled. In
fact, this case requires a far more detailed review under the
``public interest'' standard than was undertaken by Judge
Greene in the AT&T case.
In that case, the Court, as here, was asked to consider the
propriety of a proposed consent decree issued after trial commenced
and extensive evidence was presented. Foreshadowing the issue
squarely before this Court, Judge Greene explained that evaluation
of a settlement prior to a finding of liability is a different
analysis than ``fashioning a remedy as it would be upon a
finding of liability.'' AT&T, 553 F. Supp. 131, 151
(emphasis added). Judge Greene further stated:
It does not follow from these principles, however, that courts
must unquestioningly accept a proffered decree as long as it
somehow, and however inadequately, deals with the antitrust and
other public policy problems implicated in the lawsuit. To do so
would be to revert to the ``rubber stamp'' role which was
at the crux of the congressional concerns when the Tunney Act became
law. This consideration is especially potent in these cases for
several reasons.
Id. at 151.
Judge Greene explained, moreover, that the consent decree in
AT&T required ``more than normal scrutiny'' because of
the size of AT&T, the complexity of the proposed 20 It is
important to note that the DC Court of Appeals in Microsoft I
clearly cites to the AT&T case as the most prominent post-Tunney
Act case, without ever overruling that case. See Microsoft I, 56
F.3d at 1458, et. seq.
decree, the ``potential for substantial private advantage
at the expense of public interest,'' and the ``potential
impact of the proposed decree on a vast and crucial sector of the
economy.'' Id. at 151-;52. Further, Judge Greene noted
that although ``courts would generally not be able to render
sound judgments on settlements because they would not be aware of
the relevant facts . . .,'' that concern was not relevant in
the AT&T case because the district court ``already heard
what probably amount[ed] to over ninety percent of the
parties'' evidence both quantitatively and qualitatively, as
well as all of their legal arguments.'' Id. at 152.
Also relevant here, Judge Greene emphasized that greater
scrutiny was required because of the ``unfortunate''
history in the prior AT&T actions and settlement: The 1956
Western Electric consent decree that identical settlement, and the
identical parties, are now before the Court. Nor can those events
simply be dismissed as ancient history, irrelevant to the events of
1981- 82 These circumstances do not foster a sense of confidence
that the assessment of the settlement and its implications may be
left entirely to AT&T and the Department of Justice.
None of this means, of course, that the Court would be justified
in simply substituting its views for those of the parties. But it
does mean that the decree will receive closer scrutiny than that
which might be appropriate to a decree proposed in a more routine
case. Id. at 153.
Based on such concerns, Judge Greene held that the appropriate
standard of review under the Tunney Act in such cases is to assure,
as a factual matter, that the decree will protect the public
interest. He explained: If the decree meets the requirements for an
antitrust remedy--;that is, if it effectively opens the relevant
markets to competition and prevents the recurrence of
anticompetitive activity, all without imposing undue and unnecessary
burdens upon other aspects of the public interest--;it will be
approved. If the proposed decree does not meet this standard, the
Court will follow the practice applied in other Tunney Act cases
and, as a prerequisite to its approval, it will require
modifications which would bring the decree within the public
interest standard as herein defined. AT&T, 553 F. Supp. at 153.
Judge Greene's reasoning in the AT&T case applies with even
greater force to the case at hand. Here, as in AT&T, Microsoft
and DoJ previously entered into a consent decree (Microsoft I) which
was summarily approved and which, in part, enabled Microsoft to
engage in the prohibited conduct in violation of the Sherman Act
which is at issue in this case. Here, as in AT&T, Microsoft and
DoJ conducted a full trial on the merits. Here, as in AT&T,
close scrutiny of the decree is imperative, because of the size and
strength of Microsoft, the complexity of the remedies at issue in
this case, the clear ``potential for substantial private
advantage at the expense of public interest,'' and the
``potential impact of the proposed decree on a vast and crucial
sector of the economy.'' Id. at 151-;52. Unlike the
AT&T case, however, here Microsoft has already been adjudged to
have abused its monopoly power and it is incumbent upon this Court,
in reviewing the RPFJ, to determine whether Microsoft's confirmed
antitrust liability is sufficiently addressed to protect the public
interest.
In sum, Microsoft, and relief from its pervasive abuse of
monopoly power, are far too important to allow this proceeding to
serve merely to ``rubber stamp'' a remedy negotiated
behind closed doors. To do so, would render the Tunney Act utterly
meaningless. Equally important: Microsoft has already been found
liable for violating Section 2 of the Sherman Act. The remedies now
proposed by DoJ and Microsoft are far less exacting than the
remedies initially proposed by either Microsoft or DoJ, are far more
lenient than the original remedies fashioned by the district court,
and, if adopted would make a ``mockery'' of the legal
process. See Microsoft I, 159 F.R.D. at 318.
B.If the Court Does Not Reject the RPFJ Outright, It Should At a
Minimum Await the Outcome of the Hearing on the Litigating States'
Proposed Remedies Before Ruling on the Adequacy of the RPFJ For all
the reasons discussed supra, Novell believes that the RPFJ is so
blatantly inadequate and contrary to the public interest that it
should immediately be rejected out of hand. Cf., In re Microsoft
Corp. Antitrust Litigation, MDL 1332, Slip Op., Motz, D.J. (D.Md.
Jan. 11, 2002) (rejecting settlement of class action against
Microsoft in the absence of an factual record sufficient for
assessment of the public interest). If the Court declines to reject
the RPFJ based on the Tunney Act comments alone, then the Court must
undertake a rigorous legal and factual analysis to assess how
adoption of the RPFJ would affect the public interest.
Under the terms of the Tunney Act, in making such an analysis, a
court may:
(1) take testimony of Government officials or experts or such
other expert witnesses, upon motion of any party or participant or
upon its own motion, as the court may deem appropriate;
(2) appoint a special master and such outside consultants or
expert witnesses as the court may deem appropriate;
(3) authorize full or limited participation in proceedings
before the court by interested
[[Page 28671]]
persons or agencies, including appearance amicus curiae,
intervention as a party pursuant to Federal Rules of Civil
Procedure, examination of witnesses or documentary materials, or
participation in any other manner and extent which serves the public
interest as the court may deem appropriate;
(4) review any comments including any objections filed with the
United States under subsection (d) of this section concerning the
proposed judgment and the responses of the United States to such
comments and objections; and
(5) take such other action in the public interest as the court
may deem appropriate.
15 U.S.C. 16(f).
Because of the impending trial on the Litigating States''
proposed remedies, and the fact that Microsoft has chosen to proffer
the RPFJ as its own remedies proposal in that Litigating
States'' case, the record developed therein is likely to
obviate what would otherwise be the clear need for a full
evidentiary hearing if the court were even contemplating adoption or
modification the RPFJ. Novell respectfully suggests that, in lieu of
holding a separate Tunney Act hearing, this Court refrain from
ruling on the RPFJ until the conclusion of the hearing in the
Litigating States'' case. In that way, the Court will have the
opportunity, after a full exposition of the relevant facts, to order
a single remedy in the public interest.
IV. Conclusion
To protect the public interest, antitrust relief must look not
only backwards at past unlawful conduct, but also forward at
foreseeable risks. An antitrust remedy must ``unfetter a market
from anticompetitive conduct,'' Ford Motor Co. v. United
States, 405 U.S. 562, 577 (1972), and ``terminate the illegal
monopoly, deny to the defendant the fruits of its statutory
violation, and ensure that there remain no practices likely to
result in monopolization in the future.'' United States v.
United Shoe Mach. Corp., 391 U.S. 244, 250 (1968); see also United
States v. Grinnell Corp., 384 U.S. 563, 577 (1966). The RPFJ fails
this test. Indeed, the RPFJ even ignores Microsoft's aggressively
anticompetitive past.
Microsoft has persistently manipulated interface information to
cut lines of mooring between the middleware of its competitors and
its own monopoly operating systems and to repel any incursions onto
the beachfront of competition. Microsoft moreover, has cynically
sought to recast its malevolent monopolization as the harmless
development of ``integrated products'' under the
``Windows'' name. In spite of this well-documented
history, the RPFJ replenishes Microsoft's arsenal of technological
knives and linguistic camouflage and encourages it to develop
additional anticompetitive weaponry in its assault on the public
interest.
Much has been made of the fact that, at the end of the
negotiations that resulted in the Proposed Final Judgment, it was
Microsoft's counsel, Charles F. Rule, a former Assistant Attorney
General for Antitrust in the second Reagan Administration, and
Charles James, the current head of DoJ's Antitrust Division, who
hammered out the final provisions of the settlement now before this
Court. This was the very same Charles Rule who, testifying before
Congress in 1997, reminded the Senate Judiciary Committee that
ambiguities in consent decrees are typically resolved against the
Government (and, assumedly, against the public interest, which the
Government should represent) and that, in interpreting a decree
later, the Government cannot fall back on some purported `spirit' on
`purpose' of the decree to justify an interpretation that is not
clearly supported by the language.'' Charles F. Rule Testimony,
supra at 3. If this Court does not act to reject this settlement,
for Microsoft it will be ``been there, done that;'' for
the rest of us, it will be ``dij? vu all over again.'' For
the foregoing reasons, Novell respectfully requests that the Court
reject the RPFJ as contrary to the public interest.
Respectfully submitted,
--;/s/--;
OF COUNSEL:
Joseph A. LaSala, Jr.
Senior Vice President, General Counsel
NOVELL, INC.
8 Cambridge Center
Cambridge, MA 02142
(617) 914-;8169
Judith L. Harris (DC Bar No. 190579)
REED SMITH LLP
1301 K Street, NW
Suite 1100 East Tower
Washington, DC 20005-;3317
(202) 414-;9276
Ryan Richards
Associate General Counsel
NOVELL, INC. 1800
South Novell Place
Provo, Utah 84606
(801) 861-;7000
Gary L. Kaplan (DC Bar No. 391616)
REED SMITH LLP
435 Sixth Avenue
Pittsburgh, PA 15219-;1886
(412) 288-;4268
Counsel for Novell, Inc.
Dated: January 28, 2002
MTC-00029524
From: Brian Snider
To: Microsoft ATR
Date: 1/29/02 1:59am
Subject: Microsoft Settlement
I've read the first half of the Complaint (5/18/1998), and the
latest proposed settlement to remedy the monopolistic behavior of
Microsoft. As a professional in the creative field, I will be
watching this case with baited breath, hoping to see Microsoft
brought to a real, long lasting justice.
Please remedy this matter in a way that seeds new hope for
competing software to flourish. Forcing Microsoft to re-introduce
Java into it's OS would be a good start, suspending their exclusive
relationships with OEM's would go a long way as well. Perhaps
forcing them to port their Office suite to the Linux OS would be the
ultimate way to shake things up.
I'm no lawyer, and even I can see the loopholes of the current
proposal that the remaining nine states are refusing to sign off on.
We need something CONCRETE!
Thank You,
Brian Snider
Seattle, WA
MTC-00029525
From: A.C. Ross
To: Microsoft ATR
Date: 1/29/02 2:05am
Subject: Microsoft Settlement
Grossly Inadequate
I would like to add my voice to those calling for a rejection of
the currently proposed DOJ settlement with Microsoft. Microsoft has
demonstrated time after time both that it is not reluctant to use
the monopoly power it was found guilty of wielding and that it is
entirely unrepentant since the decision was handed down.
I'm a management consultant in the computer software industry
and have been since the mid 1980s. My jobs in that period often
included working or negotiating with large and small software
companies who treated Microsoft's presence as the first major
marketing issue to address. Always, managers explicitly asked the
question, ``Can we survive long enough before Microsoft embeds
software like ours in Windows or ties Windows to it in some way to
squeeze us out of the market.'' Although some companies may
have lost their competitions through their own missteps, there are
others, going as far back as STAC, that competed well and won their
own court cases, only to be steamrolled by Microsoft's market power.
Transcripts from the trial show multiple instances of
Microsoft's outright efforts to illegally divide up markets (the
conversations over allocating non-Windows platforms to Netscape
noted by Marc Andreeson) and to tie access to the Windows operating
system to Draconian restrictions on the marketing decisions of
hardware platform vendors.
I don't want to reiterate arguments and proofs that have been
made in the press. My summary position starts with the fact that
Microsoft was found guilty in federal court. The terms of the
agreement are so tenuous and the remedies so weak that I have no
confidence whatsoever that Microsoft will feel the need to comply
with the spirit and will sail as close to the letter of the law as
possible. Its conduct will be entirely unchanged. Indeed, it has
clearly indicated that it does not agree with the decision, shows no
remorse for its actions, and is safely positioned to violate laws
until someone large enough has the resources to take them on.
Microsoft was found guilty, and the government is responsible
for setting and enforcing remedies. If you want to get Microsoft's
attention, you will have to define and enforce remedies that causes
them to change their behavior. The current remedies merely enforce
the public perception that a large corporation can buy its way out
of any legal difficulties. If the monopoly laws are to mean anything
in the future, you must enforce them, and you must make an example
of the important role the government plays in ensuring compliance.
Otherwise, we are not a nation of laws, but a nation for sale to the
highest bidder.
A.C. Ross
MTC-00029526
From: [email protected]@inetgw
[[Page 28672]]
To: Microsoft ATR
Date: 1/29/02 2:10am
Subject: Microsoft Settlement
To Whom It May Concern:
I am writing to express my concern over the settlement in the
Microsoft antitrust case.
I am a professional software engineer with over 12 years of
experience. During my time in industry, I have seen many promising
companies and products hindered by Microsoft's monopoly. Microsoft
has consistently shown a lack of regard for reliability and security
in their products.
I do not feel that the proposed settlement goes far enough. I
encourage you to reconsider the option of splitting Microsoft into
separate companies. Only then will it be possible for smaller
companies to compete.
Sincerely,
Peter DiMarco
Staff Software Engineer
Integrated Flow Systems
250 Technology Circle
Scotts Valley, CA 95066
MTC-00029527
From: Jim Macey
To: Microsoft ATR
Date: 1/29/02 2:09am
Subject: Microsofe Settlement
2603 Louisiana Street
Longview, WA 98632
January 28, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
I wanted to submit this letter to express my approval of the
Justice Department's settlement with Microsoft Corporation. I have
disagreed with the government's case from the beginning, but I see
this agreement as the best solution for all parties to declare
victory. Although it is hard to be a real monopoly when you have so
much competition trying to push their way into more market share
through the tool of litigation, not to mention a constituency of
millions of satisfied customers, Microsoft is taking several steps
to create a more dynamic software environment with this deal.
Hardware developers will have broader rights to configure Windows
with software that competes with Microsoft, and will benefit from no
contract restrictions on future distribution or promotion of Windows
products. The top 20 computer makers will also receive uniform
pricing for licensing Windows, to provide further incentives to
consider alternative software vendors and truly level the playing
field.
As these examples prove, this agreement is quite generous and
actually exceeds some of the government's demands. Microsoft is the
most dominant software player because they have earned it and
deserve to continue without further government interference. Hence,
I ask for your support.
Sincerely,
James M. Macey
[email protected]
MTC-00029528
From: Geoffrey Peck
To: Microsoft ATR
Date: 1/29/02 2:11am
Subject: Microsoft Settlement
January 28, 2002
Renata B. Hesse
[email protected]
Antitrust Division
U.S. Department of Justice
601 D Street NW Suite 1200
Washington, DC 20530-;0001
I am writing to you to suggest a possible set of restrictions on
the future conduct of business by Microsoft Corporation that would
prevent the company from continuing its aggressive and monopolistic
business practices in the rapidly developing computer industry.
While these restrictions may seem draconian, I believe that the
injury to other parties in the computer software industry has been
severe, and that Microsoft has used its dominant position not only
to compete unfairly in the marketplace, but also to stifle
innovation. I will keep my comments brief for your convenience.
1. Require full disclosure of all interfaces and software
elements. It is important that parties other than Microsoft have
full access to interfaces and internal characteristics of the
monopoly's software products. To make this effective, I propose that
Microsoft be required to release full development source code and
all internal documentation whenever it releases a product,
regardless whether that is a final product or a pre-release (alpha,
beta, and release candidate) version. This code shall be made
available at a reasonable price, not to exceed the end-user price of
one (1) copy of the software. Microsoft may make this source code
available under license that restricts the licensee's use of the
source code so that the licensee may not directly utilize
significant portions of the code to create products that are
essentially identical to Microsoft's own products.
Full, commented source code and complete documentation is the
only form of full disclosure that will truly enable competitors to
produce software that fully integrates with Microsoft's monopoly
operating system and desktop program suites.
Releasing specifications of interfaces at a point in time does
not affect Microsoft's ability to arbitrarily change these
interfaces in ways that make competitive or complementary products
noncompetitive or non-interoperable. For example, Microsoft's Common
Internet File System (CIFS) was a specification released by
Microsoft, but Microsoft has continued to change the messages sent
between computers so that maintaining a compatible interface such as
Samba is a difficult job, requiring substantial reverse engineering.
Another reason that full disclosure is required is that
Microsoft may choose to release only specific, partial information
on certain key interfaces. This information would allow a software
vendor to produce programs that perform arbitrary, specified
functions. A Microsoft version of a similar program might use a
``hidden'' interface that produces better performance, or
Microsoft's knowledge of the internal algorithms that underlie an
interface might allow it to utilize this supposedly public interface
in ways that an external developer could not.
2. Restrict Microsoft's purchase of other technology companies.
Microsoft often states that its most sincere desire is to innovate.
Unfortunately, the record shows that most of Microsoft's innovation
has come in the form of purchasing (or appropriating) technology
developed by others, applying its exceptional marketing muscle, and
then updating this acquired technology at an often-painfully slow
rate once Microsoft has established a comfortable market lead or
monopoly position. Examples of this behavior include:
* MS-DOS (acquired by license, Seattle Computer Products)
* Microsoft Windows (copied from Apple's Macintosh, in turn
derived from work at SRI and Xerox PARC)
* Microsoft Windows NT OS (and the newer XP OS) (appropriated
and then licensed from Digital Equipment Corporation)
* Microsoft Excel (copied from the original spreadsheet,
VisiCalc)
* Microsoft Internet Explorer (copied from Netscape Navigator)
* Microsoft FrontPage (company acquired)
* Microsoft PowerPoint (company acquired)
* Microsoft Visio (company acquired)
* Microsoft Hotmail (company acquired)
* Microsoft UltimateTV (company acquired)
To truly encourage innovation and reward that innovation in the
market, such acquisitions should be prevented. Microsoft should be
prohibited from acquiring more than 40% of any other company, public
or private, either directly or via one or more of its major
stockholders.
3. Require Microsoft to support at least one additional viable
alternative operating system on its desktop applications suite. Many
users are forced to purchase Microsoft operating systems because
they need to utilize Microsoft's Office Suite or a subset thereof.
If offered the choice of running these applications on a different
operating system such as Linux, many customers would be delighted to
opt for that choice.
Microsoft does offer some, but not all, of the Office
applications on the Apple Macintosh; however, given Apple's small
market share, the Macintosh Office Suite does not constitute a
significant fraction of the market. Microsoft should be required to
release a fully comparable version of its Office Suite products
(Access, Excel, FrontPage, Outlook, PowerPoint, Publisher, Word, and
supporting applications such as Photo Editor) on a widely-used Linux
distribution such as Red Hat. The first Linux version of these
applications must be made available within 120 days of the
conclusion of these proceedings, and subsequent versions must be
released at the same time as or before the Microsoft Windows version
of these programs. Retail, corporate, and OEM pricing for the Linux
version of these programs and packages shall not exceed the prices
for the same programs and packages on Microsoft Windows, and all
configurations of these programs and packages offered on Microsoft
Windows must be offered on Linux. Further, these Linux-based
products must be full and complete ports--;they cannot use a
Windows emulation
[[Page 28673]]
library and simply sit on top of Linux with poor interoperability
with other Linux tools.
4. Compensate past purchasers of Microsoft software for the
overcharging that was made possible by Microsoft's monopoly and
tying practices. I believe that direct financial compensation via
actual monetary payment (no coupons, no rebates on future purchases)
would be the most equitable solution. If a user registered one or
more product(s) with Microsoft, those records can be used to make
payment to the original purchasers of each product and/or upgrade.
If a user did not register, proof of purchase such as original CD-
ROMS should be accepted. I believe that the amount of compensation
should be selected so that a substantial fraction (more than 50%) of
Microsoft's cash on hand is disbursed to consumers. Although these
four remedies each may sound quite harsh, I believe that Microsoft's
conduct cannot fundamentally be altered without applying all four
remedies simultaneously. Ultimately, these remedies will result in
the resumption of competition and market-based innovation in many
areas of the computer software industry. Without all four remedies,
it is quite likely that Microsoft will be able to resume its
anticompetitive practices by interpreting the ruling in its own
ways.
Thank you for your time.
Geoffrey G. Peck
San Jose, California
Mr. Peck is a computer scientist who has been involved since the
late 1960s in designing and a wide variety of computer software
ranging from the file system component of operating systems to end-
user applications. He graduated from Harvard College in 1978, and
obtained his Masters degree in computer science from the University
of California, Berkeley in 1982. He is currently Chief Technology
Officer of a Silicon Valley start-up. This letter represents Mr.
Peck's personal views, and does not necessarily reflect the views of
his employer.
MTC-00029529
From: Raymond Borys
To: Microsoft Settlement
Date: 1/29/02 2:09am
Subject: Microsoft Settlement
Raymond Borys
3051 Alexis St.
Portage, IN 46368
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Raymond J. Borys
MTC-00029530
From: Steven Apour
To: Microsoft Settlement
Date: 1/29/02 2:12am
Subject: Microsoft Settlement
Steven Apour
2640 Melendy Drive, Apt. 3
San Carlos, CA 94070
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Steven H. Apour
MTC-00029531
From: esko
To: Microsoft ATR
Date: 1/29/02 3:02am
Subject: Microsoft Settlement
I am a software engineer with 19 years of experience developing
software for Apple, Windows, DOS, Unix, and Linux. Having studied
the proposed final judgement it is obvious to me that it is not in
the public interest. To begin with, there appears to be no provision
for enforcement.
Additionally there are so many loopholes in the definitions used
that even the little that it attempts to do is virtually guaranteed
to fail. There are many anti-competitive practices that the proposed
judgement does not address at all.
For a more detailed critique of the settlement that touches on
most of the issues I highly recommend checking out Don Kegel's
summary of the flaws on the internet. (http://www.kegel.com/remedy/
remedy2.html) I agree with each of the points he makes in the essay.
It is a good outline of many of the most obvious limitations of this
proposed settlement.
Microsoft has been allowed to run roughshod over the computer
industry for more than a decade. It has danced around the terms of
the ``consent decree'' and completely subverted them.
There are many examples in the Findings of Fact illustrating an
almost complete lack of ethics and total disregard for the law.
Only a very restrictive, well-defined, comprehensive decree with
a real enforcement mechanism has any hope of accomplishing the goals
that a remedy decree requires.
The ongoing actions taken by this company while these
proceedings take place make it readily apparent to me that Microsoft
has no intention of following any court order or honoring any
agreement it signs.
I strongly urge you to take the necessary steps to accomplish
the goals defined by the appeals court. If you manage to do so, you
will help restore the computer industry to the dynamic and creative
environment I fell in love with so many years ago.
Sincerely,
Esko Woudenberg
391 Montclair Dr. #46
Big Bear City, CA 92314
Software Developer
MTC-00029532
From: Ronald Fritz
To: Microsoft Settlement
Date: 1/29/02 2:14am
Subject: Microsoft Settlement
Ronald Fritz
317 Heather Dr.
Carmel, IN 46032
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation. Competition means creating
better goods and offering superior services to consumers. With
[[Page 28674]]
government out of the business of stifling progress and tying the
hands of corporations, consumers--;rather than bureaucrats and
judges--;will once again pick the winners and losers on Wall
Street. With the reins off the high-tech industry, more
entrepreneurs will be encouraged to create new and competitive
products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Ronald E.Fritz
MTC-00029533
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 2:18am
Subject: Microsoft Settlement
Ms. Renata B. Hesse,
Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Renata Hesse:
Please put a stop to the economically-draining witch-hunt
against Microsoft. This has gone on long enough. Microsoft has
already agreed to hide its Internet Explorer icon from the desktop;
the fact is, this case against Microsoft is little more than
``welfare'' for Netscape and other Microsoft competitors,
with not a nickel going to those supposedly harmed by Microsoft: the
computer user. This is just another method for states to get free
money, and a terrible precedent for the future, not only in terms of
computer technology, but all sorts of innovations in the most
dynamic industry the world has ever seen.
Please put a stop to this travesty of justice now. Thank you.
Sincerely,
Tracey Cutler
14480 Oak Place
Saratoga, CA 95070
MTC-00029534
From: Marge Evans
To: Microsoft ATR
Date: 1/29/02 2:21am
Subject: AOL/Time Warner/Netscape Suit
It is time for the attacks on Microsoft to end. As a consumer, I
now have and have had ample opportunity to choose browsers, internet
connectors. The government approved the union of AOL/Time Warner
making it a very large media monopoly. AOL has a majority of the
online subscriber business for the internet to boot. Having used the
Netscape browser years ago I was bombarded with unsolicited e-mail
as there was no way to easily get it blocked. AOL is a very
aggressive company. I feel that these suits are NOT creating more
choice or competition for the industry but rather taking from
investors, consumers, the right to improved products. All the money
that has been spent on lawsuits, legal costs, trials has taken away
from improved products, research, jobs. I feel AOL, Oracle, Netscape
and the rest of the companies that have banded together against
Microsoft should better spend their time and their investor's monies
improving their own products rather than trying to destroy this
company. It is difficult to believe that any of those companies is
any less aggressive than Microsoft.
When it comes to monopolies, the US Government is the biggest
monopoly of all and has, through its inept and unthinking Federal
Reserve Bank Policies, with its rate increases, cost hundreds of
small companies to go bankrupt. This country needs to stop attacking
companies and get its act together to get the economy headed in an
upward direction. We are now in the process, because of our
policies, of letting China take over Global Crossing, thereby giving
up the global fiber optics business to a foreign country. Do we have
our heads in the sand?
MTC-00029535
From: Mike Schuh
To: Microsoft ATR
Date: 1/29/02 2:22am
Subject: Microsoft Settlement
Greetings:
I wish to comment on proposed settlement in U.S. et al v.
Microsoft. I strongly believe that Microsoft should be penalized for
their injurious use of their monopoly in desktop operating systems.
However, I do not think that their proposal to give computers and
software (theirs, of course) to ``impoverished'' schools
is acceptable. It would be like allowing a fox, convicted of raiding
a chicken coop, to stand guard over the coop as punishment... One
should be cautious of the remedies proposed by those who must
fulfill those remedies (``please don't throw me in the brier
patch'' comes quickly to mind, albeit in a slightly different
context). The basic problem with the proposal is that it helps to
perpetuate Microsoft's illegal monopolistic practices! In a few
years, when the schools have to upgrade (because Microsoft will have
rendered the ``free'' software obsolete), they'll have to
buy from Microsoft.
Here's a better idea, and one that I support: http://
www.redhat.com/about/presscenter/2001/press--;usschools.html
Among other things, the ``retail'' value of Microsoft
software is, to Microsoft, approximately zero, so the proposal
really isn't much of a penalty.
An alternative is for Microsoft to sell off (and forever stay
out) their applications software, then reimbursing everyone who has
ever purchased software from them with the proceeds (that is, they
don't get to keep the proceeds from the sale, that being their
penalty). Kind of like a giant class action law suit.
If we don't punish the guilty in a manner that truly is
punishing, then there is no disincentive for them (or anyone else)
to go and just repeat their behavior. In fact, Microsoft has already
done this! Thank you.
Mike Schuh--;Seattle, Washington USA
http://www.farmdale.com
MTC-00029536
From: jmetz
To: Microsoft ATR
Date: 1/29/02 2:23am
Subject: microsoft
Sirs
I have only a few thoughts on the matters before the judge. If
microsoft is in actuallity a monopoly as most of the tech world
belives and it has manipulated the law government and its access to
the hardwarre manufacturers there are some very simple solutions
that might be implemented.
They need to be punished in a manner that would benefit
disadvantaged competitors and the general public as well. So here
might be a method that would serve all the injuried parties starting
back from 1992 when they virtually drove Geoworks from the office
and school suite business.
Geoworks now is under the control of www.breadbox.com had been
developed as a complete operating suite and sold recently as
NewDealOffice 2000 is a service system that resides on top of any
DOS or Win9x NT or linux in a DOSEMU and OS/2 as a cross platform
suite
If microsoft were to be forced to release both its win9x as a
downloadable and its DOS as downloadable in total with the
associated Knowledgebases and source codes this might enable other
companies to continue development of those operating systems.
If they were forced to give away mac systems with the associated
versions of software to all the schools in need, that would
partially aid another company that had been harmed greatly.
If they were to pay for the rehab of older boxes 386 486 and low
end pentium units with the addition of the software suggested above
for distribution in the 3rd world of central and south americas this
would also solve other existing problems. But those are my opinions.
MTC-00029537
From: bill frack
To: Microsoft ATR
Date: 1/29/02 2:23am
Subject: Microsoft Settlement
11143 Philadelphia Road
White Marsh, MD 21162
January 28, 2002
Attorney General John Ashcroft
U.S. Dept. of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to you today to express my support of the
settlement reached with Microsoft. The November settlement
represents three years of mediation, and given the current state of
the economy, I believe enacting it is in the best interests of the
country. I urge you to do so.
The settlement contains many concessions on the part of
Microsoft. Microsoft has agreed to disclose the internal interface
of the Windows system. This information sharing will allow
developers to create software that is more compatible with the
Windows system. In addition to this, Microsoft users will also have
the ability to reconfigure their desktops at their discretion with
the new design of Windows XP. Obviously, Microsoft has done its
share to end this litigation process; I trust that the Justice
Department has the sense to enact the settlement. Thank you for your
concern regarding this issue.
Sincerely,
J. W. Frack
MTC-00029538
From: Lewis Zechmeir
To: Microsoft ATR
Date: 1/29/02 2:27am
Subject: MICROSOFT SETTLEMENT
[[Page 28675]]
TO WHOM IT MAY CONCERN:
I find the proposed Microsoft settlement odiferous. To allow
them to advance their monopoly and call it punishment is ludicrous.
The very people who were harmed by their business practices would be
harmed by the proposed settlement. I feel that any judgment has to
be made to level the playing field.
One alternative would be to have Microsoft donate light wave
fibers to local servers and pay to have it laid into rural areas in
the various states that are asking for damages. Any company could
connect or provide service and customers could choose between them.
This would bring high speed internet into rural areas and bridge
the digital gap. The affected states would benefit and it would
stimulate the economy fairly.
Respectfully,
Lewis Zechmeir
MTC-00029539
From: Boyd Bronson
To: Microsoft Settlement
Date: 1/29/02 2:27am
Subject: Microsoft Settlement
Boyd Bronson
8915 Somerton Circle
Sandy, UT 84093-;7022
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Boyd Bronson
MTC-00029540
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 2:31am
Subject: Microsoft andti-trust case.
To Renata Hesse, trial attorney,
Antitrust Divison,
U.S. Deptment of Justice:
No one considered Microsoft a monopoly before it was so
designated by Judge Penfold Jackson, who was so prejudiced against
Microsoft that a related decision by him was overruled by the
appeals court.
Microsoft's tactics to protect its share of the market are
common business practice, which is illegal only if performed by a
monopoly. So it cannot be punished for violating the Sherman
Antitrust Act, before it was legally a monopoly; or it will become
an ex post facto case.
Also, the Sherman Antitrust Act outlaws trusts, or combinations
of companies, which conspire to restrain trade. Since when has a
single company, which won a major share of the market because its
service was so superior to its competitors, been prosecuted like
Microsoft?
Microsoft founder Gill Gates is giving billions of dollars for
worthy causes. By contrast, AOL/Times Warner is lavishing vast sums
for politicians and slick lawyers to subvert the law for its own
benefit. They are seeking competitive advantages by their list of
demands that violate patent laws--;not justice!
Hopefully U. S. District Judge Colleen Kollar-Kotelly uses her
common sense and not be confused by the countless, questionable
details, dredged up by the anti-Microsoft coalition.
Mas Odoi
MTC-00029541
From: Patrick O'Connor
To: Microsoft ATR
Date: 1/28/02 5:31pm
Subject: Microsoft Settlement
Dear Ms. Hesse:
Attached please find Comments of NetAction and Computer
Professionals for Social Responsibility on the Proposed Final
Judgment in U.S. v. Microsoft. An additional copy has been provided
by fax. Please feel free to contact me at 202-;955-;6300
with any questions or concerns.
Regards,
Patrick O'Connor
Counsel to NetAction and Computer Professionals for Social
Responsibility
MTC-00029542
From: Mark Horton
To: Microsoft Settlement
Date: 1/29/02 2:34am
Subject: Microsoft Settlement
Mark Horton
690 Fort Washington Ave. #2F
New York, NY 10040
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Mark Horton
MTC-00029543
From: ron
To: Microsoft ATR
Date: 1/29/02 2:44am
Subject: Microsoft Settlement
Ron Hardesty
12024 147th St. Ct. E.
Puyallup, WA 98374
January 28, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am in favor of Microsoft and the Department of Justice
settling the antitrust case. It is time for the federal government,
the plaintiff states, and Microsoft to get back to the things that
really matter. There is a multitude of reasons why this case should
be settled. To begin with, Microsoft has been unfairly singled out
in this case. Several other high-tech, media conglomerations truly
are monopolistic. Yet, Microsoft has been the only target of
antitrust litigation. Additionally, the suit was brought under the
guise that consumers were being harmed by anticompetitive behavior
on Microsoft's part. To the contrary, Microsoft helped consumers by
producing innovative products at reasonable prices. The lawsuit has
driven up prices of Microsoft software. Consumers will clearly
benefit from an end to this protracted litigation. The terms of the
settlement agreement are more than fair. Microsoft has agreed not to
retaliate against those who promote or distribute software that
competes with Windows. They also agreed to begin designing Windows
in such a way so that it is easier for computer manufacturers,
consumers, and software developers to promote non-Microsoft software
within Windows. It will be much easier for consumers to change the
configuration of their computers. This will result in more choices,
and, hopefully, stronger competition.
I hope to see this settlement agreement finalized as soon as
possible. Thank you for reviewing my comments.
[[Page 28676]]
Sincerely,
Ron Hardesty
(253)229-;6186 Cell
12024 147th St. Ct. E.
Puyallup, WA. 98374
MTC-00029544
From: Anonymous
To: Microsoft ATR
Date: 1/29/02 2:52am
Subject: Microsoft Settlement
Introduction
This document is a sparse skeleton, as the author only
discovered the ability to file Microsoft final ruling commentary
about a day ago. The 1/28/02 deadline is now known and the skeleton
commentary is submitted to meet that deadline, on Email date/time.
The author asserts this timely skeleton is sufficient, as he is
claiming US legal mandate in a comment to the US DOJ, carrying
``coals to Newcastle'' so to speak. However, the author
will continue to make a more detailed argument with references and
plans to file that argument as a collateral DOJ complaint in about a
week, with disclosure to presumptively interested parties Apple
Computer, American Online, and the other non Judgment participating
sovereign states. The author presumes the DOJ will disclose that
complaint to Judgement interested parties. The author stands by this
skeleton, speculates that further argument may be of benefit in the
pursuit of justice, plans that further submission within about a
week, but has major collateral duty and makes no delivery guarantee.
The major issues, see below, are the Apple QuickTime environment
change, the ``server side'' functionality, and the
possible secret Microsoft scheme in iterative maneuvers of an
unwitting user body into periodic, not one time, computer system
licensing fees. This document is written from memory but is believed
to be correct. If nothing shows up in two weeks, 2/11/02, the claim
of further argument delivery expires.
The author is not computer ``innocent'', speaks from
decades of computer operating system development and maintenance
experience as well as legal awareness. The author has purchased,
installed, and used Microsoft operating system and tool software.
The author is neither lawyer nor witness, attributes the entirety of
the possible factual issues to media sources, is submitting
Federally protected, US Amendment One petition believed to be true,
but labeled as speculation and not fact, expects full investigation,
and may be entirely wrong. This document is not signed, as the
author is not witness and has collateral awareness of retaliation to
complaint. However, US Amendment Right of Petition specifies no
signature mandate.
Claim
It is possible Microsoft is guilty of bad faith at a minimum, in
knowing, pre-judgement violation of Final Judgement III. A.
Prohibited Conduct, ``. . . shall not retaliate . . . .''
This retaliation is possibly via the continuing exercise of a scheme
or artifice to defraud OEM's and clients with continual, anti-
competitive, fraudulent conduct possibly in violation of US Title
18. It is possible that scheme or artifice is a racketeering
enterprise run for profit. It is possible there is probable cause
for formal investigation of these issues within US Title 18 mandate.
Assertion
Use of the Microsoft Operating System Product
(``MOSP''), and / or Internet connectivity use of the MOSP
to other sites or to Microsoft sites, is possibly directly linked to
the exercise of interstate commerce, interstate wire traffic, and
causal or facilitated US Mail, thus making US Title 18 mandates
material.
Assertion
Client usage of purchased MOSP tools runs under sovereign state
contract law and regulation, thus possibly defining contract and /
or property right entitlement(s) covering that MOSP tool exercise.
An involved sovereign state who may have sovereign state entitlement
change in progress has a right to a hearing on these possibilities.
Assertion
A reasonable person view of MOSP security support, also within
full sovereign entitlement, is possibly a further, distinct property
right entitlement and / or contract material issue. Assertion A
reasonable person view of questionable MOSP operating system
maintenance changes, security or otherwise, changes that impact or
eliminate legacy services or that suddenly mandate new interfaces,
when viewed by that reasonable person in the current
``operating system world'' and / or history, may involve
property right entitlement and / or contract breach, on that
questionable cause.
Assertion
An undisclosed change to the MOSP that substantively both
eliminates a prior OEM function and adds a Microsoft maintenance/
change may be viewed by a reasonable person as an extortionate act.
One wants the change and is thus forced to give up the function . .
. to get the change. Alternatively, one installs the change with
secret OEM function elimination, possibly evolves into substantive
value in the effect of that change, suddenly discovers the OEM
function elimination, but no longer can simply ``back up''
to the prior maintenance level, because of involvement in MOSP
change.
Assertion
It is possible Microsoft made an MOSP maintenance change that,
in part, knowingly eliminated the ability of a current Apple
QuickTime product to function. It is possible that change was not
done for MOSP function enhancement, but was rather done to harm OEM
Apple, to reduce competitor product QuickTime usage, to enhance
competing product Microsoft Media Player usage, and to enhance
Microsoft profit at the expense of client MOSP service and choice.
It is possible a harmful act of this type may be a contract breach,
an interstate wire received, cause of breach, and / or a property
right entitlement denial.
MTC-00029545
From: Anonymous
To: Microsoft ATR
Date: 1/29/02 2:55am
Subject: Microsoft Settlement
Assertion
It is possible Microsoft apparent change focus on ``server
side'' MOSP maintenance enhancement control, as distinct from
``client side'' control, breaches a reasonable person view
of the contract rights under MOSP purchase, the sovereign property
right entitlement(s) associated with that contract, and / or the
intangible right to honest services for an interstate wire
transaction.
As an example, Norton Systemworks on Windows 98 appears to do
maintenance upgrades on the ``client side'', the user tool
using Internet in contacting Symantec for current system levels,
offering a list of changes for user download and install, then
running that user download and install process.
However, Microsoft MOSP maintenance from Microsoft support
itself appears to run ``server side'' system level
support, not ``client side'' and appears to possibly force
security changes in web browser configuration. The server side
browser code possibly determines the needed maintenance by examining
the client, not the client side code examining the server.
Microsoft develops both the MOSP client and its own server, has
the direct choice of client (MOSP) or server (Microsoft server)
support, and is possibly doing the reverse of Symantec. It is
possible that server/client choice breaches a reasonable person view
of rights and / or entitlements, with the author stating he would
never choose server side support if given a choice.
It is possible Microsoft in the past and recently made
``server side'' changes in its Windows maintenance update
process that forced ``client side'' security changes in
order to obtain both maintenance support and merely a list of the
``client side'' system changes possibly needed. Some of
these changes may be critical security changes.
Assertion
It is possible Microsoft has a secret scheme or artifice to
increasingly disregard ``client side'' functionality
choice, choosing to impose ``server side'' functionality,
but for no disclosed or apparent MOSP support reason. It is possible
that increasing, undisclosed, suspicious change effects, installed
by MOSP necessary bug maintenance practice, is in fact a pattern and
practice scheme to increasingly foster ``server side''
functionality upon an unwitting user body, until ``server
side'' functionality becomes a mandate, not a choice. At that
mandate time, it is possible a secret Microsoft plan to now force
periodic software licensing fees upon the user body now will become
reality, with the user body, after repeated, subtle, concealed
change over time, is now dependent on ``server side''
functionality, and is unable to drop Microsoft or Windows because of
business or personal need.
Assertion
It is possible Microsoft has not in good faith tried to comply
with the intent of the Proposed Final Judgment and the espoused
complaint of opposing parties, has not in good faith tried to be
consistent with reasonable person expectation of MOSP and computer
tool expectation with Proposed Final Judgement III. A. retaliation
expectation, but rather is engaging in a secret scheme or artifice
to continually engage in
[[Page 28677]]
anti-competitive, fraudulent practices in at least three ways:
One, to ``tailor'' MOSP maintenance changes to reduce
or eliminate the ability for a possible OEM to offer competing
product, such as Apple QuickTime, Microsoft thus acting not to
compete and offer MOST client choice, but to defraud and to
retaliate.
Two, to use the secret scheme or artifice to later force
periodic licensing upon a user body that now requires ``server
side'' functionality, on evolving business or personal need,
Microsoft using near-monopoly power to
secretly--;reverse--;the possible entire history of computer
usage financing.
Three, speculating on the future, to use that periodic licensing
scheme as an anti-competitive mechanism, where a user whose computer
is old or wears out has minimal choice for competing product, being
forced to stay with the now necessary ``server side''
licensing mechanism because of business or personal need of that
software. While Microsoft offers presumptively equal software on
Macintosh and Windows, after Windows periodic licensing becomes
reality, the pretextual, competing Macintosh versions may become
obsolete.
Assertion
While a vendor certainly has the right to develop and offer
their own delivery of service, a vendor has no right to use the US
Mail, interstate wire, or interstate commerce in a pattern and
practice to deny honest services, to conceal material fact in a
secret scheme for future profit, to scheme in iterative enticement,
lure, or extortion of unwitting users into future, periodic
licensing.
Rewording, offering a ``server side'', monthly license
fee tool is certainly legal. Maintaining and extending an operating
system is certainly legal. But maintenance change patterns that have
no credible client value, that have a secret Microsoft value, that
are part of a likely ``setup scheme'' for the user, are
fraud, in the denial of honest contract and wire services.
If questionable change A, precedes B, precedes C, . . . into now
necessary ``server side'' functionality ``P'', a
functionality that facilitates periodic licensing, then each
distinct change, absent credible cause, is falsified cause and
fraudulent effect.
Using a near-monopoly customer base to impose secret, subtle
maintenance changes for no credible reason, in denying reasonable
person expectation of operating system, computer tool, and / or
competitive product honest services, or using knowingly false MOSP
maintenance changes to impose Microsoft benefit at the expense of
reasonable person expectation, is not legal. It is potential fraud
and potential racketeering.
Assertion
This is not a single redress against a single Microsoft. It is a
possible class action issue for the entirety of Microsoft users of
all tools and all products, for the entire world, for all interstate
mail, wire, and commerce acts, for all Microsoft support downloads.
MTC-00029546
From:
[email protected]@in
etgw
To: Microsoft ATR
Date: 1/29/02 2:58am
Subject: Microsoft Settlement
To whom it may concern:
I am writing to express my disappointment over the settlement
proposed by the DOJ in US v. Microsoft. As a software engineer, I am
well aware of the strangle-hold Microsoft holds over the industry,
and the stifling effect it has on innovation.
In 1994-;1995 when Netscape and Mosaic were the only
browsers around, Microsoft started whispering about entering the
browser market. I was in college at the time (University of
Pennsylvania) and had seriously considered entering the browser
market with several of my peers. As soon as rumors of Microsoft
surfaced, those plans were stopped dead in their tracks. Netscape's
100% market share didn't discourage us at all. Microsoft's track
record of stomping out rivals--;dare say I entire
markets--;using ill-gotten gains is what sent our creative
energies elsewhere. The ensuing 4-;5 years were full of
``browser-war'' stories, but the result was a foregone
conclusion before Microsoft had released a single product.
The current software landscape is rather bleak. When the bully
gets to usurp any and all innovative ideas, people eventually stop
being creative. Motivation is tough to come by when you know that
the spoils of your labor will eventually be in the war-chest of said
bully.
Since the settlement does nothing to fundamentally change this
landscape, I can not support it. I don't feel that the DOJ has
represented the public's best interests.... they certainly have not
done so with mine.
Blake Mills
MTC-00029547
From:
[email protected]@inetgw
To: Microsoft
ATR,senator--;[email protected]@
inetg...
Date: 1/29/02 2:59am
Subject: Microsoft Settlement
Mario Rodrigues
1921 North H Street
APT 48
Oxnard
CA 93030
Wednesday, January 23rd, 2001
To whom it may concern,
Having read the testimony of the Senate Committee on the
Judiciary, and the Court's Findings of Fact, I for one am against
the proposed settlement because it will maintain the status quo.
This will mean the continued absence of any compelling competition
for software on the desktop. Any one of a neutral disposition, who
has read the testimony and the Court's Findings of Fact, can clearly
see the lack of justice when viewed against this landmark judgment.
The Supreme Court has explained that a remedies decree in an
antitrust case must seek to ???unfetter a market from
anticompetitive conduct,'' Ford Motor Co., 405 U.S. at 577, to
???terminate the illegal monopoly, deny to the defendant the fruits
of its statutory violation, and ensure that there remain no
practices likely to result in monopolization in the future,''
United States v. United Shoe Mach. Corp., 391 U.S. 244, 250 (1968);
see also United States v. Grinnell Corp., 384 U.S. 563, 577 (1966).
Where does the proposed settlement, ``terminate the illegal
monopoly'' and ``deny the defendant the fruits of its
statutory violation?'' From the Court's Findings of Fact,
Netscape, Sun, Apple, RealNetworks, IBM, and Intel have all suffered
lost business because of Microsoft's anti-competitive behavior. From
their standpoint, the proposed settlement must just look like a slap
on the face. Where does the proposed settlement ``terminate the
illegal monopoly'' and ``deny the defendant the fruits of
its statutory violation?'' These two fundamental principles of
remedy have not been addressed at all. Microsoft's market position
will not change if this settlement is implemented. Remember what
happened to AT&T's illegal telephone monopoly, and how that
break-up brought to the consumer choice, better service, and lower
costs. If this proposal is accepted, those who buy Microsoft's
products will continue to pay over the top rates to use them. If
implemented, the proposed settlement that the DOJ has succumbed to
will not change the industry for the better, but will continue to
leave the consumer, government, and business, over a barrel; to
suffer Microsoft's continued exploitation, whose ill-gotten gains
(profits) continue to line the pockets of those company officers
responsible for creating this illegal monopoly. This can only be
seen as ``payback'' for breaking the law, and sets a
terrible precedent for future antitrust litigation. Let's hope that
Judge Kollar-Kotelly has the courage, and the law, to turn payback
into blowback. Let's remember that well known and often used adage,
once bitten twice shy. Microsoft has chosen, all too often, to
stretch forth its hand and eat from the forbidden fruit. It is now
time that they were punished and expelled from their Eden of milk
and honey. Microsoft has to be penalized with penalties that bite,
which go way beyond the kindergarten settlement we have here today.
This has to be done for two fundamental reasons. First symbolic.
Microsoft has to be seen to be punished, which has to be
commensurate in effect to the way it dealt with companies that it
illegally competed against. This punishment will then draw a line in
the sand, which for the future will bring to remembrance and serious
reflection the serious penalties for stepping beyond the law. Second
for competition. The market has to be given time to normalize to a
competitive environment. Regulation, not another consent decree,
will be required until market conditions allow companies of
substance to hold their own against a convicted monopolist.
Microsoft should not be left in a position where it is able to
repeat conduct that an ideologically diverse Court of Appeals
unanimously found illegal. I am not a lawyer, but I do feel
confident that this settlement will not meet the requirements of the
Tunney Act. If by chance, there is a miscarriage of justice, it will
not only be very sad day for justice, it will also cloud all future
anti-trust litigation. Because of the courts'' inability to
punish illegal conduct with justice of equal measure to the crime,
it will give a green light for more commerce law breaking. The
saying will be, ``if you want to stay in business act like
Microsoft,
[[Page 28678]]
if you don't, you'll end up a loser, like Netscape.''
If US law should fail to meet out the requisite punishment for
Microsoft, antitrust litigation against Microsoft will continue well
into the future. AOL filed suit yesterday, the EEC have a case
pending, half the State Attorneys don't agree with the settlement
case here, and the judge in the private class action lawsuits ruled
that settlement anti-competitve. There is no argument against
Microsoft's guilt, there is plain disagreement as to what that
punishment should be. In his statement to the Senate Committee on
the Judiciary, Senator Orrin G. Hatch said, ``The Microsoft
case - and its ultimate resolution--;present one of the most
important developments in antitrust law in recent memory. The
proposed settlement does not justify the Senator's statement.
Let's remember Proverbs 29:18, ``Where there is no vision,
the people perish.'' I hope that Judge Kollar-Kottely is
blessed with the wisdom and vision to ensure that justice meets its
obligations. Mario Rodrigues
MTC-00029549
From:
[email protected]@inetgw
To: Microsoft ATR
Date: 1/29/02 3:01am
Subject: Microsoft Settlement
This country and our economy is highly dependent upon FREE
Enterprise and talented companies like Microsoft that have created
so many jobs and technology for our betterment. Microsoft must be
given the freedom to continue their innovation unhampered by further
litigation. Let the cry-babies work a little harder and stop hiding
behind their lawyers.
We are weary of all this litigation. Enough!
Sincerely
Marie L. Odenheimer
MTC-00029551
From: Majewski Harry J Jr SSgt 31CS/SCMFG
To: ``microsoft.atr(a)usdoj.gov''
Date: 1/29/02 3:07am
Subject: Microsoft Settlement
I beleive that the current settlement on the books for Microsoft
allows for the company to continue to abuse its monopolistic
position on the software market. In order for market fairness to be
regained, the company should be, at the very least, forced to make
it's browser separate from its operating system, and to not allow
the company the use of API's or software libraries that would cause
another companies competing software to run less efficiently (I.E.
Netscape Communcator), and be disallowed from using secret API's to
promote the sale of additional software created by them. I also
beleive that Microsoft should be forced to compensate for loss of
revenue to other companies due to faulty software that they
themselves advocated (I.E. advocated the use of their software in a
specific situation when a survey was requested by one company or
another.) This, in effect, would bring Microsoft in line with every
other major production corporation out there. In the late 80's,
software was not a critical aspect of our economy/safety, and thus,
was afforded a different kind of protection under law.
Unfortunately, times have changed, but the law hasn't; Software
companies still have almost complete immunity for creating a faulty
product. Microsoft software is being placed in a higher, and higher
level of trust every day, as more and more of our lives become
computerized. This places a responsibility on the software companies
to create software that is secure to outside attacks.
If a car maker had a vehicle that was ``fool proof''
and was capable of avoiding *ANY* accident that would be that
vehicle owners fault, that would be great. But, if the same car,
when involved in an accident caused by someone else, provided no
security, or protection for the occupant, that auto manufacturer
would find themselve in a very lengthy court battle, and be
responsible for injuries to occupants. Microsoft, and other software
companies do not face such problems, yet create the very same
situation every day. Their software by itself, does not pose a
threat, but, they deny responsibility for the actions of others who
create havoc with their software.
Thank you.
SSgt Majewski
MTC-00029552
From: Tom DeChaine
To: Microsoft ATR
Date: 1/29/02 3:10am
Subject: Microsoft Settlement
To: Department of Justice District Court Judge
Microsoft is only ``guilty'' of aggressive marketing;
what successful company in the US isn't! Our irrational anti-trust
regulations are predicated on the notion that too much success is
unhealthy for our economy--;which is totally false. And they are
used merely as a tool by the envious to devour the very strength in
our economy. I, and every computer user, is indebted to Microsoft
for the software they have provided and their broader contribution
to the advancement of computer technology. Our
Government--;Federal and States--;must side with Microsoft
in the legal suits against them. This company is not guilty of a
legitimate crime (e.g. fraud); it is a positive example of
Capitalism at work. It is time for our Government to turn back the
clock and defend Capitalism whenever possible: defend the principles
upon which this country was based.
Tom DeChaine
Penn Valley, Ca.
MTC-00029553
From: R. Todd Reasonover
To: Microsoft ATR
Date: 1/29/02 3:10am
Subject: Microsoft Settlement
I believe the Justice Department should NOT settle the lawsuit
with Microsoft. I personally believe that Microsoft should be broken
into pieces. There is virtually no competition in the OS market,
browser market, and office suite market to name a few. Microsoft has
consistently shown that they won't play fair. All in the name of
innovation; as long as it's Microsoft's way.
Thank you.
Todd Reasonover
MTC-00029554
From: Robert Lyle
To: Microsoft Settlement
Date: 1/29/02 3:06am
Subject: Microsoft Settlement
Robert Lyle
3605 Arlington Oaks Dr.
Mobile, AL 36695-;8707
January 29, 2002
Microsoft Settlement
U.S. Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Microsoft Settlement:
The Microsoft trial squandered taxpayers' dollars, was a
nuisance to consumers, and a serious deterrent to investors in the
high-tech industry. It is high time for this trial, and the wasteful
spending accompanying it, to be over. Consumers will indeed see
competition in the marketplace, rather than the courtroom. And the
investors who propel our economy can finally breathe a sigh of
relief.
Upwards of 60% of Americans thought the federal government
should not have broken up Microsoft. If the case is finally over,
companies like Microsoft can get back into the business of
innovating and creating better products for consumers, and not
wasting valuable resources on litigation.
Competition means creating better goods and offering superior
services to consumers. With government out of the business of
stifling progress and tying the hands of corporations,
consumers--;rather than bureaucrats and judges--;will once
again pick the winners and losers on Wall Street. With the reins off
the high-tech industry, more entrepreneurs will be encouraged to
create new and competitive products and technologies.
Thank you for this opportunity to share my views.
Sincerely,
Robert E. Lyle
MTC-00029555
Marilyn Ayers
2292 Bitterroot Place--;
Littleton, Colorado 80129
January 26, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As an active user of Microsoft software programs since 1989, I
want to express my views on the Microsoft settlement: Support.
Complete support. Microsoft has standardized the way we use
computers.
They continue to give us deals. They provide us with new
concepts on how to get the most out of our computers.
Clearly, the Company wants to put this costly legal action
behind them and move forward with developing new products. They are
certainly not getting off easy with the settlement, and their
compliance is guaranteed thanks to the excessive oversight the
settlement includes.
Please accept the terms of the settlement Thank you.
Sincerely,
Marilyn Ayers
MTC-00029556
45 Gramercy Park N
[[Page 28679]]
New York, NY 10010
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 0530
Dear Mr. Ashcroft:
I support the settlement the Department of Justice and Microsoft
agreed to several months ago in their three-year-old antitrust
lawsuit. I think Microsoft has gotten a bad rap because of its
market dominance, and I believe the case should be concluded without
more litigation.
The settlement's terms will allow competitors to better
integrate their programs into Windows. Disclosing internal
programming language to competitors is a generous move on
Microsoft's part, and shows the company's willingness to put the
situation behind them. Please support the settlement and allow
Microsoft to concentrate on future business endeavo's. They have led
the way in technological innovation for two decades now, and should
be free to continue doing so.
MTC-00029557
Robert L. Kaufman
34 Jade Lane
Cherry Hill, NJ 08002-;1612
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Your strong leadership in working to settle the Microsoft
antitrust case is certainly in the best interests of America.
Federal Judge Thomas Penfield Jackson showed his disdain for
judicial ethics by revealing his biased prejudgment to a member of
the press in his own judicial chambers long before he issued his
opinion in the case. Whatever happened to judges hearing all the
evidence and arguments before deciding the case? Whatever happened
to judges who aren't ego-induced publicity hounds? Judge Jackson did
damage well beyond the judicial and legal community though. His
decision to break up Microsoft into pieces, as though he .saw
himself as Julius Caesar dividing Gaul, pulled down the whole stock
market, in my opinion. Technology stocks were badly hurt.
Fortunately, the Court of Appeals later overturned Judge
Jackson, and Microsoft and your department have reached a settlement
that will be good for American business and the American public.
Microsoft will have to show its cards, its hidden poker hand. It
will show the industry its internal interface code and server
protocol code, and license its other codes to companies on a non-
discriminatory basis. It will allow computer makers to sell non-
Microsoft operating systems at the same time they sell Windows, and
set uniform prices and terms instead of negotiating. This will allow
the industry greater flexibility. I don't ``know how good this
will be for Microsoft, although Microsoft has agreed to it to settle
the case and move on. However, it will be very good for the tech
industry.
Thank you again for your support of the settlement. Let's hope
the new federal judge on the case approves it. I .just had to add my
voice during the public comment period. This settlement is important
for America.
Sincerely,
Robert L. Kaufman
MTC-00029558
383 Second Ave
Massapequa Park, NY 11762
Phone: 516 799-;8300 -24/7
Fax: 516 799-;8350 -24/7
eMail: [email protected]
Fax:
To: Attorney General John Ashcroft
From: Walter C. Schmidt, CPA
US Department of Justice
Fax: 202-;307-;1454 or 202-;616-;9937
Pages: Two including this cover sheet
Phone:
Date: 01/27/2002
Re: Microsoft Settlement CC:
See following...
WALTER C. SCHMIOT, CPA.
Massapequa Park, NY 11762 24/7:516.799.8300
Fax: 516.799.8350
eMail: [email protected]
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Fax: 202-;307-;1454- 202-;6169937
--;Email: [email protected]
Subject: Microsoft Settlement.
Dear Mr. Ashcroft:
Microsoft continues in its role as a leader in the Information
Technology industry. They do this not by luck, but because they are
the best at what they do. Microsoft has given us, the business user,
the ability to do things we only dreamt of a decade ago. They have
done this efficiently and effectively, while at the same time their
products have developed a network of satisfied users. It appears
other companies are now trying to take advantage of Microsoft's
current situation because they are unable to accomplish on their own
what Microsoft has successfully done. To continue litigation,
already agreed to by the Department of Justice, nine states and
Microsoft, would prove to be a waste of time and money.
As an Information Technologies CPA, I continue to use Microsoft
products as part of my day-to-day work routine. I do this after an
ever continuing and exhaustive review of available products, and
because I feel that they continue to be the best, the market has to
offer.
The settlement currently under review is fair. Microsoft has
agreed to terms that will allow other companies to be better
equipped to compete. So far, the passage of time without litigation
resolution has caused little harm. Nevertheless, this issue needs to
be resolved before it does do serious harm to either Microsoft, the
Information Technologies industry, or our country's economy. I would
hope the Justice Department feels the same way, sees that the
proffered settlement is indeed in the public interest, and submits
its final report, recommending acceptance of the settlement.
Sincerely,
Walter C. Schmidt, CPA
MTC-00029559
4929 Canterwood Drive NW
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
[have personally founded six small businesses, each providing
software and related services to companies and consumers. Also, I
have worked for five of America's largest businesses, performing
turn-around leadership to help restore them to competitive health. I
know what it means to compete here in America, where
entrepreneurship and a free market economy have historically been
protected by our government.
I think it is a shame that the previous administration punished
successful entrepreneurship and stifled creativity--;and has
left your department to bat cleanup. The Microsoft antitrust suit is
the perfect example of this. I am appalled that the negotiated
settlement has been rejected by half of the plaintiff
states--;without even giving it a: trial period and thus letting
six months of negotiations go to waste. I think before rejection is
considered, it is necessary to give the settlement a chance.
It is a disgrace that the settlement should be delayed to give
Microsoft's opponents a bigger piece of the pie. I think the.
settlement is fair as it stands. Microsoft has agreed not to enter
into any contracts that would require a third party to distribute or
endorse Microsoft products either exclusively or at a fixed
percentage. Microsoft also plans to design future versions of
Windows so that the operating system will support non-Microsoft
software. I believe that these terms are more than reasonable.
In the long run, I believe the economy and the consumer would
benefit from a speedy settlement.
I urge you to give your support to the settlement.
4929 Canterwood Drive NW II
Gig Harbor; WA 98332
MTC-00029560
TO:
FROM:
DATE:
??OTAL PAGE (Including Cover Sheet):
Robert She??s
I605 60th Place W
Muki??eo WA 98275
425-;349-;1207
January 21, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C, 20530
Dear Mr. Ashcroft
The federal case against Microsoft is definitely without
warrant. The Case is largely p??litical and has been up in the court
system long enough. I find it appalling to consider the amount of
taxpayer dollars that have financed this persecution of Microsoft.
Having sated the above, I believe that the settlement that was
reached signifies an important resolution of the issue. Throughout
this process, Microsoft has made many
[[Page 28680]]
compromises. Microsoft agrees under the terms of the, agreement to
license Windows at the same rate to the larger manufacturers of PCs.
Further, Microsoft will relax contractual restrictions upon PC
manufacturers. These reass??ssed relations will definitely change
the industry.
But clever people like me who talk loudly in resta??ants, sec
this as a de??berate ambiguity. A plea for justice in a mechanized
society. To conclude, the case against Microsoft is unfair, yet the
settlement should be enacted as soon as possible.
But is suspense, as Hitchcock state``& in the box. No,
there isn't room. the ambiguity's put on weight.
Robert Shelts DVM
MTC-00029561
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NVY
Washington, DC 20530
Dear Mr. Ashcroft:
The antitrust suit against Microsoft has gone on long enough,
and I would like to see this whole issue end on a bos??tive note. I
feel that the settlement that has been reached between Microsoft and
the Department of Justice is as fair as it is going to get, even
though the terms go a little far in imposing restrictions and
obligations on Microsoft.
What we have had here is the federal government punishing
success. Microsoft has agreed to terms that extend beyond what was
at issue in the initial settlement, and have done so ?? order to get
this over with. They have actually agreed to give their competitors
code and design information that composes the Windows operating
system. This enables the competition to produce software and install
in within Windows, and Microsoft can do nothing about it. Enough is
enough.
The settlement is reasonable enough; please approve it as soon
as possible. Thank you.
Sincerely,
Igor Alexeff
MTC-00029562
JAN-;27-;02 SUN 04:2S PM SMITH 8059676721
January 27, 2002
To: Attorney General John Ashcroft
FAX: 202/307-;1454
From: Mr. & Mrs. James R. Smith
FAX: 805-;957-;6721
Re: Microsoft Settlement
Please see attached letter.
JAN-;27-;02 SUN 04:26 PM SMITH 8059676721
Mr. & Mrs. James R. Smith 340 Princeton Avenue Santa Barbara, CA
93111
January 25, 2002
Attorney General John Ashcroft US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The settlement that has been reached in the United States of
America vs. The Microsoft Corporation is fair, and I believe that
settling this case is in the best interest of the U.S. economy as
well as the American consumer. It is vital that for us to have our
best and brightest companies working at full steam in these times of
economic uncertainty, and continuing this litigation will not
benefit this nation.
The settlement is reas??nable; Microsoft will design future
versions of Windows to be compatible with the products of other
software companies, the company will also cease any retaliatory
action against any of its competitors. A three-person technicla
committee will monitor this settlement to ??sure Microsoft's
compliance. These terms go above and beyond the original grievances
of the suit. It is apparent that the parties who feel that the
settlement does not go far enough are not looking for a solution to
this case, but rather the perpetuation of their own po??cal motives.
Please continue you support of this settlement, the work that
you have done to ensure that there is a place ?? free enterprise in
the future of this nation has not gone unnoticed. Thank you.
Sincerely,
James R. Smith
Willie Smith
MTC-00029563
Kenway Consultants, Inc.
2715 E Mill Plain Boulevard
Vancouver, WA 98661
(360) 696-;2553
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I have followed the antitrust suit against Microsoft for the
past three years and feel that it is time this matter was brought to
a close. Microsoft has been more than fair with regards to the
settlement and I would like to see the Department of Justice
finalize it as soon as possible. I am the president of my own
company and have faithfully used Microsoft products. I have also
used non-Microsoft software and have had no problems running it
through the Windows operating system. I understand that one of the
terms of the settlement is that Microsoft will have to license the
internal codes to Windows that will allow competitors to design
software that is compatible to Windows. Obviously there are
companies who have accomplished this without going to court because
I use non-Microsoft software and it runs fine.
I feel that this issue has turned into more of a political issue
than an economic one. The government has wasted millions of tax
dollars on this suit when there are more pressing issues at hand.
This suit has become a way for other companies such as AOL to use
Microsoft as a stepping-stone. They are taking advantage of what
Microsoft has done because they were unable to do it themselves.
I have always been under the impression that this country is one
who supports free enterprise, yet this suit has not backed that
philosophy up. There will soon be a chance for the Justice
Department to finalize the settlement that has been reached and I
hope they do. Thank-you.
Sincerely,
Kenway Mead
President
MTC-00029564
COVER PAGE
TO:
FAX:
FROM: JERRY&BETTY PURCELL
FAX: 970-;181-;4009
TEL: 970-;484-;2345
PAGE [S] TO FOLLOW
COMMENT:
Please, I Ask you To Tell The De?? Jostice That I STRONGLY
Support The MicRoSOFT ?? ??'s heave well enough ALONE
MTC-00029565
STATE OF MICHIGAN
SENATE MAJORITY LEADER
State Capitol
Lansing, Michigan 48913
SENATOR DAN L. DEGROW
(517) 373-;7708
27th District
FAX (517) 373-;1450
TDD (517) 373-;0543
January25,2002
Ms. Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW--;Suite 1200
Washington, DC 20530-;0001
Re: Department of Justice Antitrust Lawsuit Settlement with
Microsoft
Dear Ms. Hesse:
I write in support of the Department of Justice (DOJ) proposed
settlement that was ordered by the United States District Court. The
terms of settlement have been agreed to by Michigan's Attorney
General.
It is my understanding that the scope of the settlement
addresses not only what the United States Court of Appeals for the
District of Columbia Circuit ruled on but also issues beyond their
findings. Further, this settlement will be strictly enforced by an
independent committee that will assure Microsoft complies with the
judgment.
The DOJ settlement will resolve the case and allow the industry
to move forward, thus, providing innovation for the industry and
greater competition and protection for consumers.
Sincerely,
DAN L. DeGROW Senate Majority Leader Michigan State Senate
DLD
aj
MTC-00029566
548 Corte Aguacate
Camaril10, CA,,93010
January 26, 2002
Attorney General John Ash croft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Ashcroft:
The Department of Justice and Microsoft leached an agreement in
November settling the antitrust suit brought against Microsoft. I am
writing to say that I support this agreement, I feel it is fair and
reasonable, and has already been approved by nine states. I see no
need for further federal action, especially while Microsoft is
negotiating with the remaining states to reach an agreement.
Although the settlement calls for concessions that make antitrust
precedent, Microsoft has
[[Page 28681]]
agreed in an effort to end this case sooner rather than later. The
longer this debacle ensues, the longer that the IT sector will focus
on litigation, rather than innovation.
We must allow the industry and the economy to move forward. I
feel that this settlement provides that vehicle. Thank you for your
consideration of my opinions.
Sincerely,
Harry P. Lee
cc: Representative Elton Gallegly
MTC-00029567
MARLENE F. PARTYKA
611 Berkshire Lane
Des Plaines, IL 60016-;7520
847-;298-;1594
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
t am taking the time to write you on behalf of myself and
thousands of other Americans who I know are behind Microsoft. We
support efforts at seeing the Microsoft Corporation freed of further
litigation. The past three years have tested Microsoft's ability to
produce innovative products, and I expect to see a boost to our
economy once the law suit ends. Microsoft has not hurt the consumer.
In view of the fact that our nation prides itself on freedom of
enterprise, I have difficulty, understanding why the government
initiated this law suit in the first place. We are raised to believe
that with hard work and innovation, one can achieve any success, but
obviously, this is not true. The price for success is the fear of
being criminalized by one's own government. Shameful.
I feel the settlement, proposed and accepted by the U.S.
District Court and Microsoft, is the only solution at present to
salvage the remaining ingenuity Microsoft has brought to this
country and the world. I certainly hope this 60-day public comment
period will make a difference in how the case finally ends.
It is time to let Microsoft off the hook and get them back m the
field of creating software--;if we take that freedom away from
them, then what does that say about our country?
Thank you for your time in this matter.
Sincerely,
Marlene F. Partyka
cc: Representative Henry Hyde
MTC-00029568
20319 82nd Avenue SE
Snohomish, WA 98296
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear General Ashcroft:
I am writing today to encourage the Department of Justice to
accept the Microsoft antitrust settlement. The government needs to
stay out of private business. The United States is the only country
in the world that destroys its own industry. We have destroyed
several major companies with our antitrust laws, take a look at
Eastman Kodak and AT&T before and since government anti-trust
involvement, if you think my position is not tenable. The government
has now undertaken an attack on Microsoft. This issue needs to be
put to rest. The government needs to get out of private business
affairs and allow business to rise or fall in the marketplace. In
order to put this issue behind them Microsoft has agreed to many
terms. They have agreed to release part of the Windows base code to
their competitors which cost them many years and millions of dollars
to develop. This is exactly what the government did to Eastman
Kodak, in the ``public interest'' with their chemical
formulae and Kodak. once a world leader in their field, is now
struggling to survive. Where is the public interest in the
destruction of successful businesses that provide income and
employment to many people and help the balance of payments? Once
again, the government is trying to correct a perceived wrong
(perceived by unsuccessful competitors and their elected
representatives) at the expense of the innovative and successful.
Microsoft and the technology industry need to move forward, the only
way to move forward is to put this issue in the past. Please accept
the Microsoft antitrust settlement and allow them to get on with the
development of the best software business m the world.
Sincerely,
MTC-00029568 0001
MTC-00029569
January 2I, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I would like to express my support of the decision by Microsoft
and the Department of Justice to settle the antitrust lawsuit that
has occupied federal court for three full years. Through the
settlement, Microsoft will pay for its misdeeds by opening parts of
its code to other software manufacturers so that they may better
compete with Microsoft Windows. Microsoft will also have to make
itself subject to the constant scrutiny of a technical committee
that will oversee the implementation of the various terms of the
settlement. The settlement addresses the needs and viewpoints of
both the plaintiffs and Microsoft well.
Some of Microsoft's opponents would see the suit continue, this
would be a great mistake. Consumers and the IT industry have already
suffered too much in the suit. Continuing litigation can only serve
to further harm consumers. The Justice Department must see that the
proposed settlement becomes formal as soon as this public comment
period concludes.
Sincerely,
Bob Moore
7025 116th Avenue SE
Newcastle, WA 98056
* Lets get this lowsuit over with II has cln??gged or too longe
other compp??es Are using this lowsuit to Compete.
MTC-00029570
215 S. Stale Street
Appleton, WI 549l 1
(920) 739-;1021
Fax # (920) 739-;1565
Fax
To: John Ashcroft
From: Jon A G??oves
Fax: 202-;297-;1454 Pages: 2
Phone:
Date: Jan. 27
Re: microsoft Settlement CC: Rep G??ven
One Odana Court,
Madison, WI 53719,
(608) 274-;7744
January 28, 2002
Attorney General John Ashcroft
U.S. Justice Department
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
This letter documents my ,support for the proposed settlement of
the Microsoft antitrust case, in accordance with the Tunney Act.
This case has been negotiated for over three years under a court-
appointed mediator, and it is time to implement the settlement.
There are many terms in the settlement which individually would
be enough to make sure that competition is increased; the multitude
of them should be a fantasy for Microsoft's competitors Microsoft
has sworn to give its competitors access to all necessary Windows
interface programs so that they can link with and promote their
software products. In addition, Microsoft has agreed to allow the
all-new Technical Committee to monitor its progress in complying
with all provisions.
This case should be finalized soon. Thank you for your
consideration.
Sincerely,
Jon A. Groves
CC: Representative Mark Green
MTC-00029572
January27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The Microsoft antitrust case was unnecessary to begin with,, but
the fact that it has dragged out this long is absolutely ridiculous.
I do not believe that the push for additional litigation is in the
interest of justice; I am of the opinion that the remaining
litigants just want what everybody else wants--;to get into
Microsoft's wallet. A settlement has been proposed that, while it
may not be ideal, is acceptable to both Microsoft and the Department
of Justice. Next week, the courts will determine whether the
settlement is acceptable. I believe it is in the best interest of
the consumer to settle now rather than to drag this case on any
longer.
Microsoft and the Department of Justice have managed, after half
a year of ex??ruciatingly complex negotiations, to reach a
settlement that not only satisfies the concerns of both sides, but
addresses the issues presented by antitrust laws as well. For
example, Microsoft has agreed not to enter into any contract that
would require a third party to distribute Microsoft products at a
fixed percentage, This would prevent
[[Page 28682]]
Microsoft from shutting its competitors out of the market through
exclusive contracts. Microsoft has also agreed to disclose source
code and interfaces integral to the Windows operating system for use
by its competitors.
I do not believe that the settlement is in any way deficient. In
fact, I believe it would be best for the economy and the American
public to finalize the settlement now. I urge you to take the
appropriate action.
MTC-00029573
FROM : JOHN-BURKE
PHONE NO. : 13154514195
Jan. 27 2002 07:55PH P1
5773 Innsbruck Road
East Syracuse, NY 13057
Ph. 315-;656-;0081
Ms. Renata Hesse
Trial Attorney
Anti-Trust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
This letter is to advocate for a swift settlement of the federal
lawsuit against the Microsoft Corporation (U.S. v. Microsoft)
I work for a company that relies on technology for its success.
We service major corporate and manufacturing facilities by building
and maintaining redundant backup safeguards for their critical
energy systems. You could say that our business is to keep others in
business.
How sad for this already damaged economy when the federal
government jumps in to assist Microsoft's competitors in trying to
put one of America's biggest success stories out of business by
forcing a breakup. When consumers are damaged by monopolistic
activities, that's anti-trust. When Microsoft beats its competitors
in the marketplace, that's capitalism.
I have yet to see a situation where software/Internet consumers
did not have a choice, and it would appear to me that many of the
corporate entities screaming for fairness (Oracle, Sun, Apple, AOL/
Time Warner [monopoly- look at my Time Warner cable bill if you want
to see monopoly./]) are fully prepared to play hardball and are in
no danger of starving anytime soon. Billion dollar companies are
tough to view as victims.
We spent eight years under a President who liked to punish
business success. Today the President is different, the country is
different and the world is different. Let's do the right thing and
help business be successful rather than strike them down when they
become successful on their own.
Sincerely,
Taxpayer
MTC-00029574
Jan 27 02 06:55p
STAMATS
??
DATE
??
Trial Attorney
Antitrust Division
Department of justice
601 D Street NW, State 12.00
Washington, DC 20530
Dear Ms, Hess,
As part of a company that assists educational institutions with
the development of effective student recruitment, medi?? and
promotion, and the implementation of institutional enhancement ??es,
I have a solid grasp on the importation of public image and public
pressure.
When ??sseminating a message to the general public through the
media, one key factor to acknowledge is that perception is rea??y
Although consumers may or may not have seen the notions of bundling
by Microsoft as det?? to the??,. ?? after reading the results of the
proceedings many would feel differently.
Thanks to the revolutionary developments by such ??ology ??es as
Microsoft and AOL, we have all or the facts and all sides of the
story more ??at our fingertips than any generation before us. We are
able to access information and communicate via ?? the World Wide
web. Through your online sine ?? we are able to ?? the proposed
settlement that you face and submit our own personal judgments to
you based on our own research.
Upon reviewing this information of the suit and following the
proceedings for file few years it has progressed, it is my belief
that this is a reason??ble ??fer for a settlement in: the suit: and
should be approved.
Sincerely, ??
MTC-00029575
STAMATS
CON?? INC.
Pat Collins
Judge Kolar Ko??ely
c/o Renata Hesse
U.S. Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530 ??
Dear Judge Kolar Kottely:
Late last year the U.S. Department of Justice ??ully reached a
settlement with the Microsoft Corporation. This settlement is
corrently under your review for acceptance, and I am writing to
??ncourage your support for this agreement.
I work in a compelitive business where my hard work ??as paid
??. My success depends on the superior quality of my product and my
ability to sell ??is product to my clients. I have a na??al
inclination to admire any individual or company that finds success
by working hard and having a good product. Microsoft is a great
example of these ideals. Microsoft continues to be an industry
leader because ?? provides the consumer with superior products and
excellent service.
I have never understood why the government seemed determined to
prose??nte a company that provides a reliable product, creates
countless jobs, and s??lates both the economy and innovation. By
bringing this case the government appeared to be m??ent on nothing
more than g??ining ??procedented control over the technology
in??ustry.
Now, over two years since the suit was brought, calmet heads now
seem to be provailing. The DOJ and Microsoft have fashioned an
agreement that represents a true compromise. New reports indicate
that Microsoft will be required to share ??tual prop??rty and must
guarantee flexibility to comp??ter manufactures that equip their
products will Microsoft operating systems.
More importantly though, this settlement represents a vi??tory
for the ??omy, entreprencurs, and consumers. This settlement moving
forwa?? will once again open the door of inves??ment and innovation.
Thank you.
Pat Collins
MTC-00029576
HOUSE OF REPRESENTATIVES
2 STATE HOUSE STATION
AUGUSTA. MAINE
04333-;0002
(207) 287-;1400
TTY: (207) 287-;4469
Ken Honey
Chapel Street
F.O. Box 6
Roothbay, ME 04537
Telephone: (207) 633-;5500
Fax: (207) 633-;5092
Renata Hesse
Department of Justice
601 D Strect NW, Suite 1200
Washington. DC 20530
Dear Ms. Hesse,
Please accept my support of the proposed settlement between
United States vs. Microsoft Corporation.
Rather than beating Microsoft in the free market, AOL and Sun
and others engaged the Justice Department to do it for them. Their
true intention has clearly been to deny consumers their market
choices and instead force them into paying higher prices for lesser
quality products. Competition is the key, not government intrusion.
Without competition, the high technology industry would be
completely insignificant. Microsoft, Sun. AOL, Netscape, and others
all drive each other to lower prices and better products, all the to
benefit of consumers.
The time has come to settle this case. Taking into consideration
the poor condition of the economy, the last thing we need is
additional inane litigation.
Sincerely,
Ken honey
State Representative
MTC-00029577
FROM: CA
PHONE NO. : 207 848 3685
Jan. 19 2002 09: 35AM P1
HOUSE OF REPRESENTATIVES
2 STATE HOUSE STATION
AUGUSTA, MAINE 04333-;0002
(207) 287-;1400
TTY: (207) 287-;4469
Donald P. Berry, Sr.
115 Sca??smont Road
Relmont, ME 04952
Telephone: (207) 342-;5675
Fax: (207) 342-;3045
E-Mail: chema??@northlen??ink.com
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
As a former aducator and current legislator I am writing to
express my support for the proposed settlement reached by Microsoft,
the Department of Justice and several of the State. In reviewing the
points of the settlement I see several benefits perticu??arly for
educators and our schools. In accapting
[[Page 28683]]
this proposal and ending this costly process for all parties
involved we also send a message to the American taxpayers that we
are being responsible. First in holding large companies accountable
for their actions and secondly in knowing when a point has been
reached, after which further expenses in non productive.
I believe that Microsoft has learned, ?? all good companies do,
that they needed to change some of their business practices and
policies. Secondly, they have r??ched an agreement that appears to
be beneficial to many of our nations schools and their students, by
providing resources that will help train and prepare them for the
future. This appeals to me because it puts the resources to work,
rather than a cash settlement that might allow politicians to
wind??all that would not be as productively distributed.
I also see it as beneficial to the parties Involved. The point
has been made to Microsoft, a fair settlement has been negotiated
and I see no further need for added legal expenses to the government
or Microsoft. It Is In everyone's beet Interest to move on Thank you
for consideration of my comments and for all you do.
Sincerely.
Donald P. Berry,
Sr. State Representative
District 109
Belmont, Lincolnville, Morrill, Searsmont, Searsport,
Swanville and Waldo
Printed on recycled paper
MTC-00029578
HOUSE OF REPRESENTATIVES
2 STATE HOUSE STATION
AUGUSTA, MAINE 04333-;0002
(207) 287-;1440
TTY: (207) 287-;4469
Stavros J. Mendros
135 Hogan Road
Le??? ME 04240
Telephone: (207) 783-;6475
E-Mail: [email protected]
January 18, 2002
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
As a businessman involved in the computer field I wish to
express my support for the proposed settlement reached by Microsoft,
and the Department of Justice. I have reviewed the settlement and
find many aspects of it to be unique and beneficial to all
Americans, I have come to realize the critical importance of
training and ongoing development for our teachers and young people.
Our communities will benefit by the opportunities provided by these
future leaders properly trained in the latest technology. This is a
greater benefit to our soclety and workforce than any other program
the government could design using a cash penalty assessed on
Microsoft. I also believe Microsoft has and will benefit from this
experience. They have learned the need to adjust their policies and
procedures; there is no a greater needs to further punish them. It
to also, o time to move on from this long drawn-out legal dispute,
so the people of this country can see the continued healing their
our nation needs, we don't need to see more division, but we do need
to see positive resolution and I believe that is what this
settlement can Offer.
Thank you for consideration of my comments.
Sincerely,
Stavro?? J. Mendros
State Representative
MTC-00029579
HOUSE OF REPRESENTATIVES
2 STATE HOUSE STATION
AUGUSTA. MAINE 04333-;0002
(207) 287-;1400
TTY: (207) 287-;4469
Terrence P. McKenney
14 Cry??tal Lane
Cum??land Center, ME 04021
Telephone: (207) $129-;5472
Rusiness: (207) 773-;8560
Cell phone: 838-;9168
E-Mail:: [email protected]
January 18, 2002
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
As a businessman and legislator I wish to express my support for
the proposed settlement reached by the court appointed negotiator
with Microsoft. and the Department of Justice. I have read the
settlement and find many parts of it to be a win-win option for all
parties, I gee R as a hotter alternative than e cash fine that will
disappear into the federal government's coffers. The practical use
of technology and the training of our youth is the key to our
future. Our communities will benefit by the opportunities provided
by these future leaders properly trained in the latest technology.
This is a greater benefit to our society and workforce than any
other program the government could design.
Microsoft has end will benefit from this experience. They as any
smart and successful business will adjust their policies and
procedures there is no need to further punish them. or to wreak
havoc on the public members who have invested their retirement or
children's college savings in Microsoft stock. It is In all Of our
interests to resolve this matter and move on in a productive way.
Thank you for consideration of my comments,
Sincerely
Terrence P. McKenney
State Representative
MTC-00029580
JACK GAMBETTA, CFP
Certified Financial Planner
ICFP Registered Practitioner
Registered Investment Advisor
Registered Representative or
Mutual Service Corporation
Member NASD and SIPC
January 27, 2002
Attorney General John Ashcroft:
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am a financial planner. I have watched the economy go into a
tailspin because of the lawsuit brought against Microsoft. This
lawsuit put fear throughout not only the tech industry, but also the
entire economy itself. We now hear Congress constantly talking about
ways to bring the economy back, yet hamstrings the one company that
is the major engine of our economy--;Microsoft. Microsoft bas
been charged with an antitrust suit, the basis of which is abuse of
the consumer. Yet, Bill Oates has done nothing more lima help the
consumer with the innovations he has created. There is a
standardization now of computer software where there was none before
More people can use and understand computer programs than before.
Prices are lower, Microsoft has contributed so much to our
technological expertise; the faro that the company is now being
charged with this lawsuit is ridiculous,
Further, I am appalled that the legal system should be brought
into what is basically a battle between technological companies,
First, what do lawyers know about the computer industry? And how can
these self-same people make decisions affecting the use of it? Tilts
whole process was a result of Microsoft rivals trying to rein
Microsoft in through the legal system; however, the legal system is
not just. just legal, influenced more by politics than any real
concern over questionable business practices.
Microsoft has agreed to many terms demanded by the Department of
Justice that go far beyond the original suit, Microsoft tins agreed
to design future versions of Windows with a device to, make it
easier to promote non-Microsoft software; Microsoft has agreed to
open up to third party developers more of its copyrighted coda to
aid in development of third party programs; Microsoft has agreed to
a technical committee to oversee compliance. This is more titan a
lot of companies would do.
I urge you to gave your approval to this agreement and allow us
to move on.
Sincerely.
Jack Gambetta, CFP
email: [email protected]
WEB.JACKGAMBETTA.COM
P.O. Box 100,
One Kent Circle,
Terrace Park, OH 45174
Tel/Fax
(513) 248-;9400 625
Eden Park
Drive Suite 500,
Cincinnati, OH 45202-;6005
(513) 241-;5000
MTC-00029581
FORREST H. MUIRE, JR.
908 PRINCETON MIDLAND, TEXAS 79701-;4159
915-;682-;5087
email, [email protected]
FAX 685-;1091
January 23, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20550-;0001
Dear Mr. Ashcroft:
Please accept the proposed settlement of the Microsoft anti-
trust case. As a long-time user of Microsoft products, I see this
agreement as the most practical solution for competitors to thrive,
short of a break up that
[[Page 28684]]
would risk consumers losing a quality, stable presence in the
software industry.
Seemingly inspired by a lack of monetary support from the last
administration, this government intervention into the business world
has been off base from the start. With this deal, Microsoft's market
position is clearly weakened, so any further litigation would be an
even more misguided attempt to manipulate the marketplace on behalf
of the ``consumer.'' Microsoft will allow computer
manufacturers broad freedoms to configure Windows with the software
of their choice without preference in future licensing deals and
will provide competitors with extensive access to its internal code,
among other agreed measures to expand competition.
Considering the constant verification by a committee of experts
to monitor the deal, I ask for you to support for this overly fair
settlement. The IT industry and the economy will greatly benefit
from the return of stability to the software marketplace. Thank you
very much for your support.
Sincerely,
Forrest Muire
MTC-00029582
HOUSE OF REPRESENTATIVES
2 STATE HOURSE STATION
AUGUSTA. MAINE
04333s-;0002
(207) 287-;1400
TTY: (207) 297-;4469
Russell P. Treadwell
Da??cus Road
RR 2. Box 1570
Car??el. ME 04419
Telephone: (207) 848-;5123
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington. DC 20530
Dear Ms. Hesse,
I understand we are in a period where you are looking for public
comment on the proposed settlement with Microsoft. In light of this
I would like to urge you to accept the proposed terms and resolve
this mater for the following reasons.
I believe Microsoft has been significantly and negatively
impacted by this more than three year suit. True some of their
practices may have been heavy handed and even detrimental to
competitors, but those same competitors such as AOL, Sun and Oracle
have used the weight and resources of the state and federal legal
system to attack and distract Microsoft. I say it is time to end
this legal attack, and stop the use of taxpayers monies. Microsoft
bas agreed to a very reasonable and, fry for the public and our
schools, a extre??ly generous and beneficial program to compensate
fox any supposed harm that was done.
I strongly encourage you to move forward on resolving this
matter and ending the battle that has consumed so much time and
resource of the government and associated parties.
Thank you very much for all your efforts on behalf of the
American people and for reviewing my comments.
Best Regards,
Russell P. Treadwell
MTC-00029583
THE NICHOLS STREET ASSOCIATION
138 NICHOLS STREET
NORWOOD, MA 02062
Loretta Fehm
January 25, 2001
I am writing to have my thoughts on the proposed settlement
between Microsoft and the United St Department of Justice entered
into the record in accordance with the Tunny Acts requirement of
public Comment on such settlements, I think the settlement plan is a
good one, and one that reaches the necessary balance between
antitrust enforcement and the need for as competitive a software
market as the U.S. economy can have, Consumers benefit from a
competitive market in ways that the kind of regulations previously
argued in this case would nullify. Whereas a free and competitive
market will drive down prices and hasten the pace of innovation, a
heavily regulated market, or a software market including a carved-up
Microsoft would stow the pace of innovation and allow companies to
sit on their hands and let prices gradually rise.
Consumers deserve the best high tech market available to them,
and the best high tech market is the one that innovates, The
innovations of the last decade were primarily responsible for the
creation of jobs, Investment, and wealth at rates never before
witnessed In any economy anywhere. The success of the
``New'' Economy In the i990s was not a boomlet, in my
view, but a harbinger of things to come In the future, If the
government will allow consumers and entrepreneurs to successfully
guide the market toward higher levels of competition and innovation.
I hope my thoughts can be entered into the record and also hope
the court sees fit to approve the settlement proposal. It is the
best way for the economy to start to put. this recession behind it
and begin to build for the future.
Sincerely.
Loretta Fehm
MTC-00029584
January 15, 2002
Judge Kolar Kottely
U.S, Department of Justice, Antitrust Division
601 D Street. NW, Suite 1200
Washington, DC 20530
Dear Judge Kottely,
I am writing to express my opinion as a consumer in the case of
the U.S. Department of Justice and state attorneys general versus
Microsoft.
This case has been loitering and squandering our hard-earned tax
funds for long enough, As a consumer of Microsoft products, I do not
feel cheated by the company. Even the limited number and size of
computer stores here In Des Moines, we nave a choice in brands of
spreadsheets, operating systems, and word processors. When setting
up Internet access on a new computer, there was always the choice
between Notscape Navigator or Internet Explorer as a web browser.
This case came about for the protection of consumers. Yet, we as
taxpayers are more concerned about spending tax money to pursue this
case than we ever were about Microsoft being a monop??y Please give
thoughtful consideration to settling this case quickly.
Thank you,
Lore McManus Solo, APR
Public Relations Director
Strategic America
MTC-00029585
Judge Kolar Kottely
Renata Hesse, Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Judge Kolar Kottely:
There is not an American who has not been touched by or seen the
impact of the slowing national economy. As the chief executive
officer of a strategic marketing and communications firm, I have
witnessed first hand what the slowing economy has meant for our
clients and our employees. Across ??owa, we have seen many of our
most important employers either close their doors or endure severe
layoffs in these troubled economic times.
Almost every decision our government makes right now has a
direct impact on the health of our national economy, The decision
whether to accept the Department of Justice's settlement with
Microsoft is no exception.
Microso?? is one of the most successful corporations in the
country. The growth of this company has translated into thousands of
jobs, new innovation and the creation of still more technology-based
companies. Unfortunately, as the economy began to inch toward
recession, the government began its legal wrangling with Microsoft.
Next came the major decline of technology stocks. The creation of
new technology based companies and jobs slowed as well.
Settling the Microsoft case will help give the economy the boost
it needs toward recovery. Plus, the conditions of the settlement
were fair for all involved. Under this agreement, Microsoft must
allow computer makers to remove their software and they will be
prevented from punishing companies that promole Windows competing
products. A neutral commission will oversee all elements of the
settlement.
I respectfully urge you to accept the Department of Justice's
settlement with Microsoft.
Sincerely.
Michael R. Schreurs
Chief Executive Officer
Strategic America
MTC-00029586
PAULA ENLOW
702 Laramie Street
Manhattan, KS 66502
January 23, 2002
Ms. Renata Hesse
Trial Attorney
U.S. Department of Justice, Anti-trust Division
601 ``D'' Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
I am writing to express my opinion regarding the Microsoft anti-
trust case
[[Page 28685]]
settlement recently proposed by the Bush administration.
I believe that if the court wishes to act in the best interests
of all Americans, it will approve the settlement, end this case and
allow Microsoft and the American tech industry to move forward
unencumbered by ongoing litigation. Continuing to pursue this matter
in court is a waste of precious time and energy and sets a very bad
precedent for undue government interference in private business.
Even under the terms of the settlement, Microsoft will be operating
under a level of scrutiny that I feel is unnecessary given the facts
of the case. However, I believe that the Bush settlement offers our
best hope for moving onward and upward, and I urge the court to
accept that settlement.
Best regards,
Paula Enlow
MTC-00029587
TIM HOLLOWAY
600 N. 12TH STREET
INDEPENDENCE, KS 67301
January 21. 2002
Judge Kolar Kottely
Attention: Renata Hesse
U.S. Department of Justice, Antitrust Division
60t D Street, NW, Suite 1200
Washington, DC 20530
Dear Judge Kolar Kottely,
I've seen firsthand the blows the economy has been dealt in the
last year. As an aeronautical technician, I have seen many in our
industry lose their jobs due to cutbacks resulting from the
precarious state of the economy.
The economy is soft. In addition to layoffs, the public has also
seen a decrease in their investment portfolios. The public and our
economy need to be reassured. Approving the current Microsoft
settlement proposal is a step toward that reassurance. That
assurance will restore investor's faith, providing cash flow for
innovation and a demand for employment in one of the driving sectors
of our economy--;high tech. The boom of the 90's and even 2000
was driven by the health of the technology sector. I believe we can
help turn our economy around if we help the tech industry get back
on its feet. In my opinion, settling the case against Microsoft is
the first step in that direction.
I appeal to you and your wisdom to support settlement of the
suit, allowing America's economy to rebound at this time when we all
could use some encouragement.
Sincerely,
Tim Holloway
MTC-00029588
January 22, 2002
Ms. Renata Hesse
Department of justice Antitrust Division 60I D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
Last Er??day the drop in the Dew and NASDAQ were the largest
since just after the attacks of September 11th The catalysts were
cautious forecasts from two technology stock market ??ants IBM and
Microsoft.
This sector has see a great deal of change and turmoil over the
past several years on both .sides of the pendulum- sky level highs
and rock bottom lows. Many peaks and valleys have stemmed from the
Microsoft antitrust case Just prior to the case, and even for so. me
time into it, many would argue that loch stocks were infla??ed. It
was the belief of several financial analysts that the valleys
ca??sed by the case were necessary to deliver a reality check to
??ch investors. All of this may in fact be trite.. Today, however,
is a different day, a different time, and our nation's economy is
facing very different challenges.
Disheartening news continues to surface in the Wall Street
Journal during this time of economic downfall--;airline
difficulty, telecommunication battles, and the technology industry's
downturn. Stories like the one on Friday take the market on another
sharp decline taking the Dow down 78 points and the Nasdaq down 55.
As part of the investment and insurance sector, these are issues
that bit very close to home both for my clients and myself. With the
obvious effects this case has had on the market, I believe k is
prudent during this time of economic instability to settle this
case.
Thank You,
Brian Hewitt
President
Group Benefits, Ltd
MTC-00029589
Thomas & Loft Stambaugh
8501 Bayview Drive
Wildwood Crests NJ 08260
(609) 522-;2754
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft,
I am writing you to inform you of my opinion in regards to the
Microsoft settlement issue. I support the settlement that was
reached in November. This settlement will end three years of costly
litigation and will give our economy the boost it needs. Please
support this settlement so Microsoft can get back to business.
This settlement contains many provisions that will benefit the
technology industry and companies attempting to compete with
Microsoft. Under this agreement, Microsoft has agreed to grant
computer makers broad new rights to configure Windows to promote
non-Microsoft software programs that compete with programs included
within Windows. Microsoft has also agreed to share more information
with other companies, such as various internal interfaces within
Windows and any protocols implemented in Windows. Microsoft is more
than willing to carry, out all these provisions if it delivers a
resolution to this dispute.
Again, I urge you to support this settlement so our resources
can be funneled into more important issues. Thank you for your
support.
Sincerely,
Thomas & Lori Stambaugh
MTC-00029590
DOROTHY GRATION
1004 FEARRINGTON POST
PITTSBORO, NC 27312
FAX: 919-;542-;3090
PHONE: 919-;542-;1963
FAX TRANSMISSION SHEET
TO:
FAX:
FROM: Dorothy Gration
DATE:
# PAGES (including cover sheet):
MESSAGE:
1004 Fearrington Post Pittsboro, NC 27312
January 16, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to express my gratitude that this whole mess
involving Microsoft and the federal government looks as though it
may finally be coming to an end. I have never agreed with the
federal government's pursuit of Microsoft and have long thought of
it as a waste of taxpayer money, as well as an attempt to sully the
reputation of someone who has lived the American dream. That being
said, this settlement offers an opportunity for both parties to walk
away satisfied and should be accepted/implemented as soon as
possible. The settlement agreement contains provisions that provide
for increased competition, the fostering of innovation and greater
accountability. The highlight of this agreement is Microsoft's
agreement to share its most valued intellectual property in order to
advance the industry.
This is a settlement that is three years too late and I strongly
urge that it is implemented as soon as possible. Thank you for your
efforts in Washington.
Sincerely,
Dorothy Gration
MTC-00029591
January 26, 2002
The Honorable Colleen Kollar-Kotally
U.S. District Court, District of Columbia
c/o: Renata B. Hesse
Antitrust Division, U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Judge Kollar-Kotally:
I write to express my concerns about the proposed settlement of
the Microsoft cases. As the executive director of business/trade
association, I consider myself to be very pro-business and generally
supportive of free enterprise and open competition. However, in
order for the free enterprise system to properly work, there must be
an opportunity for businesses to actually compete against each
other! I respect Microsoft for what they have been able to
accomplish, but I believe Microsoft has gone too far in some of its
practices. As a result, a competitive market in their sector no
longer exists, and businesses and consumers are hindered and
frustrated. I understand that a settlement has been proposed that
the Department of Justice has found acceptable. I further understand
that various attorney generals have also found the proposed
settlement acceptable. The Attorney General of the Stare of Utah is
not one of them. I support his position and
[[Page 28686]]
believe that the term, of the settlement are too lenient on
Microsoft. Adoption of the proposed settlement would do nothing but
delay the imposition of reasonable sanctions, prohibitions, and
conditions on Microsoft until the next government action is taken,
if any. In the meantime, Microsoft would essentially walk away with
a hand-slap and the ability to continue its anticompetitive
behavior. This could also set a precedence that would allow other
businesses to take similar control of a market, because they know
that they could get away with only lenient punishment, if''
any.
I ask the court to conduct hearings to determine an appropriate
remedy that will reasonably penalize Microsoft for past actions and
prevent future violations of antitrust laws. Such an action will
only be in the best interest of all businesses and consumers.
Sincerely.
Ann Gambro, executive director
Utah Hotel & Lodging Association
cc. The Honorable Mark Shurtleff. Utah Attorney General Jonathon
Jaffe, The MWW Group
MTC-00029592
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, N W
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to your office because I support Microsoft and its
desire to settle the antitrust lawsuit that the government brought
against them. The case has proven to be very lengthy, and I feel
that if the government's case were solid, they would have been able
to prove it by now. In the meantime, Microsoft's business has been
adversely affected.
The settlement proposed several months ago offers Microsoft's
competitors an unparalleled opportunity for market growth. Microsoft
is boldly agreeing to broad changes, between disclosing Windows
program codes it developed to other companies, as well as enabling
computer users and manufacturers to remove Internet Explorer and
other Windows-based programs from their PCs.
Most importantly, the settlement does not seek the breakup of
Microsoft. The company clearly wants to put this dispute behind
them. I hope you agree and will settle the case.
Sincerely,
Nadine Hearth
3426 Whitnor Court
Sacramento, CA 95821
Telephone: 916-;483-;7723
MTC-00029593
FAX COVER SHEET
Herbert L. Stevenson
602 Fifth Street #1003
Kirkland, WA 98033
Tex 425 828 8575
Fax 425 889 0659
SENO TO Company name Depf. Of Justice From Herhert L. Stevenson
Attention Ms. Renata B. Hesse Ds?? 1--;27--;62
Office location Office location
Fax number Phone number
(202) 301-;145?? (425) 828--;8575
COMMENTS
The Microsoft proposed settlement seems more than fair. The
#35 million spent to punish Mirosoft is an excessive amount of
taxpayer money; especially since the company has done so much for
the U.S. Economy
MTC-00029594
January26,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I support Microsoft and its desire to settle the antitrust
lawsuit that the government brought against them, I believe it is in
the best interests of our country and the economy. This lawsuit has
brought untold damage to the economy and it was one of the factors
leading to the recession. I am sure you are aware that Microsoft is
a leader in its field and spawned many opportunities for other
companies. Our country is presently the leader in the computer
field. Don't prolong this any more and allow for the possibility for
other countries to take the initiative away from our country. It
potentially has security impacts that can only be measured in future
developments. I hate to use an old cliche but as Microsoft's
business goes so goes America's lead in this field. Don't delay the
settlement.
As a graduate of the University of California in electrical and
electronic business, I believe that I have an inside view of the
problem. While Microsoft is a fierce competitor on one hand, they
still allow many opportunities for others to enter and succeed in
the business. Further delay in this suit will only cause further
erosion of these opportunities. Believe me there are many legitimate
actions that Microsoft can exercise that will decrease these
opportunities. Like any good management plan, i1 must include
protection of the company and its stockholders.
The settlement proposed should be grabbed and taken to the bank.
The most important aspect of the proposal is that it will not
break-up Microsoft. I hope you agree and settle this case now.
Sincerely,
Richard Hearth
3426 Whitnor Court
Sacramento, CA 95821
Telephone: 916-;483-;7723
MTC-00029595
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The Department of Justice's decision to settle the Microsoft
antitrust case is reasonable and should be supported. The case has
dragged on for long enough, and has had a very detrimental impact on
the tech industry as well as our economy. Further litigation might
be good for the litigators of the county, but will do little else
other than act to further slow down an already slow business
environment.
The terms of the settlement agreement are fair. With the
assistance of a mediator, the parties engaged in extensive
negotiations. As a result, the remedies provided by the settlement
agreement are well thought out and provide adequate solutions to the
complaints lodged by the plaintiffs. Upon the approval of the
settlement agreement, Microsoft will change many of its business
practices in an effort to restore fair competition to the software
world. Microsoft has agreed not to enter into any contracts that
would require third parties to exclusively promote or distribute
Windows. They also agreed not to take any retaliatory action against
those who distribute software that competes with Windows.
I see no need for protracted litigation in this case, especially
in light of what Microsoft is willing to do to resolve the case.
Thank you for working toward a resolution of this case. It is
time to move on.
Sincerely, ??
Glen A. Phillips
MTC-00029596
JACQUELYN R. REESER
5827 Hollyhock Drive
Lakeland, FL 33813
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
With the pending results of the Microsoft settlement, I am
pleased with the outcome. This agreement should reestablish
Microsoft on one main issue...business development. As a self-
employed person I know that your reputation can make or break you.
The fact that Microsoft extended restrictions and obligations to
products and technologies that were not found to be unlawful by the
Court of Appeals, convinced me that they are more interested in new
growth and development of their company.
Microsoft will now share technology information with its
competitors that will allow them to place their own products on
Microsoft's operating system. Additionally, Microsoft will use a
uniform pricing list when licensing Windows out to the twenty,
largest computer companies in the nation. I give my full support to
Microsoft's settlement and wish them the best.
Sincerely, ??
Jacquelyn R. Reeser
MTC-00029597
J. R. Mitchell
10315 159th Avenue SE
Snohomish, WA 98290
January 23, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I think the Microsoft antitrust case was ridiculous to begin
with; it was all a matter of Microsoft's bitter competitors trying
to retaliate against Microsoft's success and
[[Page 28687]]
innovation. As part of free enterprise, their competitors had die
opportunity to be just as successful as Microsoft- However, they
just weren't as smart and didn't create such exceptional products.
That's certainly no fault of Microsoft's. I use Microsoft's products
ever3: day in my job as a Computer Specialist. I could give you
several reasons why I prefer Microsoft's products to anyone else's.
Microsoft is conceding a great deal in this settlement. It is
more than fair to their competitors, if not giving them an unfair
advantage that they don't deserve. Microsoft is giving away their
technology to their competitors and has agreed not to retaliate
against software or hardware developers that come up with competing
products. They've also agreed to make their Windows software more
cross-platform compatible so that users and OEMs can easily
configure Windows with other software.
Please accept this settlement for the good of the country.
Microsoft is not harming consumers and this settlement
unquestionably does not harm their competitors. Please help put a
long-awaited end to this lawsuit.
Sincerely, ??
Jimmy R. Mitchell
MTC-00029598
JOHN EBERT
5910 PROVMENOR GOUNTRY GIUB DRIVE
GHARLOTTE, NORTH GAROLINA ??
January 26, 2002
Attorney General John Ashcroft
United States Department of Justice
950 Pennsylvania Avenue SW
Washington, DC 20530
Dear Mr. Ashcroft,
The current status of the American government's case against
Microsoft Corporation concerns American citizens like me. It
threatens the principles of free enterprise in our country.
Microsoft has been targeted because of its overwhelming success and
innovation. Other companies have been saddled with government
oversight for the opposite reason. The American people axe happiest
when businesses are allowed to do what they do best without outside
influence. Government interference is rarely a solution. Continued
action by the government against Microsoft will likely have negative
effects on the American consumer. This is no time for that.
Microsoft has attained its position in industry because it is
innovative, not predatory. Microsoft has created jobs without
political interference. It is an economic engine without rival.
The settlement at hand is fair and just. It should be embraced
so that we an all see Microsoft get back into the business of
changing people's lives through innovative software technology. Our
country desperately needs engines like Microsoft to bee running at
full capacity again. Please consider accepting the present
settlement. Everyone will receive considerable benefit. Thank you in
advance for your attention to this matter.
Sincerely yours,
John Ebert
MTC-00029599
OUTGOING COMMUNICATION
Raytheon Missile Systems Company
P.O. Box 11337 (Bldg: MO2)
Tucson, Arizona (USA) 85734-;1337
Raytheon Missile Systems Company
1511 E. Hermans Road
Tucson, Arizona (USA) 85706
TO: RENATA B. HESSE NO. OF PAGES: 7 (INCLUDES COVER SHE??
TELEPHONE:
FAX: 202-;307-;1454 DATE: 27 JAN 2002
202-;616-;9937
FROM: KENNETH J. HENDRICKSON VOICE TELEPHONE: (520) 7943853
E-MAIL ADDRESS:
Kenneth--;J--;[email protected].
com
ALTERNATE (520) 794-;0603 FAX: (520) 794-;4860
FAX NUMBERS: (520) 794-;9087
CC:
COMMENTS ON PROPOSED MICROSOFT SETTLEMENT
Date: 27 January 2002
To: Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
From: Kenneth J. Hendrickson
2747 W. Anklam Rd., Apt E.
Tucson, AZ 85745-;3705
Dear Renata,
Executive Summary:
I strongly urge the Department of Justice (DoJ) and the Court to
modify the Proposed Final Judgment (PFJ) in order to achieve an
effective remedy against a continuing Microsoft monopoly, and the
harm to consumers that will inevitably continue to result.
The modifications I recommend are:
1 Microsoft must be required to publish COMPLETE and ACCURATE
documentation for all Application Programming Interfaces (APIs),
protocols, and file formats, for *ALL* Microsoft products. This
should include a requirement to publish full and complete source
code. However, as the source is likely to be very difficult to
understand, Microsoft must also be required to fund an independent
documentation effort to study the source code and completely and
accurately document it. Such documentation and source code must be
made available AT NO CHARGE to anybody who wants it, via an Internet
download. In addition, Microsoft must NOT be allowed to require a
Non-Disclosure Agreement (NDA) in order to obtain this important
information.
2 Security considerations must NOT be an excuse for continuing
the harmful practice of closed, hidden, and/or undocumented APIs,
protocols, and file formats. All algorithms, APIs, protocols, and
file formats, must be COMPLETELY and ACCURATELY documented,
*ESPECIALLY* when those algorithms, APIs, protocols, and file
formats are needed for security and authentication. Sections III.J1
and III.J2 should be entirely stricken from the PFJ.
3 Microsoft must not be allowed to use its patents offensively.
A patent is a government granted monopoly. As Microsoft already has
a monopoly (even without government granted patents), and has been
convicted of illegally ABUSING that monopoly, the government should
not be in the business of granting Microsoft more monopoly power
with which to abuse its competitors. The PFJ should be amended to
forbid Microsoft from using its patents offensively. Before
preparing my comments, I read the following documents in their
entirety:
1 Original Complaint
http://www.USDoJ.gov/atr/cases/f1700/1763.htm
2 Findings of Fact
http://www.USDoJ.gov/atr/cases/f3800/msjudgex.htm
3 Stipulation and Revised Proposed Final Judgment
http://www.USDoJ.gov/atr/cases/f9400/9495.htm
4 State's Proposed Final Judgment
http://www.NAAG.org/features/microsoft/ms-
remedy--;filing.pdf
5 Competitive Impact Statement
http://www.USDoJ.gov/atr/cases/f9500/9549.htm
Justification for my Recommended Modifications:
Full Disclosure of Algorithms, APIs, Protocols, and File
Formats:
I was very heartened to note that the PFJ would require that
Microsoft must publish details of its APIs (section III.D. and
others). However, as published, this provision will be largely
ineffective, because it does not include Free Software and Open
Software development efforts.
Microsoft's own lawyers indicated in 1999 that Microsoft views
Linux and the GNU GPL license as its greatest threat.
http://www.OReillyNet.com/pub/a/mediakit/linux.html
Microsoft produced a white paper on the GNU GPL license, in an
effort to dissuade companies from trying and/or using Linux.
http://www.Microsoft.com/business/downloads/licensing/
Gp1--;faq.doc
Although Linux and the Free Software movement are not yet a true
competitor to Microsoft (as stated in the Findings of Fact), Linux
offers the best hope for a future competitor to Microsoft. In light
of this, the DoJ and the Court should tailor the PFJ such that it
does not lock out Free Software and Open Software developers from
the fruits of the PFJ.
Free Software and Open Software developers must be granted
access to COMPLETE and ACCURATE documentation on *ALL* algorithms,
APIs, protocols, and file formats for *ALL* Microsoft products,
without any cost, and without any nondisclosure agreement (NDA)
requirements.
The most complete and accurate documentation is the actual
source code, and so that should be made available. The source code,
however, is not enough. It is likely that the source code will be
very difficult to understand; therefore Microsoft must also be
required to fund an independent documentation effort to study the
source code and completely and accurately document it. Such
documentation and source code must be made available at no charge to
anybody who wants it, via an Internet download, without any
requirement for an NDA.
Without this extremely important provision, the most important
potential
[[Page 28688]]
competitor to Microsoft's monopoly will not be able to compete. In
addition, without this important provision, Microsoft will be able
to *CONTINUE* using closed and secret APIs, Protocols, and File
Formats to extend, enhance, and broaden their existing monopoly. It
is absolutely necessary that the PFJ be amended to require that
Microsoft COMPLETELY and ACCURATELY document *ALL* of their
algorithms, APIs, protocols, and file formats, and provide this
information at no charge and without NDA requirements to everybody,
via a free Internet download.
Security:
The security technique espoused in the PFJ is ``security
through obscurity''. The idea is that if nobody knows how
authentication or encryption is accomplished, they will not be able
to bypass the authentication routines or break the encryption. There
is a significant problem with this idea (and thus with the PFJ): IT
IS FALSE! It is widely known and accepted within the security
community that ``security through obscurity'' is no
security at all.
SECURITY THROUGH OBSCURITY IS NO SECURITY AT ALL.
The following papers detail why ``security through
obscurity'' is no security at all:
http://Slashdot.org/features/980720/0819202.shtml
http://www.VnuNet.com/Analysis/1126488
http://www.Wide0pen.com/print/101.html
http://www.NightfallSecurity.com/whitepapers/obscurityeu.html
http://www.Albion.com/security/intro-8.html
http://www.eCommerceTimes.com/perl/printer/11060/
http://Adjacency.org/essays/securitythroughobscurity.html
http://www.Treachery.net/jdyson/toorcon2001/
Many more examples exist; they can be found with a Google
search.
http://www.Google.com/
search?hl=en&q=%22security+through+obscurity%22&
btnG=Google+
Search
This is perhaps the most important comment I am making, so I
will repeat this important point:
SECURITY THROUGH OBSCURITY IS NO SECURITY AT ALL.
Bruce Schneier and Adam Shostack, two of the world's foremost
experts in the area of computer and network security, have given a
list of recommendations for Microsoft to follow in order to achieve
more secure products, after the recent announcement by Bill Gates
that Microsoft will henceforth be concentrating on security.
http://www.SecurityFocus.com/news/315
IT WILL BE NOTED THAT NOWHERE IN THIS LIST OF RECOMMENDATIONS IS
THERE ANY NOTION THAT ANYTHING SHOULD BE KEPT SECRET. Instead, the
recommendations from Messrs Schneier and Shostack encourage complete
openness, full and accurate documentation, and a waiting period
before Microsoft's proposed protocols and encryption methods are
implemented. This is in order that the security community may
examine Microsoft's proposed protocols and encryption methods and
algorithms in order to find weaknesses, and repair those weaknesses,
*before* they are implemented and insecure systems are built and
fielded.
Messrs Schneier and Shostack also encourage Microsoft to publish
its entire source code, even though they have no hope that Microsoft
will do this. The source code should be published so that the
security community can examine Microsoft's *implementations* for
flaws and weaknesses, and suggest remedies for those flaws and
weaknesses. The most well designed security protocols and encryption
algorithms can be made worthless by poor implementation. The only
way to check the implementation is to have access to the source
code.
It is in the best interests of all those who must use Microsoft
products, and all those who use computers on networks that include
Microsoft products (which includes the entire Internet), that Messrs
Schneier's and Shostack's recommendations are adopted by Microsoft.
Paradoxically, it is also in Microsoft's best interests to adopt
*ALL* of Messrs Schneier's and Shostack's recommendations!!
If Microsoft is forced to COMPLETELY and ACCURATELY document
*ALL* algorithms, APIs, protocols, and file formats--;without
restriction--;and make the documentation and source code
available to everybody without charge, and without any NDA
requirement, bugs will be found in Microsoft's code and fixes will
be suggested, just as they are for other open source OSes such as
Linux, FreeBSD, NetBSD, and 0penBSD. Microsoft's products will
improve as a result of this process. Microsoft will receive the
benefit that all Open Source software receives: bug fixes, increased
security, and increased stability, all at no cost to Microsoft.
Microsoft will be opposed to this requirement, arguing that
their business will be destroyed by forcing their code open. This is
not true! COPYRIGHT LAW AND CONTRACT LAW PROVIDE ALL THE LEGAL
PROTECTION THAT MICROSOFT REQUIRES TO MAINTAIN THE VALUE IN THEIR
SOURCE CODE. In the end, however, it does not matter if Microsoft
benefits from the PFJ. What does matter is that Microsoft's monopoly
abusing powers are restricted, and that the DoJ and the Court create
the possibility for competitors to Microsoft to arise in the
marketplace.
Microsoft has been found guilty of abusing their monopoly. One
of the ways that Microsoft has abused their monopoly is by using
closed and proprietary algorithms, APIs, protocols, and file
formats, and by changing them from time to time in order to create
incompatibilities with non-Microsoft products, and with older
Microsoft products that Microsoft wishes to make obsolete.
Microsoft's *secret* algorithms, APIs, protocols, and file formats
are part of the problem that the DoJ and the Court must remedy. Such
secrecy cannot be part of the solution, even when it comes to
``anti-piracy, anti-virus, software licensing, digital rights
management, encryption or authentication systems, including without
limitation, keys, authorization tokens or enforcement
criteria''. Furthermore, in light of the fact that SECURITY
THROUGH OBSCURITY IS NO SECURITY AT ALL, there is never any
justification for any ``governmental agency of competent
jurisdiction'' to ``direct Microsoft not to''
COMPLETELY and ACCURATELY document *ALL* algorithms, APIs,
protocols, and file formats--;without restriction--;and make
the documentation and source code available to everybody without
charge. Therefore, section III.J1 and III.J2 must be entirely
stricken from the PFJ. As it is necessary to require Microsoft to
COMPLETELY and ACCURATELY document *ALL* algorithms, APIs,
protocols, and file formats--;without restriction--;and make
the documentation and source code available to everybody without
charge, and without any NDA requirement, it is not reasonable to
require ``any of the Plaintiffs to keep secret any information
or documents obtained from Microsoft'' as detailed in section
IV.A.3 of the PFJ. This section should also be stricken from the
PPJ.
Patents
Patents are a government granted monopoly. Microsoft has been
judged to have a monopoly, and further, to have illegally abused
that monopoly. For this reason, Microsoft should be forbidden from
using its patents offensively. The government should not continue to
grant a preferential monopoly to a convicted monopoly abuser.
This is especially true in the case of Open Software and Free
Software. Those who develop Free and Open Software and give it away
to the world for no charge are greatly enhancing the wealth of the
entire world. These people CANNOT afford to participate in the
patent system. In addition, those who develop Free and Open Software
are often philosophically opposed to the patent system, and would
not participate even if they could. These people who are greatly
increasing the world's wealth, should not have the patent system
used against them by a convicted monopoly abuser.
Microsoft has already threatened to use patents as an offensive
weapon against Linux, the Free Software Foundation, the GNU Project,
and other Free and Open Software producers. Full details can be
found in the 2nd Halloween document.
http://www.OpenSource.org/halloween/
In order to protect the Free and Open Software movement from
future monopoly abuse, Microsoft must be forbidden from using their
patent portfolio offensively. This prohibition should *never*
expire. A clause to this effect must be added to the PFJ in order to
achieve an effective remedy.
Enforcement
A *very* strong enforcement mechanism needs to be put in place
by the DoJ and by the Court. We have arrived at this juncture today
because Microsoft failed to abide by previous consent decrees (1994)
of the Court. Microsoft has proven themselves to be obstinate and
belligerent. They cannot be trusted to obey this PFJ without strong
and effective oversight. If by some unfortunate circumstance, the
DoJ and the Court decide not to require Microsoft to disclose all
source code, then an especially vigorous enforcement mechanism must
be put in place to ensure COMPLETE and ACCURATE
[[Page 28689]]
documentation of *ALL* algorithms, APIs, protocols, and file
formats. I would suggest that the PFJ should include a clause
stipulating that if anybody finds any errors or discrepancies in
Microsoft's documentation, then at that point the Technical
Enforcement Committee shall have the authority to immediately force
the disclosure of all relevant source code, in order to force
compliance with the COMPLETE and ACCURATE documentation requirement.
Dan Kegel's Comments
I would like to add that I am a co-signer to Dan Kegel's
comments.
http://www.Kegel.com/remedy/letter.html
I fully agree with Mr. Kegel's entire letter, including all
links therein, and strongly urge that each of the problems noted
therein must be remedied in the PFJ before the PFJ is adopted by the
DoJ and by the Court.
Thank you,
Kenneth J. Hendrickson
*All web references were current on 26-;27 January 2002,
during the writing of these comments.
MTC-00029600
GLORIORS EVENTS
January 26, 2002
Attorney General John Ashcroft
United States Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing in support of the Microsoft antitrust settlement
agreement. I would appreciate your consideration of the following
comments about this issue.
The settlement agreement will dramatically change the way
Microsoft conducts its business. Microsoft will license Windows to
the main computer manufacturers at the same price, and on the same
terms. Microsoft has also agreed not to retaliate against those who
distribute or promote software that competes with Windows. These
concessions should subdue concerns about any ``predatory''
business practices by Microsoft.
I find it interesting that the stock market took a rum for the
worse when this litigation ensued. In the interest of stimulating
the economy, doesn't it make sense to put an end to the lawsuit so
that Microsoft can focus on its research and development endeavors?
Thank you for your commitment to settle this case.
Sincerely,
Vetra Bilsland
MTC-00029601
294 E Frog Hollow Road
Science Hill, KY 42553
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
Thankfully, an end is in sight for this whole mess. The
Settlement reached in November answers all the proble??s that were
brought against Microsoft at the beginning of the trial
MTC-00029602
44260 Riverview Ridge Drive
Clinton Township, MI 48038
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I was happy to hear that Microsoft had reached a settlement late
last year with the Department of Justice. I believe the settlement
will be good for consumers and the entire computer industry.
Microsoft has agreed to many concessions in order to wrap up this
case and move forward. For example, Microsoft has agreed to document
and disclose for use by its competitors various interfaces that are
internal to Windows'' operating system products. This type of
provision is groundbreaking for an antitrust settlement. Also,
Microsoft agreed to the creation of Technical Committee that will be
charged with monitoring the company and assuring they meet all their
obligations.
I believe the federal government, especially in the current
environment, could make better use of their resources than
continuing this litigation. I commend you for your efforts to
resolve tiffs case and hope you will finalize the settlement soon.
Sincerely,
Andrew Emerson
cc :Representative David E. Bonior
MTC-00029603
January 20, 2002
Attention: Renata Hesse
Judge Kollar Kottely
U.S. Department of Justice, Antitrust Division
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Judge Kollar Kottely:
I am writing regarding the Microsoft anti-trust case and the
lessons we should have learned from past experiences.
As I recall, nearly three decades ago, the government initiated
another antitrust lawsuit against a computer industry leader.
Success was not defined by a legal victory in that case, but
rather by the enormous business expenses incurred by the defendant.
These expenses clearly resulted in allowing its competitors to catch
up. After three years of the Microsoft case, it seems we are now at
that point. This lawsuit has gone on long enough and any legal
victory has lost its relevance because the financial price has been
paid.
I urge you to move forward by approving the proposed settlement.
This settlement is in the best interest of the industry, the
economy, and the consumer. It only makes sense to put an end to it.
Thank you for your efforts on this important case.
Sincerely,
Rachel Maher
Rachel Maher
22939 Bauserman Road
Easton, KS 66020
MTC-00029604
ARTISAN DESIGN, INC.
Computer Aided Design & Manufacturing
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
After three long years of court rattles, Microsoft and the
Department of Justice have reached settlement regarding the
antitrust suit. I believe that this settlement will be beneficial to
both, the IT industry and the consumers alike It is necessary that
those who are involved in the suit put aside their differences and
work to put this issue behind us.
Even though the settlement goes farther than what Microsoft
would have liked, I believe that settling the case now is the right
thing to do help the industry and the economy move forward. This
settlement is fair and reasonable and was reached at after extensive
negotiations with a court-appointed mediator present.
There has been enough money spent, and the current settlement is
perfectly acceptable. I feel it is incumbent upon the government to
put a swift end to dais ordeal so that all involved parties can
return to work. Thank you.
Sincerely,
Jake Breedveld
35595-F Curtis Blvd, * East??ake; Ohio 44095 * (440)
953-;0147 * Fax: (440) 953-;0148
MTC-00029605
13537 Glencliff Way
San Diego, CA 92130
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I would like the Justice Department to settle its antitrust
lawsuit against Microsoft. I am aware that both sides reached an
agreement in November that would end the case, and I support it. I
believe if Microsoft appears to take the settlement seriously, and
the company is taking steps to move on and to promote competition.
Giving users a greater ability to integrate non-Microsoft programs
into Windows will be beneficial to consumers and software developers
everywhere. Additionally, Microsoft will level the tech playing
field by using a uniform price listing when licensing Windows out to
the largest computer makers in the nation. Also, Microsoft will not
retaliate against companies that use, sell, or promote non-Microsoft
products. I believe it is the time to end the case.
Please settle the Microsoft case and allow them to concentrate
on further innovating the way man), of us conduct our personal and
professional business.
Sincerely,
Walter Liao
MTC-00029606
URGENT
To: John Ashcroft, Esq.,
Voice Number:
Fax Number: 1-;202-;307-;1454
Company: Attorney General USA
From: MORRIS KAY
Company:
Fax Number: 305-;792-;4243
Voice Number: 305-;792-;4041
[[Page 28690]]
Date: 1/27/2002
Number of Pages: 2
Subject: Settlement of MICROSOFT pending action.
Message:
Honorable Attorney General:
Attached herein please find a letter expressing my sentiments on
the matter related above,
Respectfully Yours,
Morris Kay
20185 E Country Club Drive, #1701 Aventura, FL 33180
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing today to express my support for the recent
settlement proposed to Microsoft by the DOJ. The truth is that I
have a terrible time seeing what continued litigation would
accomplish if the last three years were so unproductive. I would
really love to see this lawsuit wrapped up so that taxpayers don't
have to waste any more money. Additionally, wrapping up this case
will help boost the slowing economy and give the IT industry much
needed revitalization.
I believe that the settlement is a fair one that encompasses all
points of concern. Microsoft's adherence to terms of this contract
ensures that future antitrust violations will not occur. Competitors
may also put their concerns to rest as a result of several of
Microsoft's agreement. Microsoft has agreed to create future
versions of Windows that will allow for non-Microsoft products to
function therein. Also, Microsoft has agreed to disclose Windows
interfaces and Intellectual property.
It is my hope flint Microsoft desire to comply will help to
quell the concerns of the dissatisfied states. Please make the
necessary decision to wrap this matter up as soon as possible. This
will be in the best interest of the IT industry, the economy and
consumes.
MTC-00029607
January 25, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I support the settlement reached in the Microsoft antitrust
case. The settlement reflects the compromises and concessions of the
parties, especially Microsoft, over three months of negotiations
with the assistance of a court-appointed mediator. I feel that
approval of the settlement by the Federal Court would be in the best
public interest of America. The settlement addresses the complaints
brought against Microsoft simply for using all its legal rights.
Microsoft's legally protected innovations in its software code for
its internal interface and server interoperability protocols will be
disclosed to the whole industry, while its other copyrighted and
patented intellectual property will be licensed on non-
discriminatory terms to any company that wants to use it. Computer
makers will be given more flexible contracts to work with non-
Microsoft companies like AOL Time Warner, RealNetworks, and
Symantec. A technical committee will ensure the terms are followed.
These terms will provide an opportunity for the American computer
industry to make better use of the very widely used Windows
operating system, and will allow Microsoft to get the lawsuit, with
its distraction and expense, over with.
I appreciate your strong stand in favor of the Microsoft case
settlement. Thank you.
Sincerely,
MTC-00029608
01/28/2002 MON 09:05
FAX 914 693 2247
THE REMBAR COMPANY INC 001/001
Michael Misch
39 Chestnut St
Dobbs Ferry, NY 10522
January 27, 2002
Attorney General John Ashcroft
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
The antitrust case between the federal government and Microsoft
has been going on for much too long, and I would like to see the
settlement that the two sides reached become final so that the
matter can be put behind us once and for all. The two sides agreed
to a reasonable compromise that will foster competition in the
industry, and I see no reason to pursue litigation beyond this
point.
The technology industry has struggled as a result of this
lawsuit, and the nation's economy has been negatively affected as
well. Once this settlement becomes final, consumers will have more
choices in the marketplace, and independent companies will have a
better chance to compete in the future. Microsoft has agreed to
design future versions of the Windows operating system so that
computer makers may remove Microsoft software and replace it with
that of its competitors. Microsoft has also agreed to license its
products to the 20 largest computer makers at uniform prices. These
and the many other concessions that Microsoft has made in order to
achieve this settlement are certainly enough to stop this
litigation.
I realize that this settlement was reached after long and
arduous hours of negotiations, and [appreciate your decision not
pursue this matter any further. I am hopeful that no more action
will be taken against Microsoft in the future.
Sincerely,
MTC-00029609
2401 Zion Hill Road
Weatherford, TX 76088
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing you today to express my opinion in regards to the
Microsoft settlement issue. I support the settlement that was
reached in November and believe this agreement will serve in the
best public interest. I am a Microsoft supporter and feel that this
company should not be punished for being successful.
Microsoft has agreed to all terms and conditions of this
settlement. Under this agreement, Microsoft must grant computer
makers broad new rights to configure Windows so as to promote non-
Microsoft software programs that compete with programs included
within Windows. Microsoft has also agreed to document and disclose
for use by its competitors various interfaces that are internal to
Windows'' operating system products.
MTC-00029610
William Young 4142 Dundee Drive
Murrysville, PA 15668-;1010
January 21, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As a supporter of Microsoft, I write you in reference to the
recent settlement. The settlement is fair and reasonable and should
be adopted immediately. After three years of negotiations, further
delay would be ridiculous. What more is there to discuss? It is time
to get on with business and get our technology industry back to
normal.
Not only has Microsoft agreed to make changes in licensing and
marketing, but has agreed to design future versions of Windows that
will allow for easier installation of non-Microsoft software. Also,
in an anti-trust first, Microsoft has agreed to disclose internal
information about the Windows operating system. An outside committee
will monitor Microsoft's compliance with the agreement.
By stopping any further federal action on this case, we are
allowing our technology industry to get back to business. I urge you
to help get this agreement moving. I thank you for your help.
Sincerely,
cc: Senator Rick Santorum
Representative Melissa A. Hart
MTC-11
Mr. John Martin
3208 SW Sena Drive
Topeka, KS 66604
January 23, 2002
Renata Hesse, Antitrust Division Public Comment
U.S. Department of Justice
6I)1 D Street, NW, Suite 1200
Washington, DC 20530
Dear Renata Hesse,
Thank you for accepting my comments regarding the rod-trust
lawsuit against Microsoft. It seems to me that the companies that
pushed the suit against Microsoft their competitors: AOL, Oracle,
San Micro are about the only ones who don't want to see the case
settled. I can understand that as rival high-tech companies, they
will do ``whatever it takes'' to compete, but I think this
case has gone on long enough.
The DOJ is on the right track to try to settle their case
against Microsoft. It is my hope that eventually all of the states
involved in the case. will do the same. I hope that the companies
that Cave pushed this lawsuit
[[Page 28691]]
from the beginning see the writing on the wall and start to worry
about competing for customers in fire marketplace rather than the
cou??troom.
I strongly urge you to sign off on the settlement terms that
have been a agreed to by both sides so that we can at least begin to
clean up the mess this case has caused.
Sincerely,
John Martin
MTC-00029612
iNetXperts
January 25,2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Please make haste to settle the lawsuit in the case of USA vs.
Microsoft. I believe that if the terms of the settlement are
enforced strictly they are sufficient to prevent Microsoft from
engaging in unfair business practices with OEMs and software
companies.
It is better for consumers, businesses and the IT industry that
this suit is ended.
Sincerely,
Mark Heaney
CTO
iNetXperts Corporation, 113 N. Washington St. #490,
Rockville, MD 20850
tel 202.262.9348
fax 603.947.4732 www.inetxperts.com
MTC-00029613
DATE: January 27, 2002
PHONE:
TO: Renata B. Hesse Department of Justice
FAX: 202-;307-;1454
FROM: D. Shah
PHONE: 707-;538-;5900
RE: MICROSOFT SETTLEMENT
FAX: 253-;484-;2789
Number of pages including cover sheet: 7
Message
Pursuant to the Tunney Act, please find enclosed my comments on
the Microsoft settlement.
January 27, 2002
VIA FACSIMILE & EMAIL
Renata B. Hesse
Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Sir/Madame.
The Microsoft settlement proposed by the Justice Department
should not be. approved by the court. It does not adequately prevent
Microsoft from abusing its monopoly powers, It is also a poor
solution in that it will be complicated to enforce and Microsoft
will have economic incentive to try to circumvent the agreement.
No doubt, there are precise legal standards that the court must
follow in reviewing the settlement and making its decision. As a
layman, I cannot hope to address the intricate legal issues as to
what is explicitly mandated by statute and precedence--;I can
only speak in broad terms. My background is that of an engineer
(M.S. in EECS) with 20 years of experience using PC software at work
and at home and that of a founder and officer of a small software
development company. I comment mostly from the perspective of an end
user of PC software products. As a businessman, I have had
substantial, experience negotiating, implementing, and litigating
busincss agreements. I have found that the best agreements are those
that (1) align the economic interest of the two parties (i.e. there
is no economic benefit to either party to try to circumvent the
agreement) and (2) are simple. The proposed settlement agreement is
neither.
As one example, the language in the agreement requires Microsoft
to provide access to certain information only to viable business
entities. In paragraph III(J)(2)(c), the proposed settlement states
that Microsoft will not be required to provide API's or
Documentation to an entity that fails to meet ``reasonable,
objective standards established by Microsoft for certifying the
authenticity and viability of its business.'' Arguably, this
language could allow Microsoft to exclude access to small
businesses, start-ups, and Linux developers (or other non-profit
type software developers) if it was in Microsoft's economic interest
to do so.
For a second example, the proposed settlement requires Microsoft
not to automatically override OEM settings. Paragraph III(H)(3)(b)
says Microsoft must not seek permission from the end user for
``[automatic] alteration of the OEM's configuration until 14
days after the initial boot up of a new Personal Computer.''
What does the agreement mean by initial bootup? Strictly speaking,
``initial bootup'' could be interpreted to mean the first
time the unit is turned on by the manufacture or the local retailer
(for testing & verification purposes) and not the first time the
end user turns on the machine. (As an aside, why does Microsoft need
to be able to automatically override any settings? It should be
sufficient to notify the user in the manual or on-line help that the
user can change his settings by selecting the proper options in his
application program or Windows operating system.) If such a simple
item is this complicated to interpret and enforce, what does it
augur for the rest of the agreement?
While it may not be the perfect solution, separating Microsoft
into two independent companies meets the criteria stated above for a
good business agreement. One, a breakup is simple, once it is
completed, it is done--;there is no agreement to interpret. Two,
a breakup eliminates any economic incentive for Microsoft to
circumvent an agreement because there is no agreement to circumvent
once the breakup is completed.
My strong feelings about this case arise because I constantly
find I have no real choice in my selection of PC operating systems
and applications. As much as Microsoft's legal counsel and
economists may argue about the user having choices and being better
off, I find from my personal experience, that I am not.
If I am unhappy with my GM car, I can easily switch with my next
purchase to a Toyota, Ford, Chrysler, Honda, etc. at zero cost. If I
dislike my Sony television, I can buy a Zenith, JVC, Philips, or
Panasonic, etc. without constraint. Nowadays, I have the freedom to
switch phone service or my television reception from cable to
satellite. Even with my PC, I can switch from Dell to IBM, Compaq,
HP or others, But, I cannot switch from my use of the Microsoft
operating system or Microsoft applications without cost. so
substantial as to be prohibitive.
On the surface it may appear that there are alternatives to
Microsoft's operating systems and applications. However, there are
six barriers which effectively prevent me from using a competitor's
product. First, because of Microsoft's market dominance, there is
far more support from other vendors for Microsoft's products. For
example, an application program or peripheral such as a printer may
not be supported under either the Apple or Linux operating systems.
Other vendor's import/export utilities, synchronization functions or
the like may only support dominant Microsoft applications such as
Word or Excel. Similarly, web sites may be designed to function best
with Microsoft Internet Explorer as compared to competing products.
As a concrete example, consider my brother's experience with the
Apple Imac. My brother's children learned to use the Imac growing up
because of its superior user interface as compared to Microsoft
Windows, However, my brother is now finding that it is too difficult
to support the Imac on his home network and DSL line. Vendors just
do not provide the same support for Apple that they do for Windows.
Additionally, it is too difficult to maintain both Windows systems
(for his use) and Apple systems. Therefore, he is forced to switch
the children to using Microsoft Windows.
Second, if I wish to use a non-Microsoft product in an area
where Microsoft is entrenched, I will be at a tremendous
disadvantage when trying to share information. I will be speaking
French when everybody else is speaking English. For example, given
that everybody uses Microsoft Excel or Word, what real freedom do I
have to select a different word processor or spreadsheet (even if
superior) when I will be unable to share files with my clients or
vendors.
Third, I have invested substantial time in learning to use and
debug my existing Windows and Microsoft application programs. I
cannot afford to switch to a competing operating system or
application and start at ground zero on the learning curve. The
amount of time it takes to learn to use a new application is
enormous. It far outweighs the dollar cost of purchasing the
product. To become as proficient in another word processor
application as I am in Microsoft Word after years of use would take
months at the very least. No one can afford that cost. As
applications grow larger and more complex, this barrier grows larger
and larger in Microsoft's favor.
In an interview, Bill Gates himself points out that Microsoft's
biggest competitor (when they release a new operating system) is
themselves. Users who have already invested time and money in
purchasing and using an older version of Windows are loathe to
switch to a new version because of the cost in dollars and time to
install, debug, and learn the new version. Imagine then the
[[Page 28692]]
barrier posed to a completely new operating system or application.
Fourth, there is risk that if I am using a non-Microsoft
product, the vendor will eventually be forced out of business by
Microsoft and I will ultimately have to switch to the Microsoft
product anyway. This was the case with my Lotus and WordPerfect
products. In both case, I was finally forced to switch to Microsoft
products when the vendors went out of business. Now, if I need to
choose between a Microsoft and competing product, the safe decision
is to select Microsoft because it is likely the competitor will be
eventually driven out of business.
Fifth, there is a cost to switch to a new application because of
prior work (data files) that has been generated by the old
application. If I have a substantial amount of prior work saved in
data flies produced by my Microsoft applications, switching to a
competing application means I lose compatibility with all of my old
work. At the very least, I will have to spend time converting the
data files with the accompanying risk of losing information or
formatting.
Sixth, It is risky to use a non-Microsoft product because
Microsoft has the upper hand. in keeping its applications in step
with operating system upgrades and taking advantage of new operating
system features. Microsoft is in a position to improve its products
faster because it is also in charge of the underlying operating
system. By the same token, Microsoft applications are least likely
to break with operating system upgrades. No competitor has that same
advantage. (If Microsoft argues there is no advantage, then it
should have no complaint against being separated into two
independent companies).
In summary, I do not have the freedom to choose to use Microsoft
products because they are superior but am forced to use them because
the investment in time and potential risk to use competing products
is too high.
There are many examples where Microsoft did not have a superior
product (or, initially, even a product), but ultimately succeeded
due to its monopoly position. For a non-exhaustive list, consider
the products: Word (vs. WordPerfect), Excel (w. Lotus), Internet
Explorer (vs. Netscape), Microsoft Project (vs. Symantec's Timeline
project management software) and even Windows (vs. the Macintosh).
In each of these cases, Microsoft did not have the first product or
even the better product. Yet, over time in each case Microsoft has
either put the other product out of business or become the clear-cut
market leader.
In these cases, Microsoft did not succeed because it was the
innovator; but because it had a monopoly in the operating system
market. It could use its ownership of the operating system and its
monopoly profits to enter new markets and eventually push out the
competition. No other company, even dominant ones such as Lotus,
WordPerfect, and Novell with all their financial resources, has been
able to compete successfully against Microsoft because of the
monopoly Microsoft enjoys.
Another example of the monopoly power Microsoft enjoys, is its
recent decision not to include JAVA in its latest version of
Windows. Given the runaway popularity of JAVA, only a monopoly such
as Microsoft could risk making that decision. In a competitive
environment, no operating system vendor would decide to exclude JAVA
and pursue its own initiative. Microsoft can afford to do that
because it wields such absolute control over the operating system
market. A consumer has no alternate choice of operating systems so
he is forced to accept Microsoft's decision to exclude JAVA from the
operating system.
As a final example, consider the operating system called
``OS/2'' developed and marketed by IBM. There can be no
question that it was a superior operating system and years ahead of
Microsoft Windows. It failed however because of the barrier posed by
Microsoft's installed base of users. The fact that even IBM failed
to make any headway in the market is further evidence of Microsoft's
power as a monopoly.
Microsoft may argue that the reason for its success in all of
the above examples is that it had the better product or strategy.
This is patently false. Microsoft was not the first one to introduce
a windowing operating system, an internet browser, the concept of a
spreadsheet, a word processor, etc. Microsoft has only been
successful in first copying and then outlasting the competition.
Microsoft argues that there is no need to regulate Microsoft as a
monopoly because technology and the product landscape change so fast
that not even Microsoft can exercise monopoly powers. I think it is
just this argument taken in context of Microsoft's success time
after time over the last decade that is the smoking gun. No company
other than Microsoft has been so successful. It is so unlikely that
in an area where the pace of change is this fast, that any one
company could be so successful in every endeavor it undertakes, that
it must be taken for granted that the company enjoys substantial
monopoly power.
Contrast Microsoft's situation to that of microprocessors and
Intel. Intel is a dominant market leader but faces fierce
competition from AMD, Motorola, and others in the microprocessor
market. As a result, we have seen a 100-fold or more increase in
price vs. performance (comparing a 33MHz 80386 processor to a 2GHz
Pentium II) over perhaps the last 10 years. Imagine a situation
where Intel enjoyed the same monopoly position that Microsoft does
today. That is to say, there was effectively no competition from
AMD, Motorola, or others. Without doubt, we would not have seen the
same increase in performance vs. price. Intel would not have been
forced It innovate and cut prices at the rate it is forced it do so
today in order to maintain its market leadership. This is clearly
evident from the reported news where each time AMD releases a
microprocessor, Intel responds by cutting prices. Of course, there
would still have been improvements in microprocessor performance if
Intel was a monopoly, but nowhere near the current pace. Intel would
have made slow improvements at its own unhurried pace under little
pressure from others.
Microsoft has at times argued that it is not a monopoly because
the price of its operating system software (as a percentage of the
price of a PC) has come down over the years and this is
characteristically untrue of monopoly pricing. Even if the price of
software is in fact lower today than 10 years ago, it is a
meaningless statistic. The relevant question is what would the price
of software be today if Microsoft did not enjoy a monopoly position.
As compared to the innovation fostered in the microprocessor arena
due to competition, software performance has advanced relatively
slowly, [here certainly has not been a 100-fold increase in the
performance of Microsoft's software over the last 10 years.
In considering the proposed settlement, the court must balance
protecting Microsoft's rights and our system of free enterprise
against the damage to society from continued abuse by Microsoft's
monopoly position. I think the court must err on the side of the
consumer. On a big-picture scale, there is no great damage to
Microsoft, its shareholders or the concept of free enterprise by
breaking Microsoft into separate operating companies. On the other
hand, there is potential for great damage to innovation and free
enterprise if Microsoft is free to remain a monopoly and to use its
power to stifle new products and block the success of other
companies.
In conclusion, the question simply comes down to whether the
typical end user is better off because of Microsoft's monopoly. As a
typical end user, I am firmly convinced that I am not and hope that
the courts will take strict action.
Sincerely,
D. Shah
MTC-00029614
A??ey General John Ashcroft
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 50530
Dear Mr. Ashcroft:
I am retired from a career in engineering. J have used a
vatlet3, of computer systems, and I have found computing with
Microsoft's Windows software to be easier, more affordable and in
many way more productive than other systems. Windows has brought
welcome uniformity to the way people work with computers.
It is certainly time to accept the settlement in the Microsoft
antitrust case. The lawsuit was, in some ways, a big joke by
Microsoft's less successful competitors intended to give Microsoft a
raw deal in court. I am glad that you took the lead in directing
your department to earnestly work with the mediator appointed by the
new judge. The settlement will le?? the American computer industry
get back to concentrating on making better, innovative products and
maintaining America's leadership in the world of technology.
The anti-Microsoft forces have agreed not to pursue the
outrageous and ridiculous demand made by a few of them to
``divide and conquer'' Microsoft. In return, Microsoft has
agreed to give up much of its legal rights to its intellectual
properly, and business practice. Until now, no company in antitrust
litigation has ever had to give its industry the copyrighted
software codes to the internal interfaces to its operating system
programs. Nonetheless, Microsoft has agreed to license
[[Page 28693]]
those codes to any party on reasonable and non-discriminatory terms.
Microsoft will release companies that make computers from exclusive
marketing agreements, allowing them to mix and match Windows with
other operating systems. Also, even the largest equipment builders
will be offered a uniform price and term list, instead of individual
negotiations. The Windows desktop program included with installation
will be made easy to remove and replace with those made by others,
such as AOL Time Warner, which owns its own browser and internet
messaging software, With government-sponsored engineers who are
experts in software monitoring the agreement and investigating and,
complaints, the public can be assured of compliance.
Thank you for your support of the settlement. It should be
approved, because it is in the best interest of the American public.
Sincerely,
Allan J. Hessel
Hessel Properties Inc.
MTC-00029615
Jo Phylis Esman
3864 NE 167th Street
North Miami Beach, FL 33160
January 25 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I support your efforts to see that the Federal Court approves
the settlement of the Microsoft antitrust case. I believe that
approval of the settlement would be in the best interest of the
United States. I do not think Microsoft ever had or abused a
monopoly. I think Microsoft simply build the best, easiest to use,
value-priced software. There have always been software choices to be
made in buying computers. Microsoft just won out. However, the
settlement is good in that it gets the lawsuit behind Microsoft and
opens up the Windows software to the industry.
Just as Microsoft gives up much in the settlement, the computer
industry gains much in being better able to integrate its products
with Microsoft's Windows operating system, or avoiding Microsoft
products. Microsoft will disclose its software code for internal
Windows interfaces and license its other software to any company
that wants to use it. Computer makers will no longer be required to
adhere to exclusive marketing agreements with Microsoft, and will be
able to modify Windows to remove Microsoft's program, such as
Internet Explorer. So, I do not see what Microsoft's competitors
could really still want in a reasonable way. Some competitors,
having been ignored by customers, seem to think they can become
bigger fish in a smaller pond by seeking to dismember and destroy
Microsoft. That would not be good for America and its leading place
in the worldwide computer industry.
MTC-00029616
Renata Hesse
Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street, IV. W., Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
I understand that you are currently reviewing public comments on
the Microsoft settlement and I am pleased to have this chance to
participate.
John Ashcroft's team was smart to 9o after a reasonable
settlement of this case that has been hanging around since 1998. My
only disappointment is that Kansas was not one of the many states
that joined this settlement, I do not understand why our Attorney
General Carla Stovall has banded together with Microsoft's
competitors to pursue breaking up this strong and vibrant company.
Ignoring the real benefits of this settlement ignores the needs of
the technology industry and the national economy.
I am appalled that private corporations like Oracle and AOL-Time
Warner are so committed to continued litigation. Apparently the
decision-makers in this company refuse to see the negative effects
their actions and this suit have had on the economy as a whole.
They, along with the AGs still on the case, also seem to believe
that break-up is the only acceptable solution. I believe this shows
their true colors.
For those who believe Microsoft was guilty of some wrong doing
this agreement provides many solutions. For example, it provides
guaranteed flexibility for computer manufacturers, Microsoft must is
not allowed to punish manufacturers who do not promote Windows and
Microsoft is required to share certain sensitive information that
will definitely put their competitors at an advantage. And to top it
all of, a Technology Committee that will make sure Microsoft is
living up to all aspects of the settlement will guard the integrity
of the agreement.
Please accept this settlement.
Sincerely
MTC-00029617
Corrie A. Kangas
I 17.55 W. ?? 12th Street
Overland Park, KS 66210
913-;406-;3649
January 21, 2002
Renata Hesse
Antitrust; Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
I encourage you to view settlement of the Microsoft antitrust
suit as a positive solution designed to benefit all parties
involved. The proposed settlement addresses every point of the
charges upheld by the court.
It is certainly a step toward rejuvenating our lagging economy
and restoring faith and investment in the ever changing, ever
lucrative tech sector.
This competitor driven lawsuit, thinly veiled as consumer
advocacy, has actually done more to harm the consumer than protect
it. To date, more than 30 million dollars of taxpayer money has been
spent on this lawsuit that has affected the consumer through little
more than financial implications. The lawsuit has dragged the
economy down, giving a bearish outlook toward tech investments,
thwarting new innovation. The American public is ready for closure.
I urge you to review the settlement before you, and to concur it's a
suitable conclusion for all.
Sincerely,
Corrie Kangas
MTC-00029618
January 28, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue
Washington, DC 20530
Dear Mr. Ashcroft,
If you build a better mousetrap the world will beat a path to
your door. They did, it has.
I write to you today to express my opinion that the Microsoft
antitrust case lacks merit, in that, it does not represent the good
or the will of the public, it represents only special interest
groups who, as they are finally finding some acceptance realize that
their own intellectual properties might be challenged by the
government. Microsoft created a better product than their
competitors. It should not be prosecuted for its success.
Microsoft is not the only operating system. It has many
competitors who are rapidly closing ground(unix 1innux ect.)
Hampered by greedy litigation, government regulation, and time it
may not survive. This company is no Standard Oil or Enron There is
only slight evidence of what is known in the parlance of southern
lawyers and horse traders as ``sharp practice''. If you
buy a Rolls Royce with accessories included, you should not sue the
provider because the radio is difficult to remove and the Honda
radio you want to install may not fit.
The case against Microsoft should be immediately dismissed. The
right to create, incorporate, innovate and merchandise are
recognized as free enterprise in this country.
Sincerely,
Will Taylor
2855 Jordan Woods Dr.
Lawrenceville, Georgia 30044
MTC-00029619
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
Late last year the Justice Department and Microsoft reached a
long sought after compromise in the anti-trust case. I understand
that in order to comply with the Tunney Act members of the public
at= provided with the opportunity to provide comment on the
settlement.
There is no doubt that this case against Microsoft has been art
interesting one to observe. The issues of this case are fairly
simple to grasp, the government is basically contending that
Microsoft has violated anti-trust laws through its business
practices and has in fact committed consumer harm.
One interesting aspect of this case is that throughout the last
four years that we have watched this case unfold and have heard
reports of the impending break-up of
[[Page 28694]]
Microsoft we have yet to be shown one sliver or'' evidence that
demonstrates consumer harm.
Another aspect of this case is not so much interesting as it is
painful. In I998 when this case first began, our country was in the
midst of a healthy economy. The New Economy was really beginning to
look real. However, as this case began to pick up steam and break-up
rumors were rampant the tech economy began to drift downward.
Americans have experienced the impact of this lawsuit first hand in
their investment accounts and lost jobs.
The DOI and Microsoft have deemed this settlement satisfactory.
It outlines remedies for Microsoft that appear to he equitable given
what has held up in lower courts. The compromise now on the table
will bring an end to a suit that has already cause significant
damage. I urge you to accept it.
Sincerely,
Sharon Miller
MTC-00029620
Joyce O. Thedy
933 Beverly Garden Dr.
Metairie, La. USA 10002-;5001
[email protected]
January 27,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The settlement agreement reached between the Justice Department
and Microsoft was welcome news, and I hope that it is implemented
after the close of the public comment period.
The agreement will provide additional opportunities for software
companies to compete with Microsoft products. Microsoft has agreed
to allow competition from non-Microsoft programs within its Windows
operating systems, and it has agreed to allow its distributors and
licensees to deal in products other than those produced by
Microsoft.
Whether or not these additional opportunities for competition
will result in an increase in products and consumer choice remains
to be seen. However, the purpose of this case and the settlement are
to open avenues of competition, not to guarantee the success of the
competitors.
Thank you for the opportunity to voice my opinion.
Sincerely.
Joyce Thedy
933 Beverly Garden Drive
Metairie, LA 70002
MTC-00029622
BONNIE BERGGREN
January 19, 2002
Renata Hesse
Trial Attorney
Antitrust Division
Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
As a political activist in Kansas, I do my best to follow
current events and to take seriously my responsibilities as a
citizen by exercising my rights and fighting to uphold the liberties
I maintain as a citizen of this great nation. This letter is a small
way for me to use these values to state the reasons I believe
settlement of the Microsoft anti-trust case is overdue and serves
the interests of Microsoft, their competitors and the consumers of
these products.
Though many are wary of government interference in business, the
damage this lawsuit has caused from an economic and developmental
standpoint justifies settling under the terms of the current
proposal. In an attempt to move on with business, however
restricted, Microsoft has offered to be subject to review by an
onsite technical committee, having access to all areas at all
times--;at Microsoft's expense. This provision leaves Microsoft
with time and loyalty as the only advantage over their competition.
Now, more than ever, it is imperative that we preserve the
freedom to innovate and promote free commerce. Approval of the
settlement will allow our industry to move forward, freeing the
courts and our nation to focus on some of the more demanding issues
of today.
Thank you,
Bonnie Berggren
MTC-00029623
1622 Plum Street
San Diego, CA 92106
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing to you on behalf of Microsoft regarding the
antitrust suit of the Department of Justice against Microsoft. I
personally feel that this litigation is absolutely a waste of time
and energy. 1 feel very strongly on this issue and believe that
companies that cannot compete in the open free market should not run
to the Federal Government for help.
As a physicist I have used computers at home and work. Microsoft
has not been my favorite supplier of software (too unstable and
crash prone). Only casually have I followed the details of the
government's case against Microsoft. However, as a consumer [ don't
feel that Microsoft has done me any harm. In fact quite the
opposite--;their bundling of suites of programs with their
browser has saved me money, and has furnished the industry with a
single standard.
My suggestion is to move on to more pressing matters.
Thank you for your consideration.
Yours truly.
Myer Geller
Tel: 619,223.8425
Fax:619.523,8885
E-Mail: [email protected]
MTC-00029624
Steve Loney
3032 Aspen Road
Ames Iowa 50014
January 3, 2002
Judge Kollar Kotelly
c/o Renata Hesse, Trial Attorney
Antitrust Division
U.S. Department of Justice
601 D Street, NW, Suite 1200
Washington, DC 20530
Dear Judge Kotelly:
For over a year now our country has been facing serious economic
problems. The stock market is weak, the economy is waning, and
Americans are losing jobs. There is not one definitive reason why we
are facing these economic hard times and our recovery is dependent
upon several factors.
It is important that we make smart decisions about everything
that may influence our economy. One bright spot on the economic
horizon is the proposed settlement between the United States and
Microsoft. This proposal is a fair settlement for all involved and
will provide benefit to our economy.
While some may argue this settlement is not a good one, a fair
review of its provisions demonstrates that it strikes a good
compromise. Among other things, Microsoft will be required to share
its intellectual property and an independent committee will be
established to ensure that Microsoft is following the rules of the
agreement.
For over twenty years Microsoft has been a leader of our
national economy and its growth. When the government threatened to
assert new and excessive regulations on this strong corporation its
impact was felt throughout the economy. By allowing this settlement
to take place the case will come to a fair conclusion and the best
interests of our country will be served.
Thank you for your time.
Sincerely,
Ames, Iowa
MTC-00029625
William Bellamy
3919 Highwiew, Road
Chailotte, ?? 28210
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Washington, DC 20530
Dear Mr. Ashcroft:
The purpose of this letter is to voice my support of the
settlement. Microsoft has been at the forefront of the technology
industries for years. It is through their dedication to innovation
that Microsoft has been able to forge their way in this industry.
Microsoft has done more for this country than any other company in
technology industry. I believe that raising legal battle in this
case is altogether unwarranted. Despite these sentiments, I am
pleased that there has finally been resolution in this issue.
The terms of the settlement show Microsoft's further dedication
to resolve this issue. One of the most important aspects of this
resolution is that Microsoft will now license Windows at the same
rate to the twenty biggest computer makers. PC makers will not have
to gain favor with Microsoft in order to receive the same rate on
the Windows system. This should give PC makers a little more freedom
in the negotiations process.
To summarize, I believe that the terms of this agreement are
fair and should be enacted
[[Page 28695]]
with haste. Thank you for your time regarding this issue.
Sincerely,
William Bellamy
MTC-00029626
January 26, 2002
Sury S Tumuluri
2475 Brookshire Drive # 80-;9
Schenectady, NY, 12309
(H) 518-;381-;1885
(W) 518-;385-;0581
e- mail: [email protected]
To,
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
Please permit me to express my opinion of the settlement that
was finally reached in the antitrust case against Microsoft. It is
my opinion that this settlement is fair and should be accepted by
the all parties involved in this case.
The settlement disciplines and restrains Microsoft adequately
such that it will not have a monopoly on the Technology and yet
leaves it free to continue with its excellent and monumental work. I
am among those who felt pleased that Microsoft agreed to design all
future versions of Windows to be compatible with the products of its
competitors and desist from retaliatory tactics.
We should also note that the settlement would also be ensured by
a technical oversight committee that will monitor Microsoft's
business practices in future to be sure that they comply with the
settlement.
I am writing this letter to request you to support this
settlement and ensure that the future of American business in
general and IT Industry in particular is not stifled and side
tracked.
Thank You,
Sincerely,
(Sury S Tumuluri)
MTC-00029627
Ms. Renata Hesse
U.S. Department of Justice--;Antitrust Division
601 ``D'' Street--;Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
Thank you for this forum to share my thoughts regarding the
continuing case against the Microsoft Corporation.
The Microsoft Corporation is one of country's leading producers
and is certainly a worldwide leader in the growing technology
market. I believe this company is an excellent model for study of
the free enterprise system. We must always remember that Microsoft
was not always the giant it is today, instead this company was
created from virtually nothing. It was the innovations and business
savvy of its founders that have brought it to the pinnacle of
success.
It is the nature of the business world that when a company finds
success it becomes the target of its adversaries in the business
world. This is part of our system. What I do not believe is part of
our system is when the government sets its sites on company simply
because it is successful.
The success of this company is felt by all of us. Microsoft has
provided good products that make all of our lives easier. These
products are easy to use and relatively inexpensive. The company has
worked hard to get where it is today and I am sure works just as
hard to stay there. This is not a crime.
What is disturbing is that the pursuit of Microsoft has also
been felt by all of us. We are living in a very strained economy.
Prior to the onset of this suit, the computer and information
industry was truly booming. Since the suit began, however, this
sector of our economy stalled dramatically. The effects of this slow
down have been felt throughout the markets and have negatively added
to our strained economy.
I can only assume that the agreement is a fair one since both
the Justice Department and Microsoft have agreed to its provisions.
It is my hope that the court will approve this settlement.
Sincerely,
MTC-00029628
Sornson Masonry Construction, Inc.
7520 Valley St
Dalton Gardens, ID 83815
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
There has recently been a settlement to the antitrust lawsuit
between Microsoft and the Department of Justice. While we do not
agree with the relentless pursuit of the Microsoft Corporation, we
are happy to see that a settlement has been reached. The United
States government needs to move on and worry about more important
issues.
Microsoft will now be working much closer and communicating much
more with their competitors. They will be giving their competitors
code and other information that makes-up the Windows operating
system. It is also our understanding that they will be allowing
their competitors to remove Microsoft-made software from Windows,
and replace it with non-Microsoft software. Enough is enough.
Microsoft agreed to terms that extend well beyond what was issue
in the initial suit, just for the sake of ending this senselessness.
We support this settlement and would like to see it implemented as
soon as possible.
Sincerely,
David W. Sornson
Cheryl A. Sornson
MTC-00029629
January 23, 2002
Renata Hesse, Esq.
Trial Attorney
Department of Justice, Antitrust Division
601 D Street NW, Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
Thank you for the opportunity to express my opinion regarding
the anti-trust lawsuit against Microsoft.
I was elected to the Kansas State House in 2000 and my
experiences since that time has taught me that the actions of
government can often have negative effects on the average American.
I think this holds true in the government's case against Microsoft.
There is no doubt that this pursuit of Microsoft has negatively
affected our economic health. At a time when many states are facing
major budget problems, they have also been spending taxpayers''
money to finance this case. In fact, here in Kansas, our budget
problems are so bad that some members of the Legislature are
supporting an increase in taxes. At the same time, our Attorney
General sees fit to continue wasting tax money on this case that the
public clearly wants to see brought to an end.
When we look back at the fall of the technology industry and the
markets overall, we should not be surprised. Our government was
determined to use the courts to break up one of the world's largest
companies. Of course the markets are going to feel the effects of
this. Of course investors are going to wait on the sidelines. Of
course struggling technology companies will declare bankruptcy. And
of course the American worker and consumer will feel the pinch.
The settlement currently under consideration addresses this
matter fully and fairly. It represents a true compromise. Allowing
the proposed settlement to go through is the right thing to do
legally. It is also the right thing to do in order to help
revitalize our economy and restore faith in the capitalist system we
all appreciate.
Thank you.
Rep. Mary Pilcher Cook
MTC-00029630
GENE RASQUEZ
4708 SW TERRACE
AUGUSTA, KS 67010
January 22, 2002
Ms. Renata Hesse
Trial Attorney, Anti-trust Division
U.S. Department of Justice
601 ``D'' Street NW, Suite 1200
Washington, DC 20530
Ms. Hesse:
I always appreciate an opportunity to participate in government
matters that affect me directly as an American citizen and I thank
you for conducting this comment period regarding the Microsoft anti-
trust lawsuit.
I simply wish to voice my full support for the settlement
proposed by the President's team. This settlement provides a genuine
solution to a costly lawsuit--;the merits of which are hotly
debated across the nation. There are so many other more critical
issues facing our government and your court, especially in light of
the September 11 '' attacks, that I cannot see the wisdom in
continuing to pursue one of our best and brightest organizations.
Microsoft's agreement to operate under the stringent restrictions
imposed by the proposed settlement is an indication to me of the
company's good faith and the tech market could certainly use the
boost of confidence this settlement would provide.
I trust that the court will see the benefits of settling this
matter in the manner proposed and move to accept the Bush settlement
agreement.
Sincerely,
Gene Basquez
[[Page 28696]]
MTC-00029631
Rev David J. Goodrich
P.O. Box 1600
Norwich, VT 05055
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
To provide some personal feedback during this 60-day public
comment period, in my opinion it's about time that the government
reached a settlement in its case against Microsoft. I feel the legal
action should never have begun in the first place, and the Justice
Department should stop wasting tax money on this issue.
America was built by people who worked hard to be successful and
make money at their businesses, and the government should not try
and stop them. Microsoft built themselves from the ground up by
making a better product at a fair price, which has left their
competitors desperate enough to push for this legal action. By
agreeing to several terms to encourage a more dynamic marketplace,
Microsoft has surpassed even the government's complaints about their
business practices. With an objective group of experts to monitor
implementation of the plan, there should no longer be a need to
bring this dispute into the legal system.
Our federal and state governments have better things to spend
their money on than pursuing this case any further. Please let
Microsoft get back to developing great products without distraction
and the government to get back to dealing with the real needs of
protecting national security.
Thank you for your support.
Please know that I have been a Microsoft user for about 14 years
and they have provided a very user friendly product at a reasonable
price. Microsoft Word exceeds the competition in quality and price.
Please stop this action which will only hurt the consumer. The cost
of this case far exceeds the cost of many good projects and is only
a punishment for the business community who are the real providers
of jobs in America.
Sincerely,
Rev David J. Goodrich
1-;802-;649-;1866
Fax 1-;802-;649-;5601
MTC-00029632
5945 154th Place
Flushing, NY 11355-;5508
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
As a computer professional in the technical industry that has
been following this Microsoft antitrust case, I think it is grossly
unfair that this case was brought about in the first place.
Microsoft has been great for the economy, the technical sector,
and the NASDAQ. It is coincidental that all of these sectors are way
down now that Microsoft is in the middle of litigation. If we leave
the settlement as it stands and not pursue further litigation, it
would be of great benefit to us in the end.
Microsoft did not get off as easy as its competitor's would have
you think. After intense negotiations and mediation, they agreed to
terms well beyond what is expected in any antitrust case. I
understand that Microsoft agreed to disclose various internal
interfaces in their operating system to competitors. I cannot think
of any other software company that would risk their proprietary
source code bring exposed to the competition for their use.
Apparently, the sacrifice Microsoft is willing to make is not
enough. Everyone (the states and the competition) wants more.
Enough is enough. Microsoft should not be penalized because of
other companies inability to compete on level ground--;Whatever
happened to free enterprise? Litigation is bad for the economy. Let
us go with the settlement and not pursue any further litigation. In
addition, let's focus on rebuilding our economy.
Thank you.
MTC-00029633
1512 N. Elsea Smith Road
Independence, M064056
January 27, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I was pleased to learn that the Justice Department has reached a
proposed settlement agreement in the Microsoft litigation.
You now have the opportunity to clean up the mess created by
your predecessor. Microsoft was the target of this litigation
because of its size and because of its great degree of success. Your
implementation of this settlement will bring an end to the political
witch-hunt.
Microsoft has placed a number of concrete proposals on the table
to resolve the case. They have agreed to changes in almost every
aspect of their business operations, from pricing, to distribution,
to system design. These changes, if implemented, should provide
additional competitive opportunities for Microsoft's competitors and
more choice for computer users.
Please go forward with the settlement and let Microsoft get back
to business.
Sincerely,
Mark Zachgo
MTC-00029634
1512 N. Elsea Smith Road
Independence, MO 64056
January 27, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I was pleased to learn that the Justice Department has reached a
proposed settlement agreement in the Microsoft litigation.
You now have the opportunity to clean up the mess created by
your predecessor. Microsoft was the target of this litigation
because of its size and because of its great degree of success. Your
implementation of this settlement will bring an end to the political
witch-hunt.
Microsoft has placed a number of concrete proposals on the table
to resolve the case. They have agreed to changes in almost every
aspect of their business operations, from pricing, to distribution,
to system design. These changes, if implemented, should provide
additional competitive opportunities for Microsoft's competitors and
more choice for computer users.
Please go forward with the settlement and let Microsoft get back
to business.
Sincerely,
Dawn M. Zachgo
MTC-00029636
Jason t. Rigsbee
9237 Estate Cove Circle
Riverview, Florida 33569-;3102 U.S.A.
Home: (813) 740-;2979 / Mobile: (813) 787-;5961
Facsimile: (630) 214-;4890
E-mail: [email protected]
World-Wide-Web: http:llwww.rigsbee.net
To: U.S. Department of Justice (Antitrust Division)
RE: Microsoft Settlement/Future Litigation
I have no problem [along with the majority of all Americans]
with what Microsoft has done to better the computer technology of
today. Without the innovations and mindset of the president and
founder, William Gates, the many luxuries we all enjoy as one world
would cease. Microsoft is not an evil empire whose goal is to
exploit the people of this country. However, its goal is to enhance
and bring computer technology to a newer level that will better aid
people throughout their daily activities. Microsoft must be allowed
to bring the Internet into its operating system, make set-top boxes
for televisions, or create the most dominant product since Windows;
otherwise you [the government] have taken away one of the priceless
commodities that this great nation was founded upon.
If you are so bent on stopping a company's free will to
innovate, you should turn your eyes on America Online. America
Online (AOL) planned its big takeover of Netscape and its semi-
agreement with Sun Microsystems (by the way...both companies
approached the government to pursue a case against Microsoft) at the
same time as the Microsoft lawsuits. Isn't this a bit odd? If we are
so worried about Microsoft's *LARGE* empire, shouldn't we be
stepping on AOL's toes also? If you haven't been keeping up with
current affairs...AOL has one goal, and that is to be number one and
to destroy Microsoft. There is *NO* monopoly here.
Sun Microsystems, America Online, and Oracle are using you [the
government] to get back at Microsoft. They are using you [the
government] to build their business and in using you hoping to get
one step ahead. If you destroy Microsoft's ability to enhance its
products m any way its competition will see the victory...not the
American people you are trying to protect.
A company [Microsoft] *MUST* be given the right to enhance its
products in any way possible to benefit its customers. The Microsoft
cases have gone on too long. I hope that you will favor the Justice
Department's recommendation for compromise and disallow all current
litigation against Microsoft.
[[Page 28697]]
Sincerely,
Jason L. Rigsbee
Romans 10:13 For whosoever shall call upon the name of the Lord
shall be saved.
MTC-00029637
ALAN & NANCY STRAND
20100 156TH AVE. N.E
WOODINVILLE, WA 98072.
January 24, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
I am writing today to encourage the Department of Justice to
accept the Microsoft antitrust settlement. This issue has been drug
out for over three years now and it is time to put it to rest.
Microsoft needs the chance to move on and put this government over
regulation behind them.
When I buy a Ford it does not come with Chew parts. Chew pans do
not fit in Fords and nobody has a problem with that. Now Microsoft
creates a product and is being sued because everyone else's products
do not work perfectly with their products. Microsoft has agreed to
provide their competitors with part of the Windows base code, in
order for their competitors to create products that are more
compatible with Microsoft's. This has never been done m any other
industry and I do not see why it is being demanded from Microsoft.
Microsoft has been harassed for too long. Demands have been made
and agreed to that have never been made on any other company. Now it
is time to allow Microsoft to move forward. The only way to move
forward is to put this issue in the past. Please accept the
Microsoft antitrust settlement.
Sincerely,
Alan Strand
MTC-00029638
James Wilkins
1901 Windsor Place
Findlay, OH 45840
January 16, 2002
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft,
After three long years, the antitrust case against Microsoft has
been settled. I applaud this decision. 1 believe the initial lawsuit
was wrong. It was, in my opinion, very counter-productive for the
economy. Microsoft is one of the engines of our economy; the
economic downturn we have experienced can be traced directly to the
antitrust case against Microsoft.
But it is time to go forward. Microsoft has agreed to a great
number of demands from the Department of Justice; e.g. agreeing to a
technical committee to monitor future actions; agreeing to design
future versions of Windows with the ability to promote non-Microsoft
software; agreeing not to retaliate against computer makers who send
software that competes with Windows operating system. Microsoft is
apparently trying to settle the case and get back to business. I
agree with this. I urge you to give your support to the agreement
between Microsoft and the Department of Justice.
Sincerely,
James Wilkins
MTC-00029639
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania A?? NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
The Department of Justice and Microsoft have ?? three-year-??, I
want to ?? my support to ?? measure and ask that you do so also This
has become more of a personal battle between Microsoft and its
rivals such as ?? Microsystems, and AOL. It should be noted that ??
stock has gone down, while Microsoft's sto??k, despite all the legal
problems, has stinted to rise, again. I believe Microsoft was one of
the ?? of the ?? the technological world to be embraced by
all--;providing lens of thousands of high??. It is on ?? part of
?? nature that there are those who do not like the fact that some
people are more successful than they, and they try to bring such
individuals down.
But ?? has now been ??, and we should let it stand. Mi?? many
changes in their operations. Microsoft has agreed to help companies
?? greater degree of reliability with regard to their networking
software; M?? agreed to allow computer makers to ship non-Microsoft
product to customers; Microsoft has agreed to design future versions
of Windows with a device to make it easier to promote non-Microsoft
software. Microsoft has even agreed to a technical committee to
monitor future settlement adherence. This is more than fair and
reasonable. I urge you to give your support to this agreement and
allow us to get back to business and Bill G?? to his creativity.
Sincerely,
Paul?? Dreger
MTC-00029640
Donald Delahaut
260 Fernledge Drive
New Kensington, PA 15068-;4614
January 27, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
I am writing today to encourage the Department of Justice to
accept the Microsoft antitrust settlement. As a member of the
technology industry, I want to see Microsoft and the industry to
move on. The suit has dragged on for over three years and has caused
great damage to the entire industry.
Some say that Microsoft is being treated leniently. In fact is
quite tough. Microsoft has agreed to document and disclose, for use
by its competitors, various interfaces that are internal to Windows'
operating system products. Microsoft is virtually handing over their
company secrets to their competitors. That is no getting off easy.
In order to move forward Microsoft is giving in to a lot. The
terms, of the settlement are fair and they should be accepted.
MTC-00029641
Louis Theriault
643 Yorkshire Drive
Oviedo, FL 32765-;8159
January 26, 2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Take a moment to reflect on what the breakup of ATT did to the
phone industry. It created very poor phone service and drastically
reduced innovation. If ATT were still together people would be
looking and talking to each other over the connection instead of
only talking to each other.
This hindered innovation is a direct result of the breakup of
ATT because it caused them to divert their attention from long
overdue innovation.
The same is true in Microsoft's case. Though I am glad that
there has been no decision to break up Microsoft, the mere thought
that this was considered is appalling. The way I see it, if I ran a
company that was unable to keep up with my competition then the
fault is mine and not my stronger competitor. I should therefore
seek to strengthen my stance in the industry rather than seek
corporate welfare from the government. Indeed, seeking the
government's help to break up a company for your advantage only is a
pitiful thing and I think the government should put a stop to it
immediately!
Look at all that Microsoft has conceded in this case. They have
agreed to grant competitors greater access to Windows by creating
new versions. In addition, they have agreed to give computer makers
more flexibility to reconfigure Windows for interoperability with
non-Microsoft software. In light of all the varied factors of this
case and Microsoft's spirit of cooperation, please put an end to
litigation in the interest of fairness.
Sincerely,
Louis Theriault
MTC-00029642
James Hahn
440 E 57th Street
New York, NY 10022
January 27, 2002
Attorney General John Ashcroft
US Department of Justice,
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft:
Last November, Microsoft and the Department of Justice reached a
settlement in the antitrust case. The settlement is currently being
reviewed, and soon the courts will have to decide whether or not the
settlement is acceptable. Microsoft competitors are touting the
agreement as lenient towards Microsoft and harmful to the consumer.
They would like nothing better than to see the settlement overturned
and litigation against Microsoft continued. I disagree. Continued
litigation, not settlement, would do the most damage to the
consumer, and the settlement is anything but lenient.
The settlement allows Microsoft to remain intact, but prohibits
Microsoft from engaging in behaviors that would prevent other
computer makers from having a fair chance to compete. For example,
the settlement
[[Page 28698]]
requires that Microsoft disclose source code from the Windows
operating system to its competitors for their use either in working
independently or with Microsoft Microsoft will also furnish third
parties acting within the limits of the settlement with a license to
applicable intellectual property rights to prevent infringement. I
do not think that Microsoft has been treated too mil?? in this case;
in fact, in the interest of wrapping up the se??, Microsoft has
agreed to a number of terms that extend to aspects of Microsoft not
found to be in violation of ?? laws.
The time has come for a decision to be made, whether or not it
is in the best interests of the public to allow a ridiculous amount
of time and money to be wasted in laughably ?? litigation, or if the
technology industry should be permitted to return to normal and the
economy to recover. I would like to see the consumer benefit from a
return to nor?? in the economy and the computer industry, and I urge
you ?? support the settlement. Enough is enough??
Sincerely,
James Hahn
MTC-00029643
January 17, 2002
Attorney General John Ashcroft
U.S. Justice Department
950 Pennsylvania Avenue, NW
Washington, DC 20530-;0001
Dear Mr. Ashcroft.
At long last, this debacle of an antitrust trial between the
government and Microsoft has sputtered to a settlement. While the
settlement is weighed slightly against Microsoft, it at least has
the advantage of ending the litigation.
This entire lawsuit was, I believe, grounded in much
misinformation and misunderstanding. A company's
``dominance'' in any particular market does not
necessarily mean that it has achieved that status through anything
other than legal--;albeit aggressive--;means. I believe this
to have always been true of Microsoft. Microsoft never manipulated
the marketplace to force anyone to purchase its system. Rather, its
pricing policies, its integration, and its reliability attracted
most people to its product. This is enviable, not despicable.
When our government engages in a mission to ``level the
playing field'' for all, there is the natural side effect of
having to ``dumb down'' those that have been successful,
and force them to either step aside, or give away their hard-earned
successes to those less fortunate souls who are not as creative or
as industrious. This attitude is reflected in the settlement.
Microsoft is being forced to give up some of its source code to
others in order to satisfy the government need to level the IT
playing field.
While it is useless to object, I find that the settlement at
least has the advantage of ending the contentious nature of the
trial. For this reason alone, I find myself supporting it.
Sincerely,
Charles Aunger
Chief Technology Officer
PO BOX 470671,
CELEBRATION, FLORIDA, 34747-;0671
www.vhinternet.com.
TEL: 407 709 6559 FAX: 407 650 2703
MTC-00029644
Lesa Stafford
3395 80th Road
Thayer, KS 66776
Renata Hesse
U.S. Department of Justice
601 ``D'' Street NVV Suite 1200
Washington, DC 20530
Dear Ms. Hesse:
I am glad to have this opportunity to express my opinion
regarding the Microsoft antitrust case.
I was relieved to learn that the Bush Administration had
proposed a settlement that could soon end this costly endeavor. As a
taxpaying citizen, I nave been concerned for quite some time over
the high cost of continuing to pursue this case in court, From all I
have read and experienced as a consumer in the marketplace, I am
convinced that Microsoft has created no monopoly--;especially
since computer products continue to become more affordable and not
more expensive
I firmly believe that the funds being spent to litigate this
matter in court are desperately needed in other areas such as
education and law enforcement, Therefore I urge the court to accept
the proposed Microsoft settlement and free up tax dollars for
matters that are truly critical to all our futures.
Sincerely.
Lesa Stafford
January 25,2002
Attorney General John Ashcroft
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The settlement reached in the Microsoft anti-trust dispute is
essential to the continued success of America's technology industry
in the world market. Our IT industry has floundered for the past
three years since the inauguration of this anti-trust suit against
Microsoft three years ago. This settlement is fair and is a prime
opportunity to put this litigation behind us.
Under the terms of the agreement, Microsoft has agreed to design
all future versions of Windows to be more compatible with the
products of its competitors. Microsoft has also agreed not to
retaliate against any competitor who produces products that compete
with its own. And, finally Microsoft has promised to report to a
three person technical committee that will monitor Microsoft's
compliance to these terms. I believe that this settlement is
reasonable for the simple reason that it will allow Microsoft to get
back to business without being pirated and split apart.
Thank you for you help in this issue and for allowing me to
express my opinion. Free enterprise is a precious commodity in this
nation and it must be protected.
Sincerely,
James Lay
3400 W Bristol Road
Flint, MI 48507
Made Up To a Quality ... Not Down To a Price !
MTC-00029646
January 23, 2002
Renata Hesse
Trial Attorney
Antitrust Division Department of Justice
601 D Street NW. Suite 1200
Washington, DC 20530
Dear Ms. Hesse,
As an employee for a large midwestern hospital. I see first hand
the benefits of technology everyday. Whether it is computerized
laser surgical tools or sophisticated medical record software
packages, my employer relics everyday on constant innovation within
the technology field to better serve our patients and community.
The pervasive nature of technology continues to astound me...it
seems as if virtually every thing we encounter has some kind of
microchip inside. Is it any wonder then, that one of the largest
computer companies in the world being involved in a major lawsuit
would have an extraordinary impact on virtually every segment of our
economy?
As I understand it, there is a settlement before you that could
bring closure to this matter very quickly. While I agree it is
vitally important to protect consumers, it is also important to do
what is prudent to protect our economy and to continue technological
innovation. research and investment.
The settlement before you addresses the concerns of the original
complaint. All interested parties have approved it. Please give the
settlement your final approval and help get the economy moving
again.
Sincerely;
Terri Hasselman
Director of Major Gifts
Mercy Foundation
1111 6th Avenue
Des Moines.
MTC-00029647
Alba English
14113 Grant St
Overland Park, KS 66221
January 19. 2002
Ms. Renara B. Hensse
Antitrust Division
U.S. Department of Justice
601 D Street NW, Suite 1200
Washington, DC 20530-;0001
Dear Ms. Hesse,
It was music to my ears to learn that there can be a settlement
soon in the antitrust case against Microsoft Corporation?
I am confident that this settlement will have a positive impact
on the ailing U.S. economy. Many of the investments citizens like my
self have are directly related to the high-tech market place.
With less government intrusion into private business and mote
good old-fashioned competition in the marketplace, we can look
forward to new growth in the U.S. economy. Enough taxpayer dollars
have already been spent attempting to fix a problem that never
existed.
I appreciate your consideration of my view as you deliberate. It
is important for you to support this settlement.
Sincerely,
Alba English