united states court of appeals for oralargument on november 4, 2003 in the united states court of...
TRANSCRIPT
SCHEDULED FOR ORAL ARGUMENT ON NOVEMBER 4, 2003
IN THE
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-5030
UNITED STATES OF AMERICA,Plaintiff-Appellee,
—v.—
MICROSOFT CORPORATION,Defendant-Appellee,
—v.—
COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION andSOFTWARE & INFORMATION INDUSTRY ASSOCIATION,
Putative Intervenors-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEE MICROSOFT CORPORATION
JOHN L. WARDENRICHARD J. UROWSKYSTEVEN L. HOLLEYMICHAEL LACOVARARICHARD C. PEPPERMAN, IIBRADLEY P. SMITHSULLIVAN & CROMWELL LLP125 Broad StreetNew York, New York 10004(212) 558-4000
Counsel for Defendant-AppelleeMicrosoft Corporation
BRADFORD L. SMITHTHOMAS W. BURTDAVID A. HEINER, JR.MICROSOFT CORPORATIONOne Microsoft WayRedmond, Washington 98052(425) 706-8080
Original Version: June 18, 2003Final Version: August 6, 2003
(Additional Counsel Listed on Inside of Cover)
FINAL VERSION
SCHEDULED FOR ORAL ARGUMENT ON NOVEMBER 4, 2003
IN THE
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-5030
UNITED STATES OF AMERICA,Plaintiff-Appellee,
—v.—
MICROSOFT CORPORATION,Defendant-Appellee,
—v.—
COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION andSOFTWARE & INFORMATION INDUSTRY ASSOCIATION,
Putative Intervenors-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEE MICROSOFT CORPORATION
JOHN L. WARDENRICHARD J. UROWSKYSTEVEN L. HOLLEYMICHAEL LACOVARARICHARD C. PEPPERMAN, IIBRADLEY P. SMITHSULLIVAN & CROMWELL LLP125 Broad StreetNew York, New York 10004(212) 558-4000
Counsel for Defendant-AppelleeMicrosoft Corporation
BRADFORD L. SMITHTHOMAS W. BURTDAVID A. HEINER, JR.MICROSOFT CORPORATIONOne Microsoft WayRedmond, Washington 98052(425) 706-8080
Original Version: June 18, 2003Final Version: August 6, 2003
(Additional Counsel Listed on Inside of Cover)
FINAL VERSION
DAN K. WEBBWINSTON & STRAWN LLP35 West Wacker DriveChicago, Illinois 60601(312) 558-5600
CHARLES F. RULEFRIED, FRANK, HARRIS, SHRIVER
& JACOBSON1001 Pennsylvania Avenue, N.W.Washington, D.C. 20004(202) 639-7300
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties, Intervenors and Amici Curiae
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and D.C. Circuit Rule
26.1, appellee Microsoft Corporation (“Microsoft”) certifies that it has no corporate parents and
that no publicly-held company owns 10% or more of Microsoft’s stock.
Except for the following, all parties, intervenors and amici appearing before the District
Court and this Court are listed in the Brief for Appellants.
1. Intervenors
In 1998, the following media organizations were permitted to intervene in the District
Court for the limited purpose of enforcing 15 U.S.C. § 30: Bloomberg News; The New York
Times Co.; Reuters America, Inc.; San Jose Mercury News, Inc.; The Seattle Times; ZDNET;
and ZDTV, L.L.C. In 1999, Bristol Technology, Inc. was permitted to intervene in the District
Court for the limited purpose of requesting access to documents produced in discovery.
2. Amici Curiae
The following persons were permitted to participate as amici curiae in the District Court
in 1999 and 2000: Association for Competitive Technology, Robert H. Bork, the Computer &
Communications Industry Association, Lawrence Lessig, Robert E. Litan and the Software and
Information Industry Association.
B. Rulings under Review
References to the rulings at issue appear in the Brief for Appellants.
C. Related Cases
A related case is currently before this Court in Nos. 02-7155 and 02-7156, which are
consolidated on appeal. On November 1, 2002, the District Court entered a Final Judgment in
New York v. Microsoft Corp. 224 F. Supp. 2d 76 (D.D.C. 2002). The Commonwealth of
- ii -
Massachusetts and the State of West Virginia appealed the Final Judgment by filing Notices of
Appeal on November 29 and December 2, 2002, respectively.
This case and a related case were previously before this Court in Nos. 00-5212 and
00-5213, which were consolidated on appeal. On June 7, 2000, the District Court entered a Final
Judgment in United States v. Microsoft Corp. 97 F. Supp. 2d 59 (D.D.C. 2000). On June 28,
2001, this Court affirmed in part, reversed in part and remanded in part. This Court’s decision is
reported as United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir.) (en banc), cert. denied, 534
U.S. 952 (2001).
This case and a related case were also previously before this Court in Nos. 98-5399 and
98-5400, which were consolidated on appeal. On August 10, 1998, various media organizations
sought permission to attend pre-trial depositions pursuant to the Publicity in Taking Evidence
Act of 1913, 15 U.S.C. § 30. The District Court granted their motion. On January 29, 1999, this
Court affirmed. This Court’s decision is reported as United States v. Microsoft Corp., 165 F.3d
952 (D.C. Cir. 1999).
No other related cases are pending in this Court or any other court.
- iii -
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES.................................. i
TABLE OF AUTHORITIES ........................................................................................................v
GLOSSARY .............................................................................................................................. vii
STATEMENT OF THE ISSUES..................................................................................................1
STATEMENT OF THE CASE.....................................................................................................1
STANDARD OF REVIEW ..........................................................................................................2
SUMMARY OF ARGUMENT ....................................................................................................2
ARGUMENT................................................................................................................................4
I. This Appeal Should Be Dismissed Because CCIA and SIIA Are Not Proper Intervenors...........................................................................4
A. CCIA and SIIA Are Not Entitled to Permissive Intervention...........................................5
B. CCIA and SIIA Are Not Entitled To Intervene as of Right To Enforce the Tunney Act’s Procedural Requirements ..................................................6
II. The Consent Decree Is in the Public Interest..........................................................................7
A. The Consent Decree Properly Addresses This Court’s Liability Determinations ..............................................................................7
1. Commingling ..............................................................................................................8
2. Add/Remove Programs Utility ...................................................................................9
3. Java .............................................................................................................................9
4. OEM Flexibility ........................................................................................................10
B. The District Court Properly Rejected Additional Remedies...........................................10
1. Remedies Proposed by the Litigating States in New York v. Microsoft................................................................................11
2. API and Communications Protocol Disclosures.......................................................12
a. No Ambiguities...................................................................................................12
b. Adequate Disclosures..........................................................................................14
- iv -
C. The Consent Decree Includes Appropriate Enforcement Provisions .............................15
III. Microsoft Complied with the Tunney Act’s Disclosure Requirements ...............................................................................15
CONCLUSION...........................................................................................................................17
- v -
TABLE OF AUTHORITIES
(Authorities on which Microsoft chiefly relies are marked with asterisks.)
CASES
* Alternative Research & Dev. Found. v. Veneman, 262 F.3d 406 (D.C. Cir. 2001) ................................................................................................4
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)....................................................6
Dillard v. City of Foley, 166 F.R.D. 503 (M.D. Ala. 1996) .........................................................5
EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042 (D.C. Cir. 1998) ..............................................................................................2
* Mass. Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776 (D.C. Cir. 1997) ....................................................................................2, 4, 5, 7
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998) ................................................6
New York v. Microsoft Corp. 224 F. Supp. 2d 76 (D.D.C. 2002)..................................................i
S. Christian Leadership Conference v. Kelley, 747 F.2d 777 (D.C. Cir. 1984) ................................................................................................6
Tripp v. Executive Office of the President, 194 F.R.D. 344 (D.D.C. 2000)................................................................................................5
United States v. G. Heileman Brewing Co., 563 F. Supp. 642 (D. Del. 1983)......................................................................................... 6-7
United States v. LTV Corp., 746 F.2d 51 (D.C. Cir. 1984) ......................................................2, 4
* United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir.), cert. denied, 534 U.S. 952 (2001)........................................................................................................... ii, 7
United States v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999)............................................... ii
* United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) ..........................................................................2, 4, 6, 7, 9, 13
United States v. Microsoft Corp., No. 98-1232, 2003 WL 262324 (D.D.C. Jan. 11, 2003)................................................. 2, 5-6
United States v. Microsoft Corp., No. 98-1232, 2002 WL 31654530 (D.D.C. Nov. 12, 2002) ................................. 9-10, 12, 13
- vi -
* United States v. Microsoft Corp., 231 F. Supp. 2d 144 (D.D.C. 2002) .............................................1-2, 8, 10, 11, 12-13, 14, 15
United States v. Microsoft Corp., 215 F. Supp. 2d 1, 19 (D.D.C. 2002) ....................................................................................16
United States v. Microsoft Corp. 97 F. Supp. 2d 59 (D.D.C. 2000)............................................ ii
United States v. Microsoft Corp., 84 F. Supp. 2d 9 (D.D.C. 1999)..............................................9
STATUTES & RULES
15 U.S.C. § 16................................................................................................................... 1, 15-16
FED. R. CIV. P. 24..................................................................................................................2, 5, 6
- vii -
GLOSSARY
“APIs” Application Programming Interfaces.
“CCIA” The Computer & Communications Industry Association.
“CCIA/SIIA Br.” Brief for Appellants.
“Consent Decree” Final judgment entered in this action on November 12, 2002 and reported at 2002 WL 31654530 (D.D.C. Nov. 12, 2002).
“IAPs” Internet Access Providers. IAPs provide consumers with a connection to the Internet, with or without their own proprietary content.
“ICPs” Internet Content Providers. ICPs provide content to users of the Internet by maintaining Web sites.
“IE” Internet Explorer.
“IHVs” Independent Hardware Vendors. IHVs are entities that develop hardware to be included in or used with a personal computer running Windows.
“ISVs” Independent Software Vendors. ISVs are entities other than Microsoft that are engaged in the development or marketing of software products.
“Litigating States” The District of Columbia and nine other States (California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah and West Virginia) that declined to join the November 2001 settlement between Microsoft and the United States and the other plaintiff States in New York v. Microsoft Corp., No. 98-1233 (D.D.C.).
“Microsoft” Microsoft Corporation.
“OEMs” Original Equipment Manufacturers. OEMs are manufac-turers of personal computers.
“SIIA” The Software & Information Industry Association.
“USRPC” U.S. Response to Public Comments.
STATEMENT OF THE ISSUES
1. Whether the District Court properly denied the motion to intervene filed by the
Computer & Communications Industry Association (“CCIA”) and the Software & Information
Industry Association (“SIIA”)—two trade associations consisting largely of Microsoft
competitors.
2. Whether the Consent Decree negotiated by the U.S. Department of Justice and
entered by the District Court is in the “public interest” within the meaning of the Antitrust
Procedures and Penalties Act (“Tunney Act”), 15 U.S.C. § 16(b)-(h).
3. Whether Microsoft and the United States complied with the procedural
requirements of the Tunney Act.
STATEMENT OF THE CASE
After this Court vacated the prior judgment and remanded this case for further
proceedings, the District Court ordered the parties into intensive settlement negotiations. The
parties “conducted strenuous good-faith negotiations day and night,” which culminated in a full
settlement of this action. J.A. 94 (statement of mediator). The District Court reviewed the
settlement in accordance with the Tunney Act, receiving the full text of the 32,392 public
comments submitted on the proposed Consent Decree—including lengthy comments submitted
by CCIA and SIIA.
On November 1, 2002, the District Court concluded that the Consent Decree was in the
“public interest,” praising it “for the clear, consistent, and coherent manner in which it
accomplishes its task.” 231 F. Supp. 2d 144, 202 (D.D.C. 2002). The District Court explained:
[T]he proposed final judgment adopts a clear and consistent philosophy such that the provisions form a tightly woven fabric. The proposed final judgment takes account of the theory of liability advanced by Plaintiffs, the actual liability
- 2 -
imposed by the appellate court, the concerns of the Plaintiffs with regard to future technologies, and the relevant policy considerations.
Id.
The District Court entered the Consent Decree on November 12, 2002. CCIA and SIIA
subsequently moved to intervene for purposes of appealing entry of the Consent Decree. The
District Court denied their motion, 2003 WL 262324 (D.D.C. Jan. 11, 2003), and this appeal
followed. Microsoft filed a motion for summary affirmance of the District Court’s intervention
decision on February 24, 2003.
STANDARD OF REVIEW
CCIA and SIIA contend that the District Court erred in denying their request for
permissive intervention to appeal the determination that the Consent Decree is in the “public
interest.” CCIA/SIIA Br. at 19-20. Recognizing the “wide latitude” afforded by Federal Rule of
Civil Procedure 24(b), this Court “review[s] the denial of a motion for permissive intervention
under the abuse of discretion standard.” EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042,
1046 (D.C. Cir. 1998); accord United States v. LTV Corp., 746 F.2d 51, 54 (D.C. Cir. 1984).
Even if the Court concludes that CCIA and SIIA are proper intervenors, the Consent
Decree should not be overturned unless it makes a “‘mockery of judicial power’” or results from
a “sell-out by the Department [of Justice].” Mass. Sch. of Law at Andover, Inc. v. United States,
118 F.3d 776, 783-84 (D.C. Cir. 1997) (“MSL”) (quoting United States v. Microsoft Corp., 56
F.3d 1448, 1462 (D.C. Cir. 1995)).
SUMMARY OF ARGUMENT
The District Court did not abuse its discretion in denying the request for permissive
intervention. CCIA and SIIA failed to establish the requisite commonality between any issues
that remain in this litigation and any antitrust claims their members may have against Microsoft.
- 3 -
They also failed to comply with Rule 24(c)’s requirement that they file a pleading setting forth
the claim or defense for which they sought intervention. With regard to intervention as of right—
which they pursue on appeal only in a footnote in connection with their challenge to the parties’
compliance with the Tunney Act’s procedural requirements—CCIA and SIIA did not identify a
legally protectable interest sufficient to give them standing to intervene. This Court thus should
affirm the District Court’s denial of intervention and dismiss the remainder of this appeal.
CCIA and SIIA argue that the Consent Decree does not address this Court’s liability
determinations regarding commingling and Java. The District Court ruled, however, that the
Consent Decree provides effective relief for these liability determinations and that the severe
measures advocated by CCIA and SIIA would harm consumers and the PC industry. There is no
basis for overturning those rulings. CCIA and SIIA also complain that the Consent Decree does
not “terminate” Microsoft’s monopoly or deprive Microsoft of the “fruits” of its statutory
violations. Yet Microsoft acquired its monopoly lawfully, and there is no finding that Microsoft
would have lost its monopoly but for the conduct held to be anticompetitive in this case. Nor is
there a basis to conclude that the additional remedies proposed by CCIA and SIIA are necessary
to deny Microsoft the “fruits” of its anticompetitive conduct.
CCIA and SIIA also assert that Section 16(g) of the Tunney Act required Microsoft to
disclose communications with the United States concerning the Consent Decree going back to
1998, when the case was filed. The United States and Microsoft did not begin negotiating the
Consent Decree until September 2001. Microsoft’s disclosures thus properly covered the period
commencing with the issuance of this Court’s mandate on August 24, 2001.
- 4 -
ARGUMENT
The Consent Decree is “a negotiated settlement” that does not implicate the interests of
CCIA and SIIA to a degree that permits them to intervene in this action. Microsoft, 56 F.3d
at 1456. Nor do their substantive complaints about the decree give the Court “reason to infer a
sell-out” by the United States. MSL, 118 F.3d at 784.
I.
This Appeal Should Be Dismissed Because CCIA and SIIA Are Not Proper Intervenors.
Notwithstanding their claimed entitlement to “rigorous appellate review,” CCIA/SIIA Br.
at 18, CCIA and SIIA are not “automatically entitled to an appeal on the merits,” MSL, 118 F.3d
at 779 n.1. They instead must satisfy the requirements for intervention “as a condition of taking
an appeal.” LTV, 746 F.2d at 54. Rule 24 governs both intervention in the district court and
“intervention[] solely for purposes of appeal.” MSL, 118 F.3d at 779. “Because the district court
correctly denied intervention,” CCIA and SIIA do “not have standing to appeal from” the
Consent Decree. Alternative Research & Dev. Found. v. Veneman, 262 F.3d 406, 411 (D.C. Cir.
2001).
In the District Court, CCIA and SIIA sought to intervene as of right pursuant to
Rule 24(a) or, alternatively, by permission pursuant to Rule 24(b). In challenging on appeal the
District Court’s determination that the Consent Decree is in the public interest, however, CCIA
and SIIA argue solely that they are entitled to permissive intervention. CCIA/SIIA Br. at 18-20.
Only in a footnote do they assert that they are entitled to intervene as of right to enforce the
Tunney Act’s procedural requirements. Id. at 52 & n.16. Neither argument has merit.
- 5 -
A. CCIA and SIIA Are Not Entitled to Permissive Intervention.
To intervene by permission, CCIA and SIIA must demonstrate that (i) their “claim or
defense and the main action have a question of law or fact in common” and (ii) intervention will
not “unduly delay or prejudice the adjudication of the rights of the original parties.” FED. R. CIV.
P. 24(b).
As to the first requirement, CCIA and SIIA do not identify what claims their members
purportedly have against Microsoft. They simply assert that there are such claims and that they
“parallel” claims in this action. CCIA/SIIA Br. at 20. That assertion is inadequate on its face.
Moreover, even if the Court were to reject the Consent Decree, that decision would not lead to
another trial on the merits that might provide support for private antitrust claims. That fact
distinguishes this case from MSL, where “at least some prospect of [a] trial on the merits”
remained. 118 F.3d at 782. Here, no conceivable overlap exists between (i) the remedy-specific
issues CCIA and SIIA seek to present on appeal and (ii) the substantive antitrust claims CCIA
and SIIA contend their members may have against Microsoft. Finally, CCIA and SIIA failed to
comply with Rule 24(c)’s requirement that their motion to intervene “be accompanied by a
pleading setting forth the claim or defense for which intervention is sought,” which by itself
provided ample ground for the District Court to deny their motion. See Tripp v. Executive Office
of the President, 194 F.R.D. 344, 347 n.1 (D.D.C. 2000); Dillard v. City of Foley, 166 F.R.D.
503, 506 (M.D. Ala. 1996).
As to the second requirement, this Court can “take a peek at the merits” to determine
whether permitting CCIA and SIIA to intervene would result in undue delay. MSL, 118 F.3d at
782-83 (internal quotation omitted). The issues they seek to raise fall well short of demonstrating
that the Consent Decree makes a “mockery of judicial power.” Id. at 783-84. As the District
Court correctly concluded, none of the objections raised by CCIA and SIIA establishes “that the
- 6 -
Government failed to vigorously and faithfully represent[] the public interest.” 2003 WL 262324,
at *4 (internal quotation omitted).
B. CCIA and SIIA Are Not Entitled To Intervene as of Right To Enforce the Tunney Act’s Procedural Requirements.
CCIA and SIIA assert in a footnote that they may intervene as of right to challenge the
parties’ disclosures under the Tunney Act. CCIA/SIIA Br. at 52 n.16. To do so, CCIA and SIIA
must demonstrate that they possess “an interest relating to the property or transaction which is
the subject of the action.” FED. R. CIV. P. 24(a)(2). The District Court ruled that CCIA and SIIA
provided “little information” demonstrating that they had a cognizable interest in this case. 2003
WL 262324, at *3. That decision was not an abuse of discretion. See Mova Pharm. Corp. v.
Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998).
Unlike the intervenor in MSL, CCIA and SIIA have not even attempted to identify a
particularized need for any additional disclosures, nor do they differentiate their supposed
interest in the parties’ Tunney Act disclosures from that “shared generally with the public at
large.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). They thus have not
identified “a legally protected interest” of their own that could support intervention as of right.
Id.; accord S. Christian Leadership Conference v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984)
(Rule 24(a)(2) “impliedly refers not to any interest the applicant can put forward, but only to a
legally protectable one.”) (emphasis in original).
More fundamentally, allowing CCIA and SIIA to intervene would encourage
disappointed bystanders in future antitrust enforcement actions to drag the parties through an
unnecessary appeal by alleging non-compliance with the Tunney Act—a result that would
frustrate the ability of the United States to exercise “prosecutorial discretion” in reaching
“negotiated settlement[s]” of complex antitrust cases. Microsoft, 56 F.3d at 1456, 1460. The
- 7 -
legislative history of the Tunney Act “reveals that the main purpose of the bill was ‘to encourage
additional comments and response by more adequate notice to the public,’ and not to invite
intervention with all of the attendant problems, complexities and delays that such participation
would inevitably involve.” United States v. G. Heileman Brewing Co., 563 F. Supp. 642, 652-53
(D. Del. 1983) (quoting S. REP. NO. 298, at 5 (1973)). CCIA and SIIA received notice of the
Consent Decree and commented on it extensively, thereby participating in the Tunney Act
review process in the manner Congress intended.
II.
The Consent Decree Is in the Public Interest.
“The Tunney Act was not intended to create a disincentive to the use of the consent
decree.” Microsoft, 56 F.3d at 1456. Accordingly, although a proposed consent decree must
comport with the public interest, this Court “construe[s] the public interest inquiry narrowly.”
MSL, 118 F.3d at 783.
CCIA and SIIA argue that the Consent Decree (i) does not adequately address all of this
Court’s liability determinations, (ii) does not terminate Microsoft’s monopoly or deny Microsoft
the “fruits” of its violations, and (iii) contains ineffective compliance provisions. These
criticisms are unfounded.
A. The Consent Decree Properly Addresses This Court’s Liability Determinations.
CCIA and SIIA argue that the Consent Decree should be overturned because it does not
require the removal of software code from Windows as a remedy for this Court’s ruling that
Microsoft violated the Sherman Act by “commingling code related to browsing and other code in
the same files” and by “excluding IE from the ‘Add/Remove Programs’ utility.” CCIA/SIIA Br.
at 25 (quoting United States v. Microsoft Corp., 253 F.3d 34, 64-65 (D.C. Cir.), cert. denied, 534
U.S. 952 (2001)). They also assert that the Consent Decree does not (i) “provide any remedy for
- 8 -
Microsoft’s illegal conduct against Java” or (ii) adequately protect the ability of OEMs to make
modifications to Windows. CCIA/SIIA Br. at 29-34, 40-41. The United States and the District
Court considered all of these arguments, and properly rejected them.
1. Commingling
“The United States has, throughout the remedy phases of this case (including before the
District Court in June 2000), stated consistently that it did not seek to require Microsoft to
remove commingled code from Windows.” J.A. 1250. Consistent with that position, the Consent
Decree does not require removal of software code from Windows, but rather requires Microsoft
to allow OEMs and end users “‘to remove access’” to certain features of Windows defined as
“Microsoft Middleware Products.” 231 F. Supp. 2d at 179 (quoting J.A. 1248).
The District Court concluded that this remedy for “commingling” serves the public
interest for two principal reasons. First, the Consent Decree’s “focus on end-user access, rather
than [on] code removal or redesign,” addresses the anticompetitive effect of commingling by
removing the “disincentive to OEMs to install non-Microsoft middleware products.” Id. at 180,
181. In this regard, the District Court credited the prediction of the United States that the Consent
Decree “will enhance competition between Microsoft middleware and non-Microsoft
middleware.” Id. at 181. Second, the District Court concurred with the United States that
requiring Microsoft to remove software code from Windows would affirmatively injure both
consumers and third-party software developers. Id. at 181. The United States explained:
[A] ban on commingling without regard to its competitive significance . . . would impose a wholly unnecessary and artificial constraint on software design that could have adverse implications for consumers. Moreover, changes to the operating system that would be required to implement such a blanket prohibition likely would have adverse effects not only upon Microsoft and its customers but also upon third parties that already have designed software to rely on the present operating system code.
- 9 -
J.A. 1253-54. CCIA and SIIA do not accuse the United States of acting in bad faith in
negotiating this aspect of the Consent Decree, and thus they provide no basis to question the
District Court’s deference to the United States’ “‘predictive judgment[]’” concerning the
appropriate remedy for commingling. Microsoft, 56 F.3d at 1460 (quoting United States v. W.
Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993)).
2. Add/Remove Programs Utility
CCIA and SIIA assert that the Consent Decree does not address this Court’s
determination that Microsoft unlawfully excluded IE from the Add/Remove Programs utility in
Windows 98. CCIA/SIIA Br. at 25, 28-29. They are wrong. Section III.H.1 of the decree
explicitly requires that Microsoft provide a “mechanism . . . such as an Add/Remove icon” that
end users can invoke “to enable or remove access” to IE and other features of Windows defined
as “Microsoft Middleware Products.” 2002 WL 31654530, at *4 (D.D.C. Nov. 12, 2002). CCIA
and SIIA are also wrong in suggesting that the Add/Remove Programs utility at one time allowed
users to remove the software code that comprises IE. CCIA/SIIA Br. at 29. The Add/Remove
Programs utility removed only the software code that provided access to Web browsing
functionality—it did not remove IE itself. See United States v. Microsoft Corp., 84 F. Supp. 2d 9,
50-51 (D.D.C. 1999) (FF 165).
3. Java
CCIA and SIIA assert that the Consent Decree fails “to provide any remedy for
Microsoft’s illegal conduct against Java.” CCIA/SIIA Br. at 29. This is wrong as well. Under
Section VI.K of the decree, “Microsoft’s Java Virtual Machine” is a “Microsoft Middleware
Product.” 2002 WL 31654530, at *14. As a result, Sections III.F and III.G of the decree prohibit
Microsoft from (i) retaliating against ISVs or IHVs for developing, using, distributing,
promoting or supporting competing Java virtual machines and (ii) entering into agreements with
- 10 -
any IAP, ICP, ISV, IHV or OEM that require them to distribute, promote, use or support
Microsoft’s Java virtual machine exclusively or in a fixed percentage. See id. at *3-4. The
District Court found that these provisions “prohibit the anticompetitive conduct identified by”
this Court, 231 F. Supp. 2d at 186, and the United States expressly considered and rejected the
alternative remedy proposed by CCIA and SIIA, J.A. 1348-49.
4. OEM Flexibility
CCIA and SIIA criticize Sections III.C.3 and III.C.5 of the Consent Decree on the ground
that these provisions—which require that Microsoft allow OEMs to launch automatically “Non-
Microsoft Middleware” and present their own IAP offers during the initial Windows boot
sequence—contain unreasonable technical limitations. CCIA/SIIA Br. at 40-41.
The United States expressly considered and rejected these criticisms, noting that (i) the
limitations in Sections III.C.3 are designed to enable the computer to “boot up quickly the first
time it is turned on, a characteristic that users value,” and (ii) Section III.C.5 appropriately
accounts for the fact that “absent reasonable technical standards” concerning IAP offers, the
performance of Windows “might be degraded.” J.A. 1228, 1230. In approving the Consent
Decree, the District Court properly recognized that the decree provides OEMs with additional
“freedoms not clearly implicated” by this Court’s rulings, noting that the technical limitations in
Sections III.C.3 and III.C.5 “reflect[] the give and take of a negotiated settlement.” 231 F. Supp.
2d at 174, 175.
B. The District Court Properly Rejected Additional Remedies.
CCIA and SIIA object that the Consent Decree does not “terminate” Microsoft’s
monopoly or deprive it of the “fruits” of its unlawful conduct. CCIA/SIIA Br. at 34. In particular,
they argue that the Consent Decree should have (i) included certain provisions proposed by the
- 11 -
Litigating States in New York v. Microsoft and (ii) required Microsoft to make more extensive
API and communications protocol disclosures. Id. at 34-40.
The District Court recognized that it would be “incompatible with the facts of this case”
to impose remedies designed to terminate Microsoft’s monopoly, 231 F. Supp. 2d at 153 n.3,
because “plaintiffs never alleged, and neither the District Court nor the Court of Appeals found,
that Microsoft acquired its monopoly unlawfully,” J.A. 1168 n.70 (emphasis in original).
Moreover, “neither the District Court nor the Court of Appeals found [a] direct causal connection
between [Microsoft’s] conduct and the continuance of the monopoly.” J.A. 1168 n.70; see also
231 F. Supp. 2d at 153 n.3. As the United States also explained, the Consent Decree “sufficiently
deprive[s] Microsoft of the fruits of its unlawful conduct” by “restor[ing] the opportunity for
middleware of all types.” J.A. 1147; see also J.A. 1143. For these reasons and others, the
additional remedies advocated by CCIA and SIIA are unwarranted.
1. Remedies Proposed by the Litigating States in New York v. Microsoft
CCIA and SIIA assert that the Consent Decree is “fundamentally flawed” because it does
not include the “Java must-carry injunction” proposed by the Litigating States. CCIA/SIIA Br. at
31. They also argue that the Consent Decree should have required Microsoft to (i) disclose and
license the source code for IE at no charge and (ii) auction the source code for Microsoft Office
to the three highest bidders so that they could “port” Office to non-Microsoft operating systems
such as Linux. Id. at 35-36.
The United States fully addressed these proposals in its response to public comments,
noting that (i) the mandatory distribution of Java represents “the antithesis” of the antitrust goal
of promoting “competition and not specific competitors,” (ii) “open sourcing the Internet
Explorer source code . . . would benefit Microsoft’s competitors rather than ensuring a level
- 12 -
playing field for all participants in the software industry,” and (iii) the porting requirement for
Office “goes far beyond the violations found by imposing . . . substitutes for competition on the
merits and preordain[ing] the market outcome.” J.A. 1146-47, 1349, 1350-51. CCIA and SIIA
provide no basis to second-guess those determinations.
2. API and Communications Protocol Disclosures
Section III.D of the Consent Decree requires Microsoft to disclose to ISVs, IHVs, IAPs,
ICPs and OEMs the APIs “used by Microsoft Middleware to interoperate with a Windows
Operating System Product.” 2002 WL 31654530, at *3. Section III.E of the decree requires
Microsoft to license the communications protocols that Windows desktop operating systems use
to “interoperate, or communicate, natively . . . with a Microsoft server operating system
product.” Id. CCIA and SIIA argue that both provisions are ambiguous and that the Consent
Decree should require more extensive API and communications protocol disclosures. CCIA/SIIA
Br. at 43-46.
a. No Ambiguities
CCIA and SIIA contend that Sections III.D and III.E of the Consent Decree are
unenforceable because the decree “ambiguously defines, or fails to define at all,” critical terms.
Id. at 43.
First, CCIA and SIIA complain that the definition of “Windows Operating System
Product” is determined by Microsoft “‘in its sole discretion.’” Id. at 44 (quoting 2002 WL
31654530, at *15). There is no ambiguity in this definition—the term is explicitly defined to
encompass the software code “distributed commercially by Microsoft” for use with PCs as a
Windows desktop operating system. 2002 WL 31654530, at *15. As the District Court
explained, the definition “recognizes that Microsoft, as the distributor of a product called
- 13 -
‘Windows,’ has the discretion to determine which code to include in its distribution of that
product.” 231 F. Supp. 2d at 166; see also J.A. 1199-1200.
Second, CCIA and SIIA assert that the definition of “Microsoft Middleware” is vague.
CCIA/SIIA Br. at 44. The Consent Decree defines “Microsoft Middleware” as the software code
that, among other things, is “distribute[d] separately from a Windows Operating System
Product” and is “Trademarked.” 2002 WL 31654530, at *13. Far from causing confusion, the
“separate distribution requirement” provides “ready means” to distinguish between components
defined as “Microsoft Middleware” and the remainder of Windows. 231 F. Supp. 2d at 187; see
also J.A. 1178. CCIA and SIIA contend that Microsoft can engage in illegal “product
integration” by defining the term “‘Windows Operating System Product’ to include
middleware.” CCIA/SIIA Br. at 44. That is wrong. “Software code can simultaneously” be
distributed as part of Windows and distributed separately as “Microsoft Middleware.” 231 F.
Supp. 2d at 166; see also J.A. 1200.
Third, CCIA and SIIA assert that two terms—“interoperate” and “server operating
system product”—are improperly left undefined. CCIA/SIIA Br. at 45-46. Not every word in a
consent decree must be defined. See Microsoft, 56 F.3d at 1462 (construing term using “the
logical interpretation of the decree”). Here, the District Court concluded that the definition of
“interoperate” is “apparent from its context” in Section III.D. 231 F. Supp. 2d at 191. The
District Court also concluded that the parties “have a common understanding” of the meaning of
“interoperate” in Section III.E and that “the addition of the words ‘or communicate’” further
clarifies its meaning there. Id.; see also J.A. 1298-1300. The term “server operating system
product” also is not vague. As the United States explained, it includes Windows 2000 Server,
Windows 2000 Advanced Server and Windows 2000 Datacenter Server. J.A. 1293-94.
- 14 -
b. Adequate Disclosures
“Microsoft already discloses thousands of APIs,” J.A. 1274, and “has a clear business
incentive to do so, as it is this disclosure, in part, which makes the Windows platform attractive
to applications developers,” 231 F. Supp. 2d at 189. CCIA and SIIA nevertheless contend that
the Consent Decree should require more extensive disclosures of APIs and communications
protocols. CCIA/SIIA Br. at 11, 38 n.13, 39-40.
First, they argue that Microsoft should be required to disclose information sufficient to
“enable other operating systems to interoperate with the installed base of third party
applications” that have been written for Windows. Id. at 38 n.13 (emphasis added). The violation
in this case, however, did not involve practices directed at “other operating system developers,”
but rather conduct directed at middleware like Netscape Navigator that ran on Windows and
“threatened to lower the applications barrier to entry.” J.A. 1276; see also 231 F. Supp. 2d
at 188. Moreover, the disclosures suggested by CCIA and SIIA would “allow[] competing
operating system vendors to clone Windows APIs” by “requir[ing] Microsoft to provide
information . . . such as how to implement the APIs, not so they can be used by the middleware,
but so that those interfaces can be offered to others.” J.A. 1282. A remedy that facilitates cloning
would range “well beyond” the liability determinations affirmed by this Court. J.A. 1282; see
also J.A. 1273-74.
Second, CCIA and SIIA assert that the Consent Decree does not enable a “nascent
competitor” to offer software that “does more than comparable Microsoft middleware” because
Section III.D requires Microsoft to reveal “only those APIs used by Microsoft Middleware.”
CCIA/SIIA Br. at 39-40. This assertion is wrong. “[T]here is no requirement that any Non-
Microsoft Middleware use the same APIs as the Microsoft Middleware; nor is there any
indication that the only way to accomplish a particular function will be to use the Microsoft
- 15 -
Middleware APIs.” J.A. 1275. That tens of thousands of programs have been written to run on
Windows demonstrates that the thousands of APIs publicly disclosed by Microsoft are sufficient
to enable ISVs to develop innovative programs that run on Windows.
C. The Consent Decree Includes Appropriate Enforcement Provisions.
The Consent Decree establishes a “Technical Committee” composed of three experts who
are to “assist in enforcement of and compliance with” the decree’s provisions. 231 F. Supp. 2d at
196. The decree also gives the United States independent authority to inspect Microsoft’s
records, interview Microsoft employees and require written reports from Microsoft concerning
its compliance efforts. See id. at 198.
CCIA and SIIA complain that the Technical Committee lacks the “legal expertise to
enforce compliance” with the Consent Decree. CCIA/SIIA Br. at 48. This criticism misses the
point. The Technical Committee “is not intended as a substitute for the enforcement authority of
the United States.” 231 F. Supp. 2d at 199.
This does not mean that the Technical Committee’s work is “meaningless,” as CCIA and
SIIA contend. CCIA/SIIA Br. at 49. Rather, the Technical Committee “exists to assist” the
United States by monitoring Microsoft’s compliance with the Consent Decree and by
investigating complaints. 231 F. Supp. 2d at 199. “As the legal interpretation of the decree is
properly left to the parties, with ultimate authority resting with the [District] Court, the focus on
the technical expertise of the Technical Committee is far from troubling.” Id.
III.
Microsoft Complied with the Tunney Act’s Disclosure Requirements.
Section 16(g) of the Tunney Act required Microsoft to disclose to the District Court its
communications “with any officer or employee of the United States concerning or relevant to”
- 16 -
the proposed Consent Decree (other than communications by counsel of record with Department
of Justice employees). 15 U.S.C. § 16(g). Microsoft’s disclosures covered the period beginning
on August 24, 2001, when this Court issued its mandate. See 215 F. Supp. 2d 1, 19 (D.D.C.
2002). The District Court concluded that these disclosures satisfied Section 16(g). Id. at 22.
CCIA and SIIA contend that Microsoft improperly “disclosed only meetings that
occurred during the last round of settlement negotiations.” CCIA/SIIA Br. at 58. Yet the Consent
Decree was a direct outgrowth of the intense settlement discussions ordered by the District Court
on September 27, 2001. Any discussions occurring prior to that time period did not concern and
were not relevant to the Consent Decree ultimately agreed to by the parties. Moreover, the
contours of Microsoft’s liability were not determined until this Court issued its decision.
Previous failed settlement discussions are irrelevant to the Consent Decree, which focuses on
remedying the liability determinations affirmed on appeal.
CCIA and SIIA also suggest in passing that Microsoft should have disclosed
communications with “both the legislative and executive branches of the federal government.”
Id. The District Court properly ruled that Microsoft complied with Section 16(g) by disclosing its
“communications with any officer or employee of the Executive Branch.” 215 F. Supp. 2d at 19.
This holding comports with the plain language of the statute. As the District Court noted,
throughout the remainder of the Tunney Act, the term “‘United States’ plainly refers to the
Executive Branch, as it is the body charged with enforcing the antitrust laws.” Id. at 20; see also
15 U.S.C. §§ 16(b)-(f), 16(h)-(i). In any event, Microsoft advised the District Court when this
issue arose that it had not discussed the terms of the Consent Decree with members of Congress
or their staffs. J.A. 1470.