28124 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: <mailto:sudha@

mail.humonc.wisc.edu> sudha@

mail.humonc.wisc.edu

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 farreaching 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 Intelcompatible 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 courtrun 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 Iˆ driven by their own urge

to win Iˆ 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 Iˆ and antitrust remedies

in particular Iˆ 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 Iˆ or

enhancement Iˆ 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

28126 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 voicerecognition 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 Intelcompatible 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28127

and, by and large, all hardware devices can

be used as well. Affidavit N 10. Hence, the

consumer avoids the need for timeconsuming, 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

28128 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 crosspurposes 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 takeoverrelated 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

28130 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 CourtRun 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 nonconsensual 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 voicerecognition 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

28132 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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).

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

savages@pcez.com

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 postsale 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

28134 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Tur@ao1.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28135

Unger Technologies, Inc.

Microsoft Certified Partner

Compaq Solutions Alliance Partner

geunger@ungertech.com

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 anticapitalistic 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: ACEEBO@aol.com@inetgw

To: Microsoft ATR

28136 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 aceebo@aol.com

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

ventura@MailZone.com

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 securityrelated 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

ventura@MailZone.com

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 <http:/

/www.kegel.com/remedy/remedy2.html>.

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: dianaheileman@hotmail.com@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:dianaheileman@hotmail.com@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 nonsequitur. 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

28138 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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) chip@wittzend.com

(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: chamber@fairborn.com

Web Page: www.fairborn.com

MTC–00027828

From: Daniel.Jack@us.hsbc.COM@inetgw

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:fin@mobilizationoffice.com@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: amancini@mancini.net

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.

<<Letter to John Ashcroft for Microsoft- 01–

28–2001 .dot>>

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28140 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

erict@strategicrenewables.com

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

togiffords@aol.com

Alpharetta, Georgia

MTC–00027838

From: Hbsjps@aol.com@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: FullcutInc@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: GJP85@aol.com@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 ‘‘LegUp’’

Jerry Purcell

106 Cedar Drive

New Britain, PA 18901–5229

215–230–1911

CC:fin@mobilizationoffice.com@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. Unneccessary 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 rethink 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:fin@mobilizationoffice.com@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.

28142 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Madison90@aol.com@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: triem@isd.net@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 threeperson 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: PhantomPC2@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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).

microsoft.atr@usdoj.gov

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

28144 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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

28146 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

Guthrie.chamberlain@eagletgi.com

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

28148 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 BEOS 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28149

USA

952–563–4882 (voice)

952–563–4672 (fax)

swhite@ci.bloomington.mn.us

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

bryany@pathcom.com

28 January 2001

Ms. Renata Hesse

Trial Attorney

Suite 1200

Antitrust Division

Department of Justice

A Cornerstone Technology for the TwentyFirst 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 sixmonth-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 nonMicrosoft 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

28150 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 memorymanagement 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

28152 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonWindows 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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%25

3D20078,00.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 nonMicrosoft 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 ‘‘plugins’’ 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 beable 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 anticompetitive 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)

28154 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

ghill@qnet.com

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

ghill@qnet.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 courtappointed 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:fin@mobilizationoffice.com@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

<mailto:Nicholas.Vanderpyle@

Boeing.com>

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

28156 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Kenlindsay@lani.net@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 economicallydraining 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; wellfunded, 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

saule@pobox.com

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

mitch@accidentalexpert.com

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: golubicv2@attbi.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:golubicv@ieee.org@inetgw

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: jstrang@campbell-co.com

CC: fin@mobilizationoffice.com@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: hayas@ib.stortek.com@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—hayas@stortek.com

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: cstauffer@swmail.sw.org@inetgw

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 economicallydraining 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

28158 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

FAX 508–300–0337

stevea@eosgroup.com

www.eosgroup.com

MTC–00027900

From: VLKBARKAN@aol.com@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)

alonzogariepy@mac.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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

28160 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: amford@american.edu@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: amford@american.edu

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: rcolli23@csc.com@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 nonMicrosoft 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:dkleinkn@yahoo.com@inetgw

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

mja57@prodigy.net

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 nonVerDate 11<MAY>2000 05:00 Apr 28, 2002 Jkt 189961 PO 00000 Frm 00039 Fmt 4701 Sfmt 4703 E:\FR\OC\A74AD3.302 pfrm01 PsN: ADVBOOK9
28162 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Intelbased 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 deadzone 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: dtaber-page@forte.com (keep your

message just one line ! !)

fax: +1–650–326–1475

mail: DOT@D-O-Tnet.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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

kmcdaniel@arrivaltech.net

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 breakup 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: RDRoach22@aol.com@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 antitrust 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

28164 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonopen 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 threeman 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,jpeterson@ets.org@

inetgw,djinn1@ix.n...

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:

DEMatthews2@aol.com@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,

<mailto:microsoft.atr@usdoj.gov>

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 fullblown 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: HHawkjr@aol.com@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

28166 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: bobjomurrell@juno.com@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 ‘‘antipiracy, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: esterhazy@juno.com@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

nal1212@yahoo.com

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: jv@spork.nyc.ny.us

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 heavyhanded, 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:microscopeslslslsvc@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 economicallydraining 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

28168 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Raymond.Fairbanks;@

LibertyMutual.com@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?

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

jllotter@Iotteract.com

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 strongarm 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 havenots 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

28170 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 threeman 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:

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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.

28172 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: dbeausan@Mines.EDU@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 MicrosoftDOJ 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: IRSK1@aol.com@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 [irskl@aol.com]

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: mickeytwomouse@yahoo.com@inetgw

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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

altesj@usa.redcross.org

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 nonMicrosoft 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

lauraa@ori.org

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

Jennyxgx@yahoo.com

MTC–00027992

From: patents@astreet.com@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

28174 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:patents@astreet.com@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-KotallyI 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 *nonprofit* 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

t.gardner@computer.org

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

28176 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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—ka@msn.com

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 nondiscriminatory 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.’’

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nearmonopoly 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

28178 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:becker@primate.wsic.edu@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

jmhouston@earthlilnk.net

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: JLLIZANO@aol.com@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:fin@mobilizationoffice.com@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 antichurning 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:bob.clement@mail.house.gov@inetgw

MTC–00028011

From: donlstev@cs.com@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 antitrust 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: coonhnd@aol.com@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 economicallydraining 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: coonhnd@aol.com@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 economicallydraining 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

28180 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

longer will just cost more in litigation fees

which will ultimately be paid for by the

consumer. Thank You

MTC–00028018

From: biokemist@altavista.com@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 economicallydraining 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 unAmerican. They’re every bit as manipulative

and predatory while hiding behind a panoply

of legalisms as the worst stories of turn-ofthe-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—gregory@netzero.net

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

dsparry@prodigy.net

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 codenamed 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)

vrhodes@archway.com (work email

address)

vaughnrho@aol.com (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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

bart@truedisk.com

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: jayc@scanhealthplan.com

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

28182 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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-bbut, 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, consumergrade 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:

<http://www.dell.com/products/workstat/

ISV/linux.htm>

<http://www.compaq.com/isp/news—

events/index.html>

<http://www.compaq.com/newsroom/pr/

1998/wall1298a.html>

<http://www.hp.com/pressrel/jan99/

27jan99.htm>

<http://www.hp.com/pressrel/jan99/

27jan99b.htm>

<http://www.software.ibm.com/data/db2/

linux/>

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 <http://

www.pathfinder.com/fortune/1999/O3/O1/

mic3.html>.]

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,

jcalmon@beeurope.com, for country-bycountry 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’’

<http://www.be.com/aboutbe/

thebenewsletter/volume—III/Issue8.html>).

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

28184 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

http://www.djmaytag.com/303/ <- The TB303 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 prenomination 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,

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 anticompetitive.

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)

swhite@ci.bloomington.mn.us

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:aoctp@aoctp.org@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: sleepinggiantknr@aol.com@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 economicallydraining 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

28186 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: sleepinggiantknr@aol.com@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 economicallydraining 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: azdeal@csi.com@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 malinfluence 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 privacycontrol 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:

Tony.Christopher@MongooseTech.com

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:microsoftcomments@doj.ca.gov@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)

RLS0938@AOL.COM

MTC–00028047

From: Nuovo1@aol.com@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

28188 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:microsoftcomments@doj.ca.gov@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: wsrcjr@optonline.net

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: WPARK1220@aol.com@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 nonMicrosoft 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 anticompetitive 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:microsoftcomments@doj.ca.gov@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—clark@yahoo.com

MTC–00028055

From: ivoryf@cut.net@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: Veritas123@aol.com@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: geheuler@verizon.net@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28189

technology. This country was built on

competition and he epitomizes competition.

MTC–00028058

From: tlerb@aol.com@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: Robert.ewald@worldnet.att.net@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: zman@c2on.net@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: geojenner@aol.com@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: hking24834@aol.com@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: cyvalco@juno.com@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—odwyer@yahoo.com@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: rkbrooks@amaesd-net.com@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: birdiebajc@juno.com@inetgw

To: Microsoft ATR

Date: 1/28/02 1:18pm

Subject: Microsoft Settlement

Stop persecuting innovative firm

MTC–00028067

From: cdj@aol.com@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: batigerlily@hotmail.com@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 threeman 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

28190 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

MTC–00028070

From: rgbagwell@msn.com@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 builtin 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: bobreist1@juno.com@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 taxpayers 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: dericwise@hotmail.com@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: rscully@bellsouth.net@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: bgreer22@yahoo.com@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: gibsonrj@nc.rr.com@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: elroberson@juno.com@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—jr2@hotmail.com@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: valleybill@hotmail.com@inetgw

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: brooktl@gte.net@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: girls@citigraphics.com@inetgw

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: barchas1@msn.com@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: ronlnels@hotmail.com@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: zman@c2on.net@inetgw

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: wolfen616@aol.com@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: wingswren@yahoo.com@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: carolnbruce@hotmail.com@inetgw

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: halstead6@earthlink.net@inetgw

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: cortath@juno.com@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—2000@yahoo.com@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: emelianoff.dimitri@mediaone.net@

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:emelianoff.dimitri@mediaone.net@

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:microsoftcomments@doj.ca.gov@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 midsized companies Microsoft* provided an easy

to use, cheap, out-of-the-box usable

computing environment.

28192 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 lowpriced, 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: arlenbetty@centurytel.net@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: drwhom@valleyalley.com@inetgw

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: itremblay@msn.com@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: bob@purdue.edu@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—dixon@email.msn.com@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: chstudstill@juno.com@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: mikesuda@gtw.net@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: ggallas1@nycap.rr.com@inetgw

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: kwshaeffer@att.net@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: bobleibo@bellatlantic.net@inetgw

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—miller@hotmail.com@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: nirgal27@yahoo.com@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: alben4@juno.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: ewspak@yahoo.com@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: Clintwood456@juno.com@inetgw

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: Jumpj52@hotmail.com@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: ellieford@juno.com@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: willo@pillars.net@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: zhou0628@hotmail.com@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: fghewitt@juno.com@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: afreespirit@email.msn.com@inetgw

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: ctrizogl@cisco.com@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: liloc@att.net@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: sportsranch@msn.com@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

28194 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: bone@apex.net@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: wtmizuto@msn.com@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: rustynail@hci.net@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: judimoore@pioneernet.net@inetgw

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: Adella@msn.com@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: emory@iquest.net@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: carol1335@aol.com@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: nclac@att.net@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—talbot@hotmail.com@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

wa7hif@juno.com

MTC–00028133

From: williamandgwenfisk@msn.com@

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: sprice@hyperaction.net@inetgw

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: mccpb@bellsouth.com@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: HMGuzzo@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28195

WHAT YOU WANT.I THINK YOU ARE

BARKING UP THE WRONG TREE. GO FIND

THE REAL CROOKS

SINCERELY

HOPE GUZZO

MTC–00028137

From: exnun68@juno.com@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: bobal251@hotmail.com@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: jorjw@msn.com@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: aerospectrum@juno.com@inetgw

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: byne@home.com@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: info@bayermedia.com@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: tbe@ingeroll.com@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: pdp216@msn.com@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

28196 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

number of state attorney generals please

endorse this settlement.

Thank-you.

Sincerely

Pam & Phil Mehling

MTC–00028148

From: g.weess@worldnet.att.net@inetgw

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: immbfd@gwumc.edu@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: pdp216@msn.com@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: gogadgetstubbs@netscape.net@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: LSUangel56@aol.com@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: kellythm@Hotmail.com@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: Mbanks@sport.rr.com@inetgw

To: Microsoft ATR

Date: 1/28/02 1:23pm

Subject: Microsoft Settlement

I AGREE WITH THE SETTLEMENT

MTC–00028156

From: rolfglerum@msn.com@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: rroland@dol.net@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: brians@110.net@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: acesinger@msn.com@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: refraxx@hotmail.com@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: fwcourington@foxinternet.net@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: dweick@ashland.edu@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: patinmur@aol.com@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: bvarnam@atmc.net@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: nursejane@worldnet.att.net@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: dbyrd@mcomposites.com@inetgw

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: DTPatterson@aol.com@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: goliver@kih.net@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: kemmere@home.com@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

28198 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: tmartsun@aol.com@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: wmconveyarch@msn.com@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: jimthom78@aol.com@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: jeronamo69@hotmail.com@inetgw

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: drgruber@juno.com@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: dpost@waypt.com@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: phy1@milwpc.com@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: waldcwil@bellsouth.net@inetgw

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-su@clarityconnect.com@inetgw

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: archangel525252@hotmail.com@

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: fsalzone@suffolk.lib.ny.us@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: rjm.rn1@juno.com@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: wallgren@flash.net@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: ftrax1@juno.com@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:lstress@aol.com@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!

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28199

MTC–00028188

From: pshoup@juno.com@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: p.luczka@ieee.org@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: jhoward964@aol.com@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: lhack@ubtanet.com@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: polymorphic@geocities.com@inetgw

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: rogowski@pacifier.com@inetgw

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: mav802@aol.com@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: shors7@hotmail.com@inetgw

To: Microsoft ATR

Date: 1/28/02 1:24pm

Subject: Microsoft Settlement

I support Microsoft in settling the law suit.

MTC–00028196

From: hunt4Him@aol.com@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: RBSB@att.net@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: leegj@home.com@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-o@msn.com@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: azadoks@aol.com@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: Michael.Sypek@verizon.net@inetgw

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: Littleangels1120@msn.com@inetgw

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: mlanders@triad.rr.com@inetgw

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

28200 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

finalize this settlement and stop bleeding

taxpayers and shareholders.

MTC–00028204

From: ALLENMMETZGER@PRODIGY.NET@

inetgw

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: Vanny97@aol.com@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: AFeldman@Symantec.com@inetgw

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: APALACHFLA@aol.com@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: 2mlech@effingham.net@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: raymarieramirez@prodigy.net@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 economicallydraining 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—sharp@msn.com@inetgw

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

<<comments on MS.rtf>>

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-todate 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 email 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 prerelease 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

28202 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: clvanauken@mindspring.com@inetgw

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: billsanchez@juno.com@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: l.m.james@att.net@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28203

good of America and the economy, and for

us, the happy Microsoft consumers.

Sincerely,

Laurel James

MTC–00028216

From: vdrlholl@

westrelay01.boulder.ibm.com@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: petitjim@juno.com@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: bilretz@webtv.net@inetgw

To: Microsoft ATR

Date: 1/28/02 1:25pm

Subject: Microsoft Settlement

get off microsofts back!!!

MTC–00028220

From: cheronad@bellsouth.net@inetgw

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: raygps@cs.com@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 easeof-use, improved efficiency, created value,

and reduced cost.

MTC–00028222

From: lesterh@twave.net@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: edbar@starband.net@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: stover8@juno.com@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: denrosep@juno.com@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: carollila@juno.com@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-remcheck@webtv.net@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: champcom@juno.com@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: vendor@techcollective.com@inetgw

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

28204 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: TDill@rochester.rr.com@inetgw

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: innthyme@twcny.rr.com@inetgw

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: robertsw@mindspring.com@inetgw

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: Nperricci@cox.rr.com@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: lrhino@dcwis.com@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: barney13@mindspring.com@inetgw

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: webmaster@seltenrich.com@inetgw

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: edhandlender@juno.com@inetgw

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: Soko@kendaco.telebyte.com@inetgw

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: dallasscowboys@juno.com@inetgw

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: wolfman@mwcsd.k12.ny.us@inetgw

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—ron@msn.com@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28205

systems when a competting business begins

to spend resource to point out the unfairness

and fix the software bugs.

T

MTC–00028242

From: holgateg@montana.com@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: iancoffer@msn.com@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: feyrerstation@hotmail.com@inetgw

To: Microsoft ATR

Date: 1/28/02 1:25pm

Subject: Microsoft Settlement

I believe the U.S. government acted

correctly to investigate Microsoft for antitrust 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: pyetka@ptialaska.net@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: dbnee@mc.net@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 nonsettled 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: LDeriau@aol.com@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 ongoing 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: pasqualini@msn.com@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

28206 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

jcallahan@acm.org

MTC–00028252

From: wvcoal@msn.com@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: Potteryfolk@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-SatelliteBroadcast 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: donlwilliams@hotmail.com@inetgw

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 economicallydraining 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: CDCIAO4@aol.com@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

28208 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: AESOLVANG@aol.com@inetgw

To: Microsoft ATR

Date: 1/28/02 1:44pm

Subject: Fwd: Attorney General John

Ashcroft Letter

CC: fin@mobilization.com@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 fin@mobilizationoffice.com

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: microsoft.atr@usdoj.gov

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: hbennion@es.com@inetgw

To: Microsoft ATR

Date: 1/28/02 1:46pm

Subject: Microsoft Settlement

To: microsoft.atr@usdoj.gov

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

hbennion@es.com

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 nonMicrosoft 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/shanti@deltek.com

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

28210 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

dcwebb@mofo.comappeal

MTC–00028272

From: tom@wt6.usdoj.gov@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: BDS4530@aol.com@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:fin@mobilizationoffice.com@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 (microsoft.atr@usdoj.gov)

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

28212 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: armen@kazagur.com@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:armen@kazagur.com@inetgw

MTC–00028280

From: AlSirkin@aol.com@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

<<millerl.pdf>>

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 loopholeridden 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 carveouts 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

28214 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

3This 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.

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.

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

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.

II. AS MICROSOFT STARTS TO

IMPLEMENT MOST OF THE DECREE’S

PROVISIONS, THE COURT SHOULD

CONSIDER HOW—IF AT ALL—OEMS ARE

RESPONDING.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28215

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.

8Some 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).

9Although 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.

10See Jeff O’Heir, Analysis: MS & DOJ Reach

Agreement, P.C. Dealer, November 12, 2001

(quoting Roland Pinto); see also Randy Barrett, MSDOJ 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.’’b.

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.’’

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

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 fourmonth 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 nonMicrosoft 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 nonMicrosoft 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 nonMicrosoft middleware—it is not advanced by

the unexercised presence of theoretical OEM

choice.

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

28216 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

11See 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.

13We 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.’’).

14A 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’’).

15See 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.’’).

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 browserrelated 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, theb, 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

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.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28217

16See 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’’).

17See Microsoft, 253 F.3d at 51, 103.

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’’)*

19The 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.

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 preinstalling a second application in a given software

category as a questionable use of the scarce and

valuable space on a PC’s hard drive.’’).

21For 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.

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.

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.

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

Julb’’, 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.

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.

Microsoft’s suggestion that competition is

adequately served by allowing OEMs to preinstall rival middleware and to remove enduser 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 preinstalling 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.’’

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

28218 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

22See 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.’’).

23See 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 .... ‘‘).

24The 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:

25Note 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 crossplatform Java interfaces).

26See Findings of Fact, 84 F. Supp. 2d at 19–22,

¶¶ 36–44.

products. (See Mathewson & Winter Report at

¶ 16.)

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.

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.

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28219

27See 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’’).

28This 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.

29The 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.)

30See 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).

31This 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.

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.

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.)

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.)

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

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

28220 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

32We 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.

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

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28221

33Less 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.

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.)

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

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.

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

28222 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

36See Brad King, Microsoft Poised for Music

Domination, Wired, June 14, 2001.

37As 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.

38For 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.

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 nonMicrosoft 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.

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

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 nonMicrosoft middleware products are able to

compete effectively with Microsoft products,

licensees, such as OEMs, must have the

ability to distribute and promote nonMicrosoft products without fear of coercion

or interference from Microsoft. Recognizing

the central role that OEMs play in the

distribution and ultimate usage of nonMicrosoft 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 alreadyexisting 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

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28223

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.

40 (See States’’ Proposed Text ¶ 22(w).)

41See 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’’).

42The 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.

43See Rebecca Buckman, Microsoft Says Its

Future Lies in Subscriptions, The Wall Street

Journal, May 31, 2001.

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.

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.

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.

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.

Additionally, Section III.H.2 of the PFJ

explicitly limits OEM flexibility to set nonMicrosoft 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 TopLevel 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 juryrigged 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

28224 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

44Similar 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.

45Here, 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.

46The 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).

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 factfinding 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.

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 anb,

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28225

47The 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.

48While 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.

49This 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.

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 necessaryto 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.

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.

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 the49 same legal

principles. See Section I, supra.

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

28226 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

50Although 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.’’).

51As 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.

weigh an evidentiary record compiled by the

Congress, it surely can weigh an evidentiary

record of its own creation in a related

proceeding. 50

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; 51how

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.

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 ANTICOMPETITIVE 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28227

1Mathewson 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.

2Middleware 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.

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.

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 endusers 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 standalone 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 nonMicrosoft 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 antiVerDate 11<MAY>2000 05:00 Apr 28, 2002 Jkt 189961 PO 00000 Frm 00105 Fmt 4701 Sfmt 4703 E:\FR\OC\A74AD3.347 pfrm01 PsN: ADVBOOK9
28228 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

3See U.S. v. Microsoft, 84 F. Supp. 2d 9 (D.DC

1999) (‘‘U.S. Findings of Fact’’), 36ndash;44.

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.

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.)

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 anticompetitive 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 anticompetitive 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 anticompetitive 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 entry3 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-andegg’’ 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.

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

(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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28229

7This 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.

8See U.S. Findings of Fact ¶¶ 33–35, 60–64.

9 It may appear that any preservation-ofmonopoly 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.

10The 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

Continued

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 recoding 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.

(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.

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

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.

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 monopolyinsurance theory thus explains the anticompetitive 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 preservationof-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

28230 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

11See 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.

12See 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.

13The 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.’’). 14See U.S. Findings of Fact ¶¶ 68–72.

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.

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-byperiod 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 alreadypurchased 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.

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 ecommerce 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.

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.

(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 anticompetitive 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28231

15Note that licensing at a monopoly royalty

would have a similar effect of foreclosing

competition.

16Microsoft’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.

17Microsoft has already established general

strategies for obtaining control over e-commerce

standards.

These connections are the Microsoft Passport,

.Net, and .Net My Services initiatives.

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.

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.

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

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

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 ecommerce 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

28232 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

18Of 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.

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 endusers, 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

GVIDENCE IN THIS CASE, THE

CONCLUSION IS THAT MICROSOFT HAS

ENGAGED, AND IS ENGAGING, IN ANTICOMPETITIVE 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28233

19See U.S. Findings of Fact ¶ 93.

20Microsoft 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.

21See 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.

22See 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?’’).

23—,3 See U.S. Findings of Fact i 112.

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.

25See U.S. Findings of Fact ¶ 160.

26See 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 CDROMs 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.’’).

barrier to entry or competes directly with

Microsoft’s most cherished software

products.’’ 19 As a historical matter,

Microsoft has clearly engaged in anticompetitive, inefficient tying with other

applications. 20For 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.

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.

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 anticompetitive’’ 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 anticompetitive 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.

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 anticompetitively 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

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 selfrealizing 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 selfrealizing 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

28234 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

27This 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.

standards27 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 anticompetitive.

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 ‘‘onemonopoly 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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.

28236 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

‘‘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 NonPrice 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-byprovision 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.

28238 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nondiscriminatory 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 ‘‘hardwiring’’ 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 NonMicrosoft 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 preinstalled 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 noninteroperable 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 serverbased 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 selfdeclared 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/serverbased 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 nonMicrosoft 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

28240 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 timeconsuming.

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 timelines 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 bViii 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

wildcat@wildcatslair.com

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

mgoun@hotmail.com

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: amchugh@speakeasy.net@inetgw

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

amchugh@speakeasy.net

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 -rejectthe 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: davej@ccnet.com

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

28242 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 userfriendly? 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: peter@goldthorp.com@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.

28244 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 concernI 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: pjmet@quixnet.net@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: bwood@providentmutual.com@inetgw

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—Wood@providentmutual.com

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/

<http://lyre.mit.edu/%7Epowell/>

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: microsoft.atr@usdoj.gov

(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

28246 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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, nondiscriminatory access to communications

protocols used for services, and nondiscriminatory 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 intellectualproperty 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 opensource 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 operatingsystem 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 fiveto-seven year term is artificially brief,

considering that this case has already been

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 shortterm 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 SunTimes,’’ Chicago Sun Times, June 1, 2001.

James Love

Consumer Project on Technology

P.O. Box 19367, Washington, DC 20036

http://www.cptech.org, mailto:love@

cptech.org

voice: 1.202.387.8030 fax 1.202.234.5176

mobile 1.202.361.3040

MTC–00028314

From: Drgesq2@aol.com@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.

(drgesq2@aol.com)

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 lapoe5@msn.com

CC: Lettie Ann Poe

MTC–00028316

From: a p

To: Microsoft ATR

Date: 1/28/02 2:11pm

Subject: Microsoft Settlement

Dear Judge Kollar-KotallyI 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

28248 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

microsoft.atr@usdoj.gov

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

grantyoung72@hotmail.com

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

RLS0938@AOL.COM

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: AmericoC@yahoo.com@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 renegotiated 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

rbcarey@pima.edu

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

cpand@minot.com

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: wad@wt6.usdoj.gov@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

28250 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 anticompetitive 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: fin@mobilizationoffice.com@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: ROSEFR@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: jlewin@mail.com@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:jlewin@mail.com@inetgw

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: satteson@pclink.com@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 antitrust 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

28252 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Microsoft’s ongoing and likely future anticompetitive practices.

With the release of it’s latest, highlyintegrated 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 anticompetitive 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

satteson@pclink.com

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 antitrust 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28253

Proposed Final Judgment. It solves nothing in

the matter.

Sincerely,

Simplicio, Tualla Jr.

8959 Tam OShanter Dr.

Stockton, CA 95210

MTC–00028340

From: jason.walker@flyingj.com@inetgw

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 <fin@MobilizationOffice.com>

To: <bsmyoung@adelphia.net>

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 fin@mobilizationoffice.com 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: microsoft.atr@usdoj.gov

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—stearn@digitalsunrise.com

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

28254 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

woodym@mac.com

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: ROSIEMUS@aol.com@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: abelem@mcnet.marietta.edu@inetgw

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

ereiamjh@pacbell.net

MTC–00028349

From: sturde@az.com@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: microsoft.atr@usdoj.gov

(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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 conductonly 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, nondiscriminatory access to communications

protocols used for services, and nondiscriminatory 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 intellectualproperty 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 opensource 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 operatingsystem 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. ‘‘’’

28256 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 fiveto-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 shortterm 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. sturde@az.com

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 wellmeaning 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 wornout 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:

sshriver@po.tcs.k12.oh.us

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

NAstarchld@sybercom.net

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 reattempting 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 ecommerce 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

28258 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 ecommerce 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

andy@lightweapons.com

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:microsoftcomments@doj.ca.gov@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

tulrich@anu-co.com

800–848–2090

1≤ARTHUR 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:microsoftcomments@doj.ca.gov@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 nonMicrosoft 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—tait@yahoo.com

(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 antitrust 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.

28260 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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/<fill in the blank>’’, 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

jamie.folsom@post.harvard.edu

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

Walton@Ameritech.Net

MTC–00028368

From: Gregg Williams

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-thanaverage 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, greggw@telocity.com

MTC–00028369

From: Karenlda@aol.com@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: tcrech@juno.com@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

28262 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 illgotten 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

transue@duke.edu

(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

28264 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Morr109@yahoo.com

Corvallis, OR

United States of America

MTC–00028377

From: wvdavid@access.mountain.net@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 wvdavid@access.mountain.net

January 28, 2002

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW, Suite 1200

Washington, DC 20530–0001

microsoft.atr@usdoj.gov

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: wvdavid@access.mountain.net

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: Gfound@aol.com@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: dhurst@KsuMail.Kennesaw.Edu@

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:dhurst@kennesaw.edu

Kennesaw State University

Dow.Hurst@mindspring.com

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: vanbeuzekom@yahoo.com

MTC–00028381

From: CTMCCUNE@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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.

dlantz@advtechgroup.com

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: Odysseynorth@aol.com@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: OdysseyNorth@aol.com

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: Tracyalindgren@aol.com@inetgw

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

28266 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: cmetzler@speakeasy.net@inetgw

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 antitrust 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-anticompetitive 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

28268 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 *nonmonetary* 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 proMicrosoft 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

WayneLSmith@hotmail.com

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 anticompetitive 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

28270 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 joeikel@attbi.com

tel: (206) 232–5643

MTC–00028395

From: dave@ipgroup.org@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\’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: david.anderson@jpl.nasa.gov@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 Amtitrust 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 reconfigure 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:fin@mobilizationoffice.com@inetgw

MTC–00028400

From: Mueone@aol.com@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: FBROKER@aol.com@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 threeman 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

28272 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:fin@mobilizationoffice.com@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:

macrist@netscape.net@inetgw

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

macrist@netscape.net

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

huesofgreen@yahoo.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 antitrust 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,nolandpeebles@attbi.com

@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: cmcdanielneff@comdt.uscg.mil

MTC–00028419

From: E T

To: Microsoft ATR

Date: 1/28/02 3:14pm

Subject: Microsoft Settlement

Dear Judge Kollar-KotallyPlease 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

28274 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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)

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28275

—W. Curtiss Priest, Director, CITS

Center for Information, Technology &

Society

466 Pleasant St., Melrose, MA 02176

Voice: 781–662–4044 BMSLIB@MIT.EDU

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: madams@gtech.com

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

(microsoft.atr@usdoj.gov)

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:david.rose@us.wmmercer.com

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 email 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

28276 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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)

gary@robson.org http://www.robson.org/

gary/

MTC–00028434

From: David Martin

To: Microsoft ATR

Date: 1/28/02 3:22pm

Subject: Microsoft Settlement

To: microsoft.atr@usdoj.gov

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 anticompetitive 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 Windowscompatible 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

Dmartin82@yahoo.com

MTC–00028435

From: bboam@infowest.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: legwatch@reliableanswers.com@

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 economicallydraining 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: rglenn@wt6.usdoj.gov@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

28278 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:byoung@pcisys.net@inetgw

MTC–00028444

From: gigi.burton@us.cgeyc.com@inetgw

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: microsoft.atr@usdoj.gov

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 anticompetitive 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: davej@ccnet.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 threeman 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. <<SIIA 28 Jan 2002 Tunney

Act.doc>>

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: MBohannon@siia.net

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: MFBartley@aol.com@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

28280 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: microsoftcomments

@doj.ca.gov@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 HewlettPackard 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 wirelevel (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 redefined 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: microsoftcomments@doj.ca.gov@

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

ncatron@earthlink.net

23747 Vassar

Hazel Park, MI 48030

MTC–00028459

From: aschan@att.net@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 antcompetitive 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: microsoftcomments@doj.ca.gov@

inetgw

MTC–00028461

From: DEDLYDON@aol.com@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

28282 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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—netcom@yahoo.com

MTC–00028463

From: Jcc1@aol.com@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: Essfor@aol.com@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

essfor@aol.com

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: clcorea@sierratel.com@inetgw

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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 anticompetitive 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: <no 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

<<Microsoft Settlement.doc>>

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 longrunning 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?

28284 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:fin@mobilizationoffice.com@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

rshwake@rsxtech.atww.org

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:microsoftcomments@doj.ca.gov@inetgw

MTC–00028476

From: donb@gasullivan.com@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:donb@gasullivan.com@inetgw

MTC–00028477

From: bking@wt6.usdoj.gov@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonprofit 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

jeff@research.panasonic.com (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 competitorfunded 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: hjordan@csonline.net@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 economicallydraining 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: microsoft.atr@us-doj.gov

From: Tommy Ward <tommy@msbit.com>

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

>tommy@msbit.com

MTC–00028483

From: Phyllida@aol.com@inetgw

28286 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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, notfor-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

Lawrence@LawHusick.com

http://www.LawHusick.com

P.O. Box 587

Southeastern, PA 19399–0587

610/296–8259 Voice 610/296–5816 Fax

AOL/Netscape IM: LawHusick

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Autobiographical Notes

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turn blue. Thank you.

(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 nonMicrosoft 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: SHOCK4952@aol.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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’’

<fin@MobilizationOffice.com>

Monday January 28, 2002 03:55 PM

To: ‘‘donald—barlow@prusec.com’’

<donald—barlow@prusec.com>

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 fin@mobilizationoffice.com 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: microsoft.atr@usdoj.gov

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)

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PRUDENTIAL.COM. 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: Rolejoele2@aol.com@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

28288 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 allimportant 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

mcginley@pericle.com 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:fin@mobilizationoffice.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28290 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 anticompetitive 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-thewrist’’ 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 selfserving. 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: Rolejoe1e2@aol.com@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: PlattDJ@aol.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28291

mailto:rmartin@dominiontechnology.com

(614) 529–1284 Home

(614) 216–7197 Cell

Richard Martin

Assistant Professor

DeVRY Institute of Technology

(614) 253–7291 x2551

mailto:rmartin@devrycoIs.edu

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: BRogoff@aol.com@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

28292 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 anticompetitive. 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 KollarKotelly 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 anticompetitive 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 illconceived 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 preMicrosoft 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 proMicrosoft and proconsumer.

It was never in the interest of North

Carolina consumers to be part of this witchhunt. 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 selfmade 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 steve43@starpower.net

CC:steve43@starpower.net@inetgw

MTC–00028521

From: MCFLOYD01@aol.com@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.

28294 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

I hate that because a man builds and mutibillion 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: jhunt@seniorexplorer.com@inetgw

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: paul.ilgen@highmark.com@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

jdettre@home.com

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 nondiscriminatory 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

28296 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

lbloom@healthplan.com

(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-thewrist’’ 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 byproduct 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

28298 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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,karl@karl.com@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

karl@karl.com

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

doj.ms@jjgifford.com

January 28, 2002

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530–0001

microsoft.atr@usdoj.gov

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 NonMicrosoft 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 Microsoftowned 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.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

28300 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 securityrelated 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 noncompliance.

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 noncompliance 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 noncompliance to the Court, and produce

evidence of it via other means. This may well

happen in the case of massive or severe noncompliance. However, what happens to the

small ISV who suspects Microsoft of noncompliance, 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 computerindustry 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 reentered 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 anticapitalist 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

28302 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Microsoft get back to doing what they do best

? innovate!

Thank you for your time,

Gordon Fox

MTC–00028549

From: ldlininger@attbi.com@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 lockin,competition-stifling and monopolyextending 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:fin@mobilizationoffice.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Arman.Oruc@CliffordChance.com@

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.

<<Palm’s Tunney Act Submission.pdf>>

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 socalled 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 MSOffice, 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 nonexclusive 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,

28304 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

frone@prodigy.net

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 anticompetitive 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:microsoftcomments@doj.ca.gov@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 opensource 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 opensource 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: BigStrains@aol.com @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: fin@mobilizationoffice.com@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: markcooper@aol.com

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.

28306 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 KollarKotelly 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-tooshort 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 loopholefiddled 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 anticompetitive 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, consumerfriendly 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 ANTICOMPETITIVE 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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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 anticompetitive 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:

u` 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 MicrosoftDepartment 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

28308 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 MicrosoftDOJ 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 NONCOMPLIANCE, 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 [michael.leibowitz@

cirrus.com]

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: microsoft.atr@usdoj.gov

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: bfgx@yahoo.com

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: dank@wt6.usdoj.gov@inetgw

To: Microsoft ATR

Date: 1/28/02 4:39pm

Subject: Microsoft Settlement

To: microsoft.atr@usdoj.gov

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 anticompetitive 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 Intelcompatible 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-ms@kegel.com.

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 nonMicrosoft 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

28310 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

email clients can plug in properly to

Windows.

E. Microsoft will license on reasonable

terms the network protocols needed for nonMicrosoft 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 Intelcompatible 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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 Windowscompatible 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 nonMicrosoft 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 nonMicrosoft software.

Which practices towards end users should

be prohibited?

Microsoft has used both restrictive licenses

and intentional incompatibilities to

discourage users from running Windows

28312 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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 nonMicrosoft 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 Windowscompatible 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 Intelcompatible 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 reappointment 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 poorlydocumented 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

28314 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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: microsoft.atr@usdoj.gov

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 anticompetitive 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 Intelcompatible 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-ms@kegel.com.

Understanding the Proposed Final

Judgment

In crafting the Final Judgment, the judge

will face the following questions:

* u` How should terms like ‘‘API’’,

‘‘Middleware’’, and ‘‘Windows OS’’ be

defined?

* u` How should the Final Judgment erode

the Applications Barrier to Entry?

* u` How should the Final Judgment be

enforced?

* u` What information needs to be released

to ISVs to encourage competition, and under

what terms?

* u` Which practices towards OEMs should

be prohibited?

* Which practices towards ISVs should be

prohibited?

* Which practices towards large users

should be prohibited?

* u` 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 nonMicrosoft 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 nonMicrosoft 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:

* u` 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 Intelcompatible operating systems. Yet the PFJ in

definition U defines a ‘‘Windows Operating

System Product’’ to mean only Windows

2000 Professional, Windows XP Home,

28316 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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, XBox, 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 nonMicrosoft 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

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 nonMicrosoft middleware and operating systems.

Two examples are given below.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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 Windowscompatible 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 nonMicrosoft 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 Windowscompatible 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 nonMicrosoft 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:

* u` 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.

u` 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.

28318 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

?? 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,

* u` 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 Intelcompatible 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 fourtyfour 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 reappointment 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 poorlydocumented 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

28320 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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 email 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: dank@wt6.usdoj.gov@inetgw

To: Microsoft ATR

Date: 1/28/02 4:40pm

Subject: Micrsoft Settlement

(corrected date)

Open Letter to DOJ Re: Microsoft Settlement

To: microsoft.atr@usdoj.gov

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 petition@

kegel.com; 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 Windowscompatible 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28322 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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; CoFounder, 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 ecommerce, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, MCNCEnvironmental 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; CoFounder and Chief Technology Officer,

Isomorphic Software

28324 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28326 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 UrbanaChampaign

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, AbrahamsRizzardi, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28328 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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, RushPresbyterian 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; CoOwner, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28330 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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, ECommerce 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 WebDesigner/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

28332 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28334 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, nonprofit 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; CoFounder, 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 UrbanaChampaign

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

28336 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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://infosapient.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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28338 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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; NOCAnalyst, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28340 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 UrbanaChampaign

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28342 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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; StudentComputer 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 JournalConstitution

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)

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 anticompetitive. 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–00028576

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

jford@ncmidwest.com

(888) 969–6699

MTC–00028577

From: TSULLV@aol.com@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

doj.ms@jjgifford.com

January 28, 2002

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530–0001

microsoft, atr@usdoj.gov

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

28344 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

of regulation. Regulation only works when

the conduct prohibitions truly restrain anticompetitive 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 NonMicrosoft 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 Microsoftowned 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 securityrelated 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 noncompliance.

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 noncompliance to the Court, and produce

evidence of it via other means. This may well

happen in the case of massive or severe noncompliance. However, what happens to the

small ISV who suspects Microsoft of noncompliance, 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 computerindustry 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

28346 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 reentered 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 Intelcompatible 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 twoyear 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 anticapitalist 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: noreen.willig@verizon.net@inetgw

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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 MedinaCeli, 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-today 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

28348 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: JLennox@aol.com@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—knutson@hotmail.com@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 antitrust 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: nanandkitty@bigplanet.com@inetgw

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: trasharp@aol.com@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: smodan@msn.com@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: cdydr@aol.com@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: febetz@toad.net@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: robinpur@hotmail.com@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: twotoads@webtv.net@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: eeldon@juno.com@inetgw

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: frankcaicedo@holmail.com@inetgw

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: rogowski@pacifier.com@inetgw

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: dchadwell@executive.com@inetgw

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: jana30@ameritech.net@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: gillesdebordeaux@hotmail.com@

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: wearent@aol.com@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: sbcascade@msn.com@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: monette@freeway.net@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> KMart). 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: monette@freeway.net@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: ahowens@juno.com@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: dcmcder@swbell.net@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: joec504@earthlink.net@inetgw

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: maxrice@charter.net@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: ilsawing@yahoo.com@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: gip4all@aol.com@inetgw

To: Microsoft ATR

Date: 1/28/02 4:36pm

Subject: Microsoft Settlement

28350 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: ERUTHDUBUISSON@prodigy.net@

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: lmiller@dragonbbs.com@inetgw

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: colvinnl@muohio.edu@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: patandal@asapnet.net@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: Matt.Allen@unitedstates.com@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: mrdubridge@hotmail.com@inetgw

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: gelliott@bigskytel.com@inetgw

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: lillian.bensley@hotmail.com@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: ajimenez@milesgr.com@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: jblack000@yahoo.com@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—1@yahoo.com@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: sueamark@msn.com@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—213@hotmail.com@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28351

Microsoft products reguardless of any

government regulations%

MTC–00028623

From: emoss@agloan.com@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: rdo@community.net@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: pss@comcast.net@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: jmurphy@rsmeans.com@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: john@inetplus.net@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: ACrawford@phillynews.com@inetgw

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: lisagludwig@hotmail.com@inetgw

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 hightech 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: melendy@bellsouth.net@inetgw

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: kkidder778@aol.com@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: dp@ontariodesign.com@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: fghill@hotmail.com@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: tefzel@earthlink.net@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: kconover@ilcc.cc.ia.us@inetgw

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 counterproductive to the technology industry and to

the general business climate. It is time to end

this protracted court action.

MTC–00028636

From: PatrickPlock@aol.com@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: ballweber@aol.com@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

28352 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Rober J. Ballweber Jr.

President

MTC–00028638

From: dflex@worldbank.org@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: lscott@dollar.com@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: bryanrogowski@hotmail.com@inetgw

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: maweber@execpc.com@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—ross@yahoo.com@inetgw

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: kcsimon@acm.org@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: clevno@realexcellence.com@inetgw

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: steckd@sandersoncmi.com@inetgw

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: croy0001@umn.edu@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: ohiotax@aol.com@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: jcowsert@hotmail.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: joshthunt@hotmail.com@inetgw

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: ddd153@psu.edu@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: christopher.shaffer@gbbragg.com@

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: smyczpe@auburn.edu@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!

28354 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Bruce C. Nazarian

Common Citizen, and NON-Mircrosoft user

MTC–00028657

From: WALSHARPE7A@aol.com@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: Orrinstromswold@aol.com@inetgw

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 decadelong 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-ofownership 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

Reid@SaleView.Com

925.831.8942 Ext. 11

www.saleview.com & www.contact24.com

Danville, California U.S.A

CC:activism@moraldefense.com@

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:fin@mobilizationoffice.com@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 noncomputer-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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:lizb@sogol.cs.colorado.edu@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

oharris@cwcapital.com

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: astrong@privo.com@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:astrong@privo.com@inetgw

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

pj@cagw.org

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

28356 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: sybill@2fords.net@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 noncommercial 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 opensource 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: u7c28@raytheon.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 davidldlgillispie@

raytheon.com (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: VaughnRho@aol.com@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 codenamed 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 legup 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-andcontrolled 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)

vrhodes@archway.com (work email

address)

28358 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

vaughnrho@aol.com (home email address)

CC:vrhodes@archway.com@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: redebeets@aol.com@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 economicallydraining 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

mjm306@yahoo.com

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: marklavigne@pacificcoastinc.com@

inetgw

To: Microsoft ATR

Date: 1/28/02 4:53pm

Subject: microsoft settlement-influence

peddling

Dear US District judge Colleen KollarKotelly,

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: Akers117@aol.com@inetgw

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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—Akers117@aol.com

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 allimportant 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

fraedeker@alumni.haas.org

MTC–00028682

From: PDonoso@amanet.org@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

dgossett@mayerbrown.com

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

dfalk@mayerbrown.com

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

28360 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

(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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 clearcut 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

28362 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 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 crossplatform 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.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28363

2RPFJ § III(H) contains two subsections (1) and

(2). We distinguish between the two sets of

subsections with the bracketed terms ‘‘first’’ and

‘‘second.’’

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 securityrelated 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 sinceabandoned 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).

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 neverlitigated 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

28364 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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, welldefined, 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 wellestablished 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28365

3See 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).

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.

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.

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

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.

28366 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

5See 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.

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.’’).

7See Chandrasekaran & Mintz, supra, WASH.

POST, May 7, 1999, at A 1; Grimaldi & Greene,

supra, SEATTLE TIMES, Feb. 17, 1999, at A1.

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.

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

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 wellpublicized 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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28367

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.

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.

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.

‘‘[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

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

28368 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 halfcentury, 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,

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28369

10 10 See n.2, supra.

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 securityrelated 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 crossplatform 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 ecommerce—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 enduser 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.

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 windowdressing. 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 hardfought 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

28370 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

11The 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.

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 preinstalling 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. NonMicrosoft 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.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 realworld 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 NonMicrosoft 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]

28372 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

12Similarly, 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.

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 nonMicrosoft 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 endusers 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, lowmargin 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

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 nonMicrosoft middleware from any point unless

Microsoft already has a competing product

that launches from that point. Microsoft can

prohibit OEMs from configuring nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28373

14Moreover, 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.

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.barksdaleattach.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

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,

28374 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28376 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 securityrelated applications are not customerspecific, nor does their disclosure

compromise security. To the contrary, the

most powerful encryption and other securityrelated 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 Microsoftproprietary 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 installationspecific data the disclosure of which would

compromise the security of a particular

installation or group of installations of antipiracy, 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 crossplatform 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 crosslicense 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

CommunicaAs 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

28378 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Intelbased 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 antiexclusivity 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28380 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

1United States v. Microsoft Corp., 253 F.3d 34

(DC Cir. 2001).

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).

3United States v. Microsoft Corp., Revised

Proposed Final Judgment, in the U.S. District Court

for D.C, November 6, 2001.

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.

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.

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

products3) 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28381

4U.S. Department of Justice (November 15, 2001),

Competitive Impact Statement in United States vs.

Microsoft Corp. 5Restrictions 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.

6For 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.

7Franklin Fisher, ‘‘Direct Testimony of Franklin

Fisher’’ in United States v. Microsoft Corp.

8Nicholas Economides (1996), ‘‘The Economics

of Networks.’’ International Journal of Industrial

Organization, 14:2.

9Findings of Fact, ¶ 40 and ¶ 46, 84 F. Supp. 2d

at 20, 22.

it to continue to limit choices for consumers

and stifle innovation.

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.

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.

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.

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.

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.

Empirically, this applications barrier to

entry is dramatic. At its peak in the mid1990s, 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-tohead 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.

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

28382 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

10 Joseph Schumpeter (1942 / 1984), Capitalism,

Socialism and Democracy. Harper Collins, New

York.

11See, 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.

13Timothy 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).

14Bresnahan (2001), p. 5.

15Bresnahan (2001), p. 6.

16Arnold Harberger (1954), ‘‘Monopoly and

Resource Allocation,’’ AEA Papers and Proceedings,

44: 77–87.

17Partha 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.

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

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.

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.

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

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28383

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.

20 253 F.3d at 52, quoting United States v. E.I. du

Pont de Nemours & Co., 351 U.S. 377, 395 (1956).

21 253 F.3d at 56.

22The 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.

23The 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.

24The 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.

25The Court of Appeals overturned the finding

that Microsoft’s deals with Internet Content

Providers were anticompetitive. See 253 F.3d at 71.

26See 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.

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).

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

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

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. u ́ 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.

u ́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. u ́ 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

28384 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

27United States v. Microsoft Corp., Government

Exhibit 20.

28 253 F.3d at 79.

29 253 F.3d at 105, 107.

30CIS, p. 3.

31 253 F.3d at 103, quoting Ford Motor Co. v.

United States, 405 U.S. 562, 577 (1972).

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

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

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.

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

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 lowerpriced 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28385

32CIS, p. 3.

33The 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.

34See, 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,

35Lawrence Lessig (December 12, 2001).

‘‘Testimony before the Senate Committee on the

Judiciary.’’ 36 36 AS defined in Section VI.M.

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.

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.

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.

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.

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 NonMicrosoft 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 NonMicrosoft Middleware36 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 nondiscriminatory 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

28386 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

37As defined in Section VI.N.

38As defined in Section VI.K.

39This provision would allow Microsoft to run

the ‘‘Desktop Cleanup Wizard’’ that removes

unused shortcuts from the desktop in a nondiscriminatory 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.

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.

41These 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.

both competition and innovation may be

impeded.

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.

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

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

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 NonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28387

42For 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.

44Microsoft Press Release (July 11, 2001),

‘‘Microsoft Announces Greater OEM Flexibility for

Windows.’’ 45CIS, p. 25.

46See 253 F.3d at 66.

47The Court of Appeals rejected, per curiam,

Microsoft’s petition for a reheating on this point.

Order (DC Cir. Aug. 2, 2001).

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 nonMicrosoft middleware. 44

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 nonMicrosoft 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.

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

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

28388 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

49Microsoft Press Release, ‘‘Windows XP is

Here!’’ 10/15/01.

50United States v. Microsoft Corp., ‘‘Plaintiff

Litigating States’’ Remedial Proposals,’’ in the U.S.

District Court for D.C, December 7, 2001.

51The 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.

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.

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

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 ecommerce 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

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

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, procompetition 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28389

52 253 F.3d at 103, quoting United States v.

United Shoe Mach. Corp., 391 U.S. 244, 250 (1968). 53Litigating States, pp. 10–11.

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.

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 Suncompatible 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.

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

jes322@columbia.edu

Jason Furman

Yale University

28 Hillhouse Ave. Rm 311

New Haven, CT 06511

203–432–3054

jason.furman@yale.edu

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 GS15, 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-bystate 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.

28390 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

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.’’

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

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.

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. ‘‘ProMicrosoft 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.’’

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28391

3BusinessWeek, May 15, 2000, Carney

4 ‘‘The Microsoft Playbook’’ Common Cause

5San Francisco Chronicle, July 1, 2001,

Wildermuth

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

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.’’

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.)

20. Every year, Microsoft tops itself. The

company’s political giving in the 2000

28392 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

6Common Cause

7 Independent analysis of giving to elective office

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.’’

9BusinessWeek, April 24, 2000, France

10 ibid.

11 ibid.

12USA Today, 5–30–00, Ullman, Drinkard

13Wall Street Journal, Oct. 16, 2000, Wilke

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.

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.

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.)

(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.

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28393

14USA Today, May 30, 2000, Drinkard, Ullman

15BusinessWeek, May 15, 2000, Carney, Borrus,

Greene

16 16 ibid.

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.

34. Significant contributions were also

made in Missouri by Microsoft to help reelect 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.

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.

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.

28394 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

17 17 New York Times, Nov. 2, 2001

18The Kansas City Star, Nov. 8, 2000, Kraske

19Common Cause, ‘‘The Microsoft Playbook’’

20 20 ibid.

21WSJ, Oct. 20, 2000

22Common Cause, ‘‘The Microsoft Playbook’’

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

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.’’

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:

‘‘BOUNTY PAYMENTS are offered for proMicrosoft 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

52. Microsoft was lobbying the Democratic

side as well. Like its team of Republican allstars, 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

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.’’

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28395

23 23 Reuters, Oct. 17, 1999, Lawsky

24 ibid.

25WS J, Oct. 15, 1999

26 ‘‘Microsoft’s All-Out Counterattack.’’ Dan

Carney, with Amy Borrus. BusinessWeek May 15,

2000; ‘‘Microsoft’s Lobbying Largess Pays Off; BackChannel 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

27Los Angeles Times, August 23,2001

28 28 Los Angeles Times, August 23, 2001

29Business Week, May 15, 2000, Borrus, Carney,

Greene

30 ‘‘Trust Us, We’re Experts’’ Sheldon Rampton

and John Stauber, p. 8

31 ibid.

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

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.’’ 24One

congressional GOP staffer went as far as to

say that Microsoft’s lobbying had ‘‘the odor

of obstruction.’’ 25

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.

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

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

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

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

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.

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

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.

28396 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

33Business Week, May 15, 2000, Carney, Borrus,

Greene

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.

35Associated Press, September 18, 1999

36New York Times, Sept. 19, 1999

37New York Times, Sept. 19, 1999

38The Washington Post, Oct. 15, 1999, Morgan,

Eilperin

39 ibid.

40Washington Post, Oct. 24, 1999

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 publicrelations 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.

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

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.

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.

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.’’ 38Among 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.

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

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

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,

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

Rank PAC Sponsor Cash on

Hand

1 .............. Microsoft Corporation.$712,874

2 .............. Southern Bell Telephone & Telegraph Co..617,922

3 .............. Crawford Group /

Enterprise Leasing.

611,442

4 .............. Southwestern Bell

Corporation.

550,841

5 .............. Chrysler / Gulfstream

Aerospace Corp..

481,068

6 .............. Federal Express

Corporation.

424,739

7 .............. NationsBank ............ 413,663

8 .............. First Union Corporation.410,242

9 .............. First Bank System,

Inc..

405,187

10 ............ Stone Container Corporation.368,973

11 ............ General Electric

Company.

359,469

12 ............ National Health Corporation.340,205

13 ............ Exxon Corporation ... 328,559

14 ............ Outback

Steakhouse, Inc..

325,977

15 ............ Columbia / HCA

Healthcare.

284,827

16 ............ American Family

Corporation.

283,963

17 ............ Cooper Industries,

Inc..

281,054

18 ............ Suntrust Banks, Inc. 275,779

19 ............ Winn-Dixie Stores,

Inc..

273,232

20 ............ Jacobs Engineering

Group, Inc..

272,982

21 ............ Ford Motor Company 264,914

22 ............ U.S. West, Inc. ........ 261,289

23 ............ Compass Bancshares, Inc..253,625

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

28398 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28400 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28401

1United States v. Microsoft Corp., Stipulation

and Revised Proposed Final Judgement (November

6, 2001) (hereafter ‘‘PFJ’’).

2United States v. Microsoft Corp., Competitive

Impact Statement (November 15, 2001) (hereafter

‘‘CIS’’).

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)

WTVT-TV (Tampa, Fla.) *

WUSA-TV (Washington, DC) *

* Paid on-air appearanc(s)

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

28402 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

3These comments reflect the views of the authors

and do not represent the views of The Progress &

Freedom Foundation, its officers or board of

directors.

4See Jeffrey A. Eisenach, Thomas M. Lenard and

Stephen McGonegal, The Digital Economy Fact

Book 2001 (Washington: The Progress & Freedom

Foundation, 2001).

5See 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

6United States v. Microsoft Corp., Plaintiff

Litigating States’’ Remedial Proposals, (December 7,

2001) (hereafter ‘‘LS Proposal’’).

7 15 USCS 16 (b-h).

8CIS at 2.

9 9 CIS at 63.

10United 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’’).

11United States v. Microsoft Corp., 253 F 3d, at

6 (DC Circ. 2001).

12

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.

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 nonprofit 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 hightech markets in general, and the Microsoft

case in particular. They are co-authors of the

annual Digital Economy Fact Book,4 coeditors of Competition, Innovation and the

Microsoft Monopoly: Antitrust in the Digital

Marketplace and authors of numerous other

papers on these and related topics.5

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.

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.

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.

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.

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:

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).

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28403

13 253 F 3d at 99–100, quoting (United States v.

United Shoe Mach. Corp), 391 U.S. 244, 250 (1968).

14CIS at 3.

15To 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. 16CIS at 3–4.

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 crossplatform 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 operatingsystem-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 illgotten gains), and the future (preventing

similar conduct going forward).

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.

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.

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.

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 nonMicrosoft 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

28404 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

17CIS, 17–60.

18CIS at 24.

19CIS at 61.

20CIS at 63.

21United 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.

22AT&T CIS at 7173–7180.

23 23 AT&T CIS at 7178.

24AT&T CIS at 7178.

24AT&T CIS at 7179.

24AT&T CIS at 7179.

24AT&T CIS at 7179.

24AT&T CIS at 7179.

24AT&T CIS at 7179.

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 plainlanguage 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.’’

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.)

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.’’

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.

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:

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

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

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28405

30 30 AT&T CIS at 7181.

31AT&T CIS at 7181.

32 32 See E.O. 12291 (February 17, 1981) and E.O.

12866 (September 30, 1993).

33Office 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).

34Office 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)

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)

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.

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.

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.’’

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 NonMicrosoft 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

28406 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

36 253 F 3d at 103, quoting United States v. E.I.

du Pont de Nemours & Co., 366 U.S. 316, 331

(1961).

37United 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

example, preventing Microsoft from

restricting the ability of its OEM licensees

from ‘‘[l]aunching automatically ...any NonMicrosoft 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 NonMicrosoft 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 nonMicrosoft 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 procompetitive 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.

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

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.

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28407

41 41 Final Judgement at 2.

42Timonthy F. Bresnahan, ‘‘The Right Remedy,’’

at 1, (available at www.stanford.edu/tbres/

microsoft/The Right Remedy.pdf).

43Plantiffs’’ 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.

44United States v. Microsoft Corp., 147 F 3d 935

(DCCirc. 1998) Romer Declaration # 4, (hereafter

Romer).

45 45 Romer at 13.

46See 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.

47Remedies Brief of Amici Curiae Robert E. Litan

et al., 2000.

48Thomas 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.

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 enduser oriented internet markets is most

unwise.’’ 42

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.

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.

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.

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 ‘‘neweconomy’’ 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’’

28408 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

49 49 253 F 3d at 103.

companies, however, there is very little

physical capital to be divided up.

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.

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:

u` 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 nonMicrosoft 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.

u` 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.

u` 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.

u`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

u` 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 CarnegieMellon 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 lowcost 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, welldocumented 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-increasingwhims 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

28410 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 economicallydraining 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 thirdparty 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 nkohl

@mail.acponline.org 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)

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28412 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 worldchanging 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, longlasting 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28413

*U.S. PATENT AND TRADEMARK OFFICE (USPTO) LIST OF TOP 10 PATENT RECIPIENTS

Preliminary

Rank In 2001

Preliminary #

of Patents in

2001

Organization Final Rank

in 2000

Final Number of Patents in 2000

1 .................... 3,411 International Business Machines (IBM) .................................................................... 1 2,886

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 Co., Ltd. .................................................................. 11 1,137

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

28414 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 anticompetitive. 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 semihierarchical, 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 antitrust 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 prebuilt 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 ‘‘overcharged’’ 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

28416 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

applications. One entity for the development

tools and libraries. And finally, one for enduser 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: cplp31@yahoo.com@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: reg@elvis.com@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: marske@ec.rr.com@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: marske@ec.rr.com@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: bobguth@fidnet.com@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: spirit@hevanet.com@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: 78455@attbi.com@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: HatfieldCC@aol.com@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: jreece@northstate.net@inetgw

To: Microsoft ATR

Date: 1/28/02 4:57pm

Subject: Microsoft Settlement

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: noone@nowhere.com@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: ess777@aol.com@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: bobguth@fidnet.com@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: mikeoc@digitalexp.com@inetgw

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: guilmette@yahoo.com@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: gdfox@foxinternet.com@inetgw

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: monkeyjr@purdue.edu@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: baan@starpower.net@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: cbearden@mail.state.mo.us@inetgw

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—Langford@huntsman.com@

inetgw

To: Microsoft ATR

Date: 1/28/02 4:57pm

28418 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: LLiebeler@aol.com@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

publicpolicy@comptia.org

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).

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28419

1 Id. at 87.

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 nonMicrosoft 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.

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 nonMicrosoft 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

28420 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonsettling 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 farreaching 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.

28422 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: retredmed@cchat.com@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: bruce.granger@verizon.com@inetgw

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, welldocumented 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-increasingwhims 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:jdkirby@bluebunny.com http://

bluebunny.com

MTC–00028731

From: adam@tameware.com@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

adam@tameware.com 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

28424 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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 antitrust 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: bfindley@brigham.net@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:retredmed@cchat.com@inetgw

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 threeyear 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

28426 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: LM14056@aol.com@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 gvicinanza@omm.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: BANKSMKT@aol.com@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

Steph@StephanieSailor.com

http://www.StephanieSailor.com

CC:msfin@microsoft.com@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

Scblack@microsoft.com

<mailto:Scblack@microsoft.com>

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.

28428 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 preinstalled 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 preinstallied 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 nonMicrosoft 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

28430 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 BMSLIB@MIT.EDU

Fax: 781–662–6882 WWW: http://

Cybertrails.org

MTC–00028764

From: koufos@pacbell.net@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: welter@lanset.com@inetgw

To: Microsoft ATR

Date: 1/28/02 5:26pm

Subject: Microsoft action

To: DOJ <microsoft.atr@usdoj.gov>

From: Lee Welter <welter@computer.org>

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: RGP9134@aol.com@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:fin@mobilizationoffice.com@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’’

28432 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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)

bill.foerster@fbillc.com

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: Carola291@aol.com@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: DSchen2835@aol.com@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: WWPEARL@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:fin@mobilizationoffice.com@inetgw

MTC–00028780

From: Trstuelp@aol.com@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

Stuelp@AOL.com

(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

28434 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:fin@mobilizationoffice.com@inetgw

MTC–00028788

From: pour@mieterra.com@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 evergrowing 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 UNIXbased 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 abovereferenced 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28435

1See Robert X. Cringely, He’s Not in It for the

Profit (Dec. 6, 2001, PBS Presents).

2See 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).

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]

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?

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

28436 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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’’

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28437

4See Proposal, Section III.I (last paragraph) and

Section VIII.

5See Proposal, Section V.A.

6See Proposal, Section V.B.

7See Proposal, Section IV.D.

8See Proposal, Section W.D(3).

9See Proposal, Section W.D(4).

10See Proposal, Section IV.D(4)(d).

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.

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.

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

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.

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

28438 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

11See Proposal, Section VI.U.

12See Proposal, Section VI.K.

13See Proposal, Section VI.B.

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 addon, 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.

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-moreexpensive but in many cases much-lessdesirable 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

28440 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 antitrust 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: sharonhr@yahoo.com@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 economicallydraining 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: moore@cs.utk.edu@inetgw

To: Microsoft ATR

Date: 1/28/02 5:41pm

Subject: Microsoft Settlement

CC: moore@cs.utk.edu@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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

28442 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

twolf@ascendpr.com

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

bseguin@reidmidd.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: fin@mobilizationoffice.com@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

BMSLIB@MITVMA.MIT.EDU

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

<<USAGSharp—Michael—1028—

0124.doc>>

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

28444 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

MTC–00028803_0002

MTC–00028804

From: BRice10273@aol.com@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

bhumke@ksni.net

MTC–00028808

From: Ann smith

To: Microsoft ATR

Date: 1/28/02 5:49pm

Subject: Fw: microsoft settlement

————- Forwarded message —————

From: Ann smith <panna3@juno.com>

To: microsoft.atr@usdoj.gov

Cc: u.s.atty.generaljohnashcroft@usdoj.gov

Date: Mon, 28 Jan 2002 16:29:19 -0500

Subject: microsoft settlement

Message-ID: <20020128.162921.-

217919.0.panna3@juno.com> 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:microsoft.atr@usdoj.gov/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

smithrr@smith-krenning.com

CC:gephardt@mail.house.gov@inetgw

MTC–00028810

From: madak@hotmail.com@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: microsoft.atr@usdoj.gov

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: mitch@wt6.usdoj.gov@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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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<ve article of

faith that simply does not apply in this

particular case where what the challengers

are in effect demanding is to cripple

Microsoft’s ability to innovate in order that

they, the challengers, can gain

entrepreneurial advantage. They are

opposing rather than advocating a level

playing field. While I am fully convinced

that, in general, greater competition is by far

the lesser of two evils, there are clear

exceptions and this is one of them. The

average individual and corporate user does

not want to have to deal with multiple

incompatible operating systems and wishes

to have basic applications integrated as fully

as possible with that operating system. Nor

do most of the application developers want

to have to deal with the increased costs and

complexities introduced by a multiple

operating system environment. There is

nothing now that prevents a truly innovative

developer from designing and marketing an

alternative operating system and supporting

applications. However, in order for to be

successful in the market place the design

must be one that will make switching by the

consumer cost effective. For that to happen

the alternative offered will have to stand out

head and shoulders above Microsoft’s

product so that the considerable costs of the

conversion will be justified. So far the

alternatives offered have had only modest

advantages coupled with distinct

disadvantages. This is likely to continue to be

the case as long as Microsoft continues to

advance at the same rapid pace the

technological and functional character of its

product. Unable to outrun Microsoft, its

would-be competitors seek to hamstring

Microsoft in ways that will slow its progress

to where it can be overtaken. Microsoft has

provided in its operating system a

continually evolving, backward compatible,

software standard that has been a crucial

factor in facilitating the adoption by both

businesses and individuals of computing that

permits near universal and highly efficient

interaction among all participants at steadily

reducing costs in user time and money.

I began my career in 1955 as a programmer

on the very first of the large electronic

computers introduced by IBM. I have worked

with computers in one capacity or another

(as an analyst, manager, and corporate

executive) ever since in the areas of both

national defense systems in support of the

Air Force and other Department of Defense

agencies and in health systems in support of

the Centers for Disease Control, the National

Institutes of Health, and other health

agencies. As a retired professional I work

with five desktop computers in my home.

What I and many others, whether

independent or corporate users, want in our

computers is commonality of software among

our own computers and those with whom we

correspond electronically. We greatly prefer

integrated systems from a single source that

keeps to a minimum the investment of our

time in resolving conflicts between operating

systems and applications. Microsoft through

constant innovation has done a superb job of

meeting that need. It is obviously not perfect

but it demonstrated a wiliness to respond to

the needs of its users.

The innovative pace that Microsoft has

maintained in the incredibly rapidly evolving

technological environment could be achieved

by another organization only if that

organization could displace Microsoft and

then become as dominant as Microsoft is

now. That dominance is essential if the

ordinary user and the average business user

are not to be subject to great losses in

productivity and efficiency in dealing with

multiple operating systems none of which

achieves dominance. And even if in time

another organization was eventually to

succeed in achieving a dominant position,

the transition burden and costs, both real and

opportunity costs, to users would be

enormous.

The loss of compatibility between

computer systems, the heart of which is the

operating system, is devastating for the small

operator and can be incredibly expensive for

the average large corporate operator. The idea

that seriously shackling Microsoft is going to

make things easier and less costly for the

consumer is na<ve in the extreme. It will

inevitably do the opposite. There are

enormous opportunities for innovative

software designers to develop programs that

work within the dominant Microsoft

operating system as is well demonstrated by

the proliferation of such ad hoc software. The

very fact that the Microsoft operating system

is dominant greatly facilitates continuation of

such proliferation.

The Department of Justice needs to

continue to keep clearly in focus what is in

the best short and long term interests of the

consumer rather than what will promote the

private agendas of the industry warlords,

present or aspiring, in their relentless search

for greater power and fortune.

Let stand the revised proposed Final

Judgment. Terminate these endless

challenges, promptly implement the

remedies, let the developers and

entrepreneurs move on with their evolution

of better and better systems within the

Microsoft environment, and let us users

continue to move ahead with confidence in

the continued forward and backward

compatibility of what we produce within the

present and future computing environment.

Very much needed as a follow-up, is a

thorough reassessment of the antitrust laws

in the light of the present very different and

rapidly evolving technological environment,

the critically related pace of innovation, and

the character of the related industries and its

users

Harry Emlet

3302 Clearwood Court

Falls Church, VA 22042

righhtnow@msn.com

MTC–00028814

From: Ronnie n/a

To: Microsoft ATR

Date: 1/28/02 5:54pm

Subject: microsoft settlement

This letter boasts my personal opinion in

every way and I appreciate microsoft for

having contacted me with this letter.

5000 SE 83rd Place

Oklahoma City, OK 73135

January25,2002

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 lawsuit

has gone on too long and has been a waste

of taxpayer dollars. Our government should

stay clear of free enterprise and allow

companies like Microsoft to innovate.

The terms of the settlement violate

Microsoft’s intellectual property rights, as

they will be forced to disclose interfaces that

are internal to Windows operating system

products. They also have to grant computer

makes broad new rights to configure

Windows so that competitors can more easily

promote their own products. Microsoft

spends vast resources developing their

products and services and competitors

should not be rewarded for being second

place.

I urge your office to uphold American

principles and finalize the settlement

because that is in the best interests of the

28446 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

American public. It might be flawed, but

further litigation would be far worse. I hope

you take the right direction and side with

American people.

Sincerely,

cc: Senator Don Nickles

Ronnie Higgins

MTC–00028815

From: Gunnar G Pedersen

To: Microsoft ATR

Date: 1/28/02 5:54pm

Subject: Microsoft Settlement

As it has been pointed out by senior

citizens groups, the Microsoft settlement

seems to be a fair and equitable action and

should not be allowed to drag on any longer.

I wish to add my voice to this cause. Gunnar

Pedersen, Clifton Park, NY

MTC–00028817

From: GGillette@aol.com@inetgw

To: Microsoft ATR

Date: 1/28/02 5:55pm

Subject: Letter to Hon. Colleen Kollar-Kotelly

Please see attached.

Thanks,

Graham Gillette

515–244–1900

GILLETTE

STRATEGIC

RESOURCES

Wednesday, January 23, 2002

Hon. Colleen Kollar-Kotelly

U.S. District Court, District of Columbia

c/o Renata B. Hesse

U.S. Department of Justice, Antitrust Division

601 D Street NW, Suite 1200

Washington, DC 20530–0001

Dear Judge Kollar-Kotelly:

The proposed settlement between the

Department of Justice and Microsoft in U.S.

v. Microsoft is not good enough.

I am a member of the Des Moines School

Board, a small businessman and a political

activist. In each of these roles, I am

concerned about protecting competition in

the marketplace. This agreement does not

adequately protect the free market and

innovation, and does not go far enough to

address consumer choice.

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.

Enforcing federal antitrust laws against

monopolies is not new or novel. Antitrust

law has protected free markets and enhanced

consumer welfare in this country for more

than a century. The Microsoft case does not

represent a novel application of the law, but

is the kind of standard antitrust enforcement

action necessary to insure vigorous

competition in all sectors of today’s

economy.

The 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.

Thank you for your time.

President

CC: Iowa Attorney General Tom Miller

505 Fifth Avenue, Suite 920 ?Des Moines,

Iowa 50309 * (515) 244–1900 * (515)

2444425 Fax www.gillettestrategies.com .info

@gillettestrategies.com

MTC–00028818

From: Neele Johnston

To: Microsoft ATR

Date: 1/28/02 5:57pm

Subject: Re: U.S. v. Microsoft: Settlement

Information

Date: January 28, 2002

From: Neele T. Johnston, President

Intelligenesis, Inc.

25 Froude Circle

Cabin John, MD 20818

(301) 263–0248

email: NeeleJohnston@usa.net

To: Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW

Suite 1200

Washington, DC 20530–0001

email: microsoft.atr@usdoj.gov

Subject: Microsoft Settlement

To whom it may concern,

I am writing to encourage you, in the

strongest terms, to reject the settlement of

United States v. Microsoft, that has been

proposed by the Department of Justice and

Microsoft Corporation. The proposed

settlement is not in the public interest and

will only serve to give Microsoft Corporation

the green light to inflict further harm on

consumers, businesses, and the competitive

landscape of the Information Technology

industry.

Now is the time for our federal government

to step up it’s efforts to rein in Microsoft and

control it’s abusive practices. Having rightly

found Microsoft guilty of illegally extending

their monopoly in personal computer

operating systems to other areas of the

software industry, the judicial system has an

obligation to impose a penalty on Microsoft

that is commensurate with the harm they

have caused and that will serve to partially

restore competition where the defendant’s

predatory business practices have destroyed

it. This is not the time to go easy on them.

This is not the time to tire of the fight for

increased competition in the software

industry.

In spite of what the government and

Microsoft now contend, resolution of this

case has nothing whatsoever to do with

patriotism, ‘‘freedom to innovate,’’ or

maintaining America’s leadership in a

flagship industry. On the contrary, leaving

Microsoft intact and unshackled will leave a

very serious threat to our national security

unresolved. The proposed settlement does far

too little to restore competition in the key

areas of the software industry where

Microsoft has eliminated it. In particular, the

settlement seems to validate Microsoft’s

present monopoly in personal computer

operating systems. It is this monopoly, which

Microsoft maintains by anti-competitive

business practices, which has severely

compromised the security of the nation’s

computing infrastructure, which is the very

foundation of modern commerce.

Some argue that the personal computer

operating system is an example of a ‘‘natural’’

monopoly and that the software industry

benefits from Microsoft’s role in setting defacto standards. First of all, this argument

ignores the observation that the Internet,

which throughout most of its formative phase

grew up outside Microsoft’s sphere of

influence and in spite of Microsoft’s

determined attempts to undermine it, has

been the single greatest source of innovation

in technology for a generation. Some might

say the only source. More importantly, the

argument ignores the significant national

security and business risks that we are now

subjected to as a result of Microsoft’s

monopoly in operating systems that are used

in defense, government and business.

Operating systems are the most critical piece

of infrastructure which either keep

commercial transactions and command and

control functions safe and secure, or leave

them vulnerable to malicious disruption,

theft, and falsification. These vulnerabilities

become increasingly clear with each passing

week; one need only make a cursory

examination of IT industry news to be keenly

aware of the risks and costs associated with

them.

If we are inclined to be kind to Microsoft

we could argue that the risks are inherent in

a monopolized market segment, due to the

issue of homogeneity. The differences that

exist in naturally varying systems mean that

only a minority of the population tends to be

susceptible to any particular threat. This is

borne out by observing the Apple Macintosh

community, which is less than five percent

of the personal computer population and

enjoys essentially all the same capabilities as

Microsoft Windows users. While the ninetyfive percent of personal computer users with

Microsoft Windows have been subjected to

over a dozen well-publicized attacks in the

form of Internet email worms, Macintosh

users (as well as Linux users, who make up

an even smaller percentage), have been

invulnerable to virtually all these attacks.

This proves, on the face of it, that no one

besides Microsoft benefits from Microsoft’s

monopoly.

Furthermore, if we are inclined to be more

realistic and less kind to Microsoft, it is easy

to establish that Microsoft’s chronic lack of

emphasis on quality, reliability or security in

the Windows operating system has greatly

exacerbated the vulnerability that we are now

faced with. Microsoft has now, belatedly,

admitted this is an issue and pledged to make

security their main focus in the future. This

is just marketing hype designed to distract us

from the magnitude of the risk we are living

under. Only the advent of true competition

in the operating systems market segment will

ever cure this vulnerability.

Microsoft’s performance in reference to the

Y2K bug proved that they cannot be trusted

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28447

to act in the best interests of their customers.

Throughout the course of this trial many of

Microsoft’s defenders have argued that

consumers were never harmed in the browser

war. This is patently false. Microsoft openly

and publicly committed all of their attention

and resources to defeating Netscape and

embracing (belatedly) the Internet. One need

only note the timing of these events to realize

that Microsoft was busy fighting the browser

war at the precise time that their customers

were demanding Y2K fixes, and not getting

them. This lack of responsiveness to

customer requirements cost American

businesses and consumers many billions of

dollars, if not more.

During the time of the browser war, I was

a director of Information Technology at

Fannie Mae, a Fortune 50 company with an

IT budget well over $50 million. I had firsthand knowledge of what Y2K abatement cost

my company and it was clear that a

considerable portion of it, easily several

million dollars, was due solely to Microsoft’s

tardiness in addressing the Y2K issues in

their software, many of which were not

solved until well past the eleventh hour, well

after the date we had targeted to be fully

compliant. I am sure that nearly every other

American business faced similar issues and

the resulting, unnecessary costs they bore are

truly staggering. Anyone who believes this

was inevitable or even excusable need only

note the fact that the Apple Macintosh

operating system was never susceptible to

any of the Y2K problems that businesses

waited until after the eleventh hour for

solutions for from Microsoft. Could this

possibly be because Apple has never had the

luxury of a monopoly position for its

products, but has had to compete on their

merits? Had Microsoft targeted reliability and

quality as major product goals and had they

made a reasonable effort at Y2K abatement at

the time they began the browser war, I firmly

believe (based on first-hand experience in my

company) that the price tag that consumers

and businesses would have paid for Y2K

compliance would have been 30% to 50%

less than it was.

I have over twenty years of professional

experience in systems integration and IT

management. I have carefully observed

Microsoft’s rise from the start. My seven

years at Fannie Mae convinced me that

Microsoft’s heavy-handed control over my

industry is very harmful to corporate IT and

to the industry in general. I could go on for

many pages to explain to you, with hard

evidence, why this is so. However, I believe

that has already been established in court.

What this industry desperately needs is

competition in the segments Microsoft

controls, such as desktop operating systems.

Any settlement of this case must not only

be fair to Microsoft and to the industry they

have harmed, it must be seen to be fair by

the public and must be seen as a punishment,

if a light one, for the misdeeds that have

already been established. This proposed

settlement is widely viewed as a stunning

victory for Microsoft, witness the majority of

reports in the press over the past two months,

and that alone is reason enough not to

proceed with it. It is not a punishment. It

neither guarantees competition nor

significantly penalizes Microsoft. The current

environment in which Microsoft is seen by

most as getting away with murder as a result

of their own might and cleverness, and often

being lionized for it, is not healthy for the

Judicial System or for America, to say

nothing of industry.

Microsoft claims that they have a right to

compete as vigorously as possible and that

they are simply better at it than other

companies. However, Microsoft has no

awareness of what honorable or gentlemanly

competition is all about. In most arenas we

do not allow competitors to openly cheat,

especially if they are prodigious and

unrepentant about it. If we will not allow

such behavior in the Olympics, how can we

feel comfortable allowing it to continue in

Information Technology? The winner must

bear a special burden of scrutiny. In addition

to numerous abuses that they have not yet

been tried for, or are perhaps not technically

criminal, Microsoft has been tried and found

guilty, upheld on appeal, of severe criminal

misconduct. Over the course of this trial,

their entire executive staff engaged in

numerous, obvious acts of perjury,

demonstrating that it is their usual way of

doing business. No one seriously believes

that they can be trusted to honor the terms

of a consent decree.

Given the remarkably high profile of the

company, the citizens of this country cannot

allow this state of affairs to continue. I want

to urge my government, in the strongest

terms, to withdraw it’s support for the

settlement that is on the table. It does not go

nearly far enough to serve the public’s

interests. It is riddled with loopholes, which

Microsoft has proven for nearly a decade that

they will exploit to the fullest. It sends the

wrong messages to the public, to Microsoft,

and to whatever would-be innovators may be

thinking of trying to compete against

Microsoft. It sends a signal to terrorists that

we are sanguine about the fact that they have

only a single target to concentrate on to take

out the infrastructure of America’s economy.

It gives Microsoft the government’s implicit

blessing in their continued effort to

undermine the free software and open source

movements, which represent the only real

hope for competition in operating systems

and infrastructure technologies.

Please give some consideration to adopting

the proposal of remedies put forth by the

nine dissenting states. Their proposal, while

still inadequate to fully address the threat, is

at least a significant improvement over the

settlement proposed by the Justice

Department.

Yours very truly,

Neele T. Johnston

Intelligenesis, Inc.

25 Froude Circle

Cabin John, MD 20818

301–263–0248

neelejohnston@usa.net

MTC–00028819

From: Smith, Bob

To: ‘‘microsoft.atr(a)usdoj.gov’’

Date: 1/28/02 5:57pm

Subject: Microsoft

Please see the attached message concerning

the litigation against Microsoft.

Robert R. Smith

MPIC-MGTS

(314) 827–3584

Robert. Smith@Maritz.com

MTC–00028819 0001

Robert R. Smith

Smith-Krenning Enterprises, LLC

10784 Stroup Road

Festus, MO 63028

January 28, 2002

Department of Justice

Attorney General John Ashcroft

950 Pennsylvania Avenue, NW

Washington, DC 20530–0001

Dear Mr. Ashcroft,

While I believe that the recently negotiated

settlement between Microsoft and the

Department of Justice has gone too far, I also

think that this suit is better settled. It is

important for the IT community to move

forward again. It is equally important for the

IT community to trust that the government

would allow the owners their right to enjoy

the benefits that our wonderful country was

built on, allowing each of us to exercise our

skills and make money.

However, some of the terms of the

settlement are a bit troublesome. Microsoft

should not be forced to release some of its

source code to third-party software

developers. Doing so is no guarantee that this

source code will not be used to develop some

sort of Windows-type clone. My company

writes applications that work on the

Microsoft Windows platform, and we do so

without any code from Microsoft that isn’t

already published. I don’t need Microsoft’s

insight to their operating systems any more

than the next developer. If we start

demanding code from Microsoft, then

Microsoft should be able to demand code

from us, and I’m not willing to share mine

either.

While innovation is the hallmark of the IT

community, simply cloning software that

does not carry with it the full expertise that

the original software has is dangerous. There

are issues like product confusion, reliability

and support that may end up causing more

confusion in the consumer’s mind than did

this lawsuit.

The very least that can be said, however,

is that the litigation is apparently over, and

this is a good thing. I am hoping that there

will be no further federal action against

Microsoft or any other IT company.

Sincerely,

cc: Representative Richard A. Gephardt

Robert Smith

Co-Owner

MTC–00028820

From: cparrish1

To: Microsoft ATR

Date: 1/28/02 5:59pm

Subject: microsoft settlement

I strongly believe you should back off and

let entrepreneurship alone.

Sincerely,

Charles M. Parrish

MTC–00028821

From: Fil Alleva

To: Microsoft ATR

Date: 1/28/02 5:59pm

Subject: Microsoft Settlement

28448 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

MTC–00028821—0001

??e:///c√/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 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. 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: Walden3ALR@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, mcquaid@u.arizona.edu

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: <mailto:tommy@sportwave.com>

tommy@sportwave.com

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: LRogers67@aol.com@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:fin@mobilizationoffice.com@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

kwwhite@erols.com

CC:kwwhite@erols.com@inetgw

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 anticompetitive 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

Leonard@tmgcorp.net

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

28450 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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/> 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: info@moraldefense.com

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 governmentsanctioned 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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-forvalue 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

28452 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 fallacyridden arguments, and his illogical

conclusions: a hatred for any form of selfinterest.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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,info@effwa.org@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

28454 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 lisa

@kianoff.com 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: Iisa@kianoff.com

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: lisa@kianoff.com

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 footdragging 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Cbethre@ao1.com@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: microsoft.atr@usdoj.gov

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: Jmcjimmy@aol.com@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

<A HREF=‘‘http://youens.com/mccoy/

’’>http://youens.com/mccoy/</A>

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: Joangeri@aol.com@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: Bpcgraphics@aol.com@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 heavyhanded 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:microsoftcomments@doj.ca.gov@

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

28456 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

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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

28458 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

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,

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

bumbaugh@webster.edu/bumbaugh@

well.com

CC:bumbaugh@webster.edu@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,

28460 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

William McKenna

407 West 18th #207

Austin, TX 78701

512.478.9617

MTC–00028856

From: Satish—Channa@notes.amdahl.com@

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: YARCOBR64@aol.com@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: JenDuck@aol.com@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

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 waszewski

MTC–00028863

From: mitchellrodney@hotmail.com@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 <attorney.general

@po.state.ct.us>

To: Kirby Thornton <rocket@cpcug.org>

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’’ <tbranam@firstworld.net>

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: roger.sherron@gluonnetworks.com

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—mcqueen@apl.com@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

28462 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 stateof-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—mcqueen@apl.com

wmcqueen@netzero.net

CC:wmcqueen@netzero.net@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 schmar@consolidatedsupply.com

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: JOsbo27609@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 overvalued 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: microsoft.atr@usdoj.gov

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

28464 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

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 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

ttisch@mindspring.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Blblikken@aol.com@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: jrs@gte.net@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

<http://xerxes.frit.utexas.edu>

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:dirck@trac.org

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

28466 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonremovable 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 anticompetitive 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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 courtappointed 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 courtappointed 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 noncompliance 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 megacorporation, 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 <insert any company> 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

28468 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

ray@xmission.com

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Steinsaz@aol.com@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—Stewart@berlex.com@

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

28470 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 micropayment 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 multistep 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 bailouts 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)

mark@webcounsel.com

http://www.webcounsel.com

Our latest site http://www.gibbonslaw.com

28472 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

rclay773281@msn.com

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,

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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.

28474 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: KFred87529@aol.com@inetgw

To: Microsoft ATR

Date: 1/28/02 6:56pm

Subject: Microsoft Settlement

I urge you to accept this settlement.

MTC–00028911

From: thowe@mmcable.com@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 economicallydraining 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: Jmcjimmy@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, dennispowell@

earthlink.net@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 preinstalled 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 preinstallied 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 nonMicrosoft 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

28476 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: mbreivik@att.net@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 computermanufacturing 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: Spacey@attbi.com@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: Mumsy37@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 governmentmandated 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.

28478 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

ruthweeb@msn.com

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: ALINEAZ@aol.com@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: RRingg2161@aol.com@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 selfinterest 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 startup 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 microsoft.atr@usdoj.gov 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

maynard@flippindensmore.com

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 habas@columbiapc.com

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.

28480 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

bigcatman@mindspring.com

MTC–00028947

From: deanwal@bellsouth.net@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: brian215@netscape.net@inetgw

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, middleware, 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 anticompetitive. 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: Campbellcou@aol.com@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:microsoftcomments@doj.ca.gov

@inetgw,dkleinkn@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

28482 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Angnemesis@aol.com@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:raj6953@hotmail.com@inetgw

MTC–00028956

From: khudson@mail3.centurytel.net@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:klhudson@bigfoot.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 governmentgranted 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-ofthe-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

ray@xmission.com

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

<ray@xmission.xmission.com>

To: microsoft.atr@usdoj.gov

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

28484 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 megacorporation, 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

<insert any company> 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

ray@xmission.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: PolPrncsVel@aol.com@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: brian215@netscape.net@inetgw

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.

28486 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: maxineatrobydr@aol.com@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 economicallydraining 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:senator@thurmond.senate.gov@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: Feathersandink@aol.com@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:Feathersandink@aol.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28488 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

cphaven@earthlink.net

MTC–00028989

From: Garthbob@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, 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,

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:fin@mobilizationoffice.com@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

28490 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28491

to the necessary intellectual property on nondiscriminatory 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:senator@craig.senate.gov@inetgw

MTC–00028997

From: Sightsaver@aol.com@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:activism@moraldefense.com@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 wellVerDate 11<MAY>2000 05:00 Apr 28, 2002 Jkt 189961 PO 00000 Frm 00369 Fmt 4701 Sfmt 4703 E:\FR\OC\A75AD3.010 pfrm01 PsN: ADVBOOK9
28492 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: themerryheart@attbi.com

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28494 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 politicallymotivated 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

attybrown@missourilaw.net

P. O. Box 358

Arnold, MO 63010

636–296–8260

FAX 636–296–0925

MTC–00029023

From: yurczyks@aol.com@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:

28496 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Please put a stop to the economicallydraining 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: SBaldlyn@aol.com@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: DiMaioWood@aol.com@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: dcfisherod@hotmail.com@inetgw

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 economicallydraining 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: jws1mcp@juno.com@inetgw

To: Microsoft ATR

Date: 1/28/02 8:06pm

Subject: Microsoft Settlement

Why does a Microsoft Certified

Professional oppose the proposed MicrosoftDOJ 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)

jws1mcp@juno.com

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28498 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Internetbased 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 anticompetitive 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: <mailto:Microsoft.atr@

usdoj.gov> microsoft.atr@usdoj.gov

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 selfregulation. 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 standalone, 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: bjohnson11@austin.rr.com@inetgw

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 nonMicrosoft 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 anticompetitive practices, the PFS must

explicitly grant not-for-profits equal remedy

and protection.

Regards,

Robert Johnson

RJohnson@webside.com

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

28500 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: CAHT99@aol.com@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 longtime 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 evernewer and better products that appeal to

many people (though not especially to me).

James H. Broussard, Chairman

Citizens Against Higher Taxes

MTC–00029043

From: FrancisAClark@aol.com@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nondisclosure 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 comarketing 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 preempt 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

wombat@sgi.com

MTC–00029045

From: cubsandy2@juno.com@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 anticompetitive 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......

28502 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 WealthCreation 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Hisflyingtune@hotmail.com@inetgw

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 economicallydraining 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

P≤Albert 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

28504 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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, PCMac 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:nick@cs.Stanford.EDU@inetgw

MTC–00029066

From: BLUSTM@aol.com@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:fin@mobilizationoffice.com@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

angstboy@grandecom.net

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: Tmjmslaw@aol.com@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.

28506 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:fin@mobilizationoffice.com@

inetgw

MTC–00029071

From: karen.pd@home.com@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 economicallydraining 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 threeyear-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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: DFisc@aol.com@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 nonhostile 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

28508 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Windowscompatible 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: Mfcnice@cs.com@inetgw

To: Microsoft ATR

Date: 1/28/02 8:35pm

Subject: Microsoft Settlement

Please settle Microsoft suit.

Robert A Childs at mfcnice@cs.com

CC:fin@mobilizationoffice.com@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 selfdetermination 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 Microsoft, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: ebryan@lumenet.com@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 inhouse 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.

28510 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: macunochi@yahoo.com

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: gerry162002@yahoo.com@inetgw

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:

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:senator@

thurmond.senate.gov@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 interoperable 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: austin@coremetrics.com

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

28512 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 anticompetitive 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.

28514 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:President@whitehouse.gov@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: GildaOMoore@aol.com@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

28516 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

saraconrd@pcisys.net

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: bjidzik@wt6.usdoj.gov@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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.

28518 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonvoting, 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: dmose2@netscape.net@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28520 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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

lr@socrates.berkeley.edu

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:fin@mobilizationoffice.com@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: MarieHolla@aol.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:fin@mobilizationoffice.com@inetgw

MTC–00029157

From: JFedor3703@aol.com@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 nonMicrosoft 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:fin@mobilizationoffice.com@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

jr7138@swbell.net

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: BARGONN@aol.com@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.

28522 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: TomasHol@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:fin@mobilizationoffice.com@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: TranD97@aol.com@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

goja@ultranet.com

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

(4donohoes@attbi.com)

CC:4donohoes@attbi.hp.com@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.

28524 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

1United States v. Microsoft Corp., 253 F.3d 34,

46 (DC Cir. 2001) (‘‘Microsoft III’’).

2United 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).

3See Findings of Fact, 84F. Supp. 2d. at §§ 39–

40.

4See Microsoft III, 253 F.3d at 55–60, 60–61, 70–

71; findings of fact, 84 F. Supp. 2d at §§ 36–52,

143–144.

5See Microsft III, 253 F.3d at 61, 72, 75–76;

Findings of Facts, 84F. supp. 2d at §§ 357, 395–402.

Sincerely,

Sandra J. Bottorff

MTC–00029174

From: Dave Garman

To: Microsoft ATR

Date: 1/28/02 9:26pm

Subject: microsoft settlement

Judge Kollar-KotallyI 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 webbased 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.

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.

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.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28525

6 6 Microsoft III, 253 F.3d at 103.

7See 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’’).

8Findings of Fact, 84 F. Supp. 2d at § 54 (stating

that ‘‘[w]ithout significant exception, all OEMs preinstall Windows on the vast majority of PCs that

they sell, and they uniformly are of a mind.

loopholes in the RPFJ must be eliminated and its

important ambiguities clarified

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.

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.

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 farreaching 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.

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.

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

28526 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

9Microsoft 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.’’).

10United 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).

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.

16 Id. at 103.

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.

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 nonMicrosoft 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:

[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

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28527

18Findings of Fact, 84 F. Supp. 2d at §§ 39–40.

19Microsoft III, 253 F.3d at 55–56.

20Schine, 334 U.S. at 128.

21See United States v. Paramount Pictures, 334

U.S. 131,171 (1948). 22CIS at 3.

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 nonWindows 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.

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

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.

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

28528 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

23See Findings of Fact, 84 F. Supp. 2d at § 360.

24 2/21/01 StatMarket Report Regarding Global

Browser Usage Share.

25See Microsoft III, 253 F.3d at 64.

26See id. at 71. 27See id. at 72.

30See id. at 76.

31See id. at 78.

32See id. at 77.

33See 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).

34See United States v. Microsoft Corp., 980 F.

Supp. 537, 539 (D.DC 1997).

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. 24To 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:

* Exclusionary contracts with OEMs,25

IAPs,26 and ISVs;27

* Commingling of software code to make

it technologically difficult to remove, Internet

Explorer from Windows; 28

* Anticompetitive deals with Apple

Computer.29

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 firstrate 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

* Anticompetitive threats to Intel to stop

Java platform development;31

* Deceiving developers into using

Microsoft’s incompatible implementation of

the Java platform;32 33 34

* 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28530 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

35 Id. at 539–40 (emphasis added).

36 Id. at 541–42.

37Responses of Charles F. Rule to Judiciary

Committee Questions at 13.

38See 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).

39See 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)’’).

40CIS at 38.

41CIS at 38–39. 42CIS at 33. 43CIS at 37–39.

product) with a Microsoft server operating

system product. (emphasis added).35 36 37 38 39

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 nonMicrosoft servers.’’ 40

* ‘‘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 nonMicrosoft 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

* ‘‘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

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 nonMicrosoft server operating system to

implement the Microsoft Communication

Protocols in a manner such that the nonMicrosoft 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 nonMicrosoft 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 nonMicrosoft 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 nonMicrosoft 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 nonMicrosoft 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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28531

44CIS at 39.

45The 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.

46See RPFJ, Sections VI.K and VI.T.

47 4/28/00 Plaintiffs’’ Memo. in Support of

Proposed Final Judgment at 28.

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 antipiracy, 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?

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.

‘‘Windows??.’’ 46In 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.

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.’’ 47It is only because Microsoft has

illegally maintained its PC operating system

28532 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

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 competitors 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 restored .................................................................................................. 2

B. Microsoft’s unlawful power to exclude competition in adjacent and downstream markets must be stopped and eventually dissipated .......................................................................................................................................................................................................... 4

C. The RPFJ fails to remedy the monopoly illegally maintained by Microsoft .......................................................................................... 5

D. The loopholes in the RPFJ must be eliminated and its important ambiguities clarified ...................................................................... 7

II. Sun Microsystems’’ Interest Regarding the Terms of the RPFJ ................................................................................................................... 8

III. The RPFJ Fails To Remedy the Continuing Harm to Competition Caused By Microsoft’s Illegal Acts ................................................. 9

A. The RPFJ fails to dissipate Microsoft’s monopoly power in the market for PC operating systems ..................................................... 9

1. The Department previously acknowledged that an effective remedy had to eliminate the applications barrier protecting

Microsoft’s monopoly .............................................................................................................................................................................. 10

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28533

TABLE OF CONTENTS—Continued

Page

No.

2. The RPFJ fails to address the effects of Microsoft’s distribution power ............................................................................................. 13

3. The RPFJ does little more than attempt to enjoin Microsoft from continuing to engage in the conduct already found to be unlawful ........................................................................................................................................................................................................ 15

4. The RPFJ assumes that Microsoft’s Windows distributors will promote competitive middleware products .................................. 16

B. The RPFJ does not remedy the continuing competitive harm to web browsers .................................................................................... 19

C. The RPFJ does not remedy the substantial harm to competition caused by Microsoft’s illegal acts against the Java platform ........ 22

IV Critical Terms In The RPFJ Are Undefined or Ambiguous ........................................................................................................................ 24

A. Significant ambiguities in the RPFJ must be cured to avoid further litigation ..................................................................................... 24

B. ‘‘Interoperate’’ and ‘‘interoperating’’ must be defined ......................................................................................................................... 27

C. The scope of Microsoft’s ‘‘Communication Protocols’’ disclosure should be clarified and exemplified ............................................ 30

D. The scope of the ‘‘carve-out’’ provisions of Section III J should be clarified ........................................................................................ 32

E. The definition of ‘‘Microsoft Middleware Product’’ should be amended .............................................................................................. 34

V. Section III I’s Licensing Provisions Allow Microsoft to Profit from Its Unlawful Acts ............................................................................ 35

A. Microsoft should not be allowed to demand royalties as a condition for making interoperability disclosures ................................. 35

B. Microsoft has too much discretion over licensing terms under the RPFJ .............................................................................................. 36

C. Microsoft should not be allowed to force third parties to forfeit their intellectual property claims against Microsoft ..................... 38

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:

28534 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: BALZERIII@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 anticompetitive 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

28536 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

zappled@georgetown.edu

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: zappled@georgetown.edu

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 nonMicrosoft 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: VANGUM5@aol.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

Joseph.L.Schwartz@verizon.net

Renata B. Hesse

Antitrust Division

U.S. Department of Justice

601 D Street NW Suite 1200

Washington, DC 20530–0001

microsoft.atr@usdoj.gov

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: JIMCAL80@aol.com@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:msfin@microsoft.com@inetgw

MTC–00029198

From: FHefton@aol.com@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.

28538 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: TranD97@aol.com@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: BJANTIQUE@aol.com@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, noninterchangeable 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:fin@mobilizationoffice.com@inetgw

MTC–00029206

From: PBelflower@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: SOLBCHRIS@aol.com@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:Thurmond@senate.gov@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.

28540 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Microsoft is a monopoly due to the fact that

they have created a far superior product, not

because what they have done is anticompetitive. 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: Plross84@aol.com@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:activism@moraldefense.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28542 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: ERB1927@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Genegrant@aol.com@inetgw

To: Microsoft ATR

Date: 1/28/02 10:00pm

28544 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: kevinc@oct.net@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: microman@wt6.usdoj.gov@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: MRourke555@aol.com@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: kittykat579@juno.com@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

28546 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Cathysboat@aol.com@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

rm3m@optonline.net

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

webmaster@nothingisnext.com

MSN Messenger: kduemling

Support the Freedom To Innovate: http://

www.freetoinnovate.com/ //end

CC: fin@mobilizationoffice.com@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 nonMicrosoft 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

28548 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Sincerely,

Walt.

CC:fin@mobilizationoffice.com@inetgw

MTC–00029258

From: Babajules@aol.com@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 microsoft.atr@usdoj.gov

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 twoyear 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: keencoyote@earthlink.net

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

28550 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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,

clrwater@earthlink.net

jeffc@ic.org

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: rbput.co@netzero.net@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 economicallydraining 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 antitrust 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

28552 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 welldocumented, 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 usercomputer 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:jhorn@nmu.edu@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: hmastran@neo.rr.com@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:fin@mobilizationoffice.com@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

28554 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 ANTICOMPETITIVE 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 Plugins 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-inbig-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: Susancrawford@aol.com@inetgw

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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

28556 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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,

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28557

1RealNetworks was originally named Progressive

Networks. It changed its name to RealNetworks in

September 1997.

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 groundbreaking 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 (DIAPsN ̃ ),

Internet Content Providers (DICPsN ̃ ),

Independent Software Vendors (DISVsN ̃ ) and

Independent Hardware Vendors (DIHVsN ̃ ),

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 (DDOJN ̃ ) 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 alltoo-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

28558 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

2United 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).

3See ‘‘Market Opportunity’’ Adapted from

source: Kagan World Media estimates 2001.

4See ‘‘Streaming Media Market Growth,’’ Source:

Paul Kagan Associates Streaming Media Investor.

5See ‘‘Total Active Streaming Media Users,’’

Source: Kagan World Media, June 2001.

6See ‘‘Consumer Broadband Adoption Blooms

over the Next Five Years,’’ Source: Jupiter MMXI.

7See ‘‘Percent of U.S. home Internet users

accessing streaming media,’’ Source: Nielsen/

NetRatings, July 2001.

8See 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.

9 Id. at 60, 62.

10 Id. at 59–64.

11 Id. at 64–67.

12 Id. at 70–73, 75–76.

13 Id. at 77–78.

14See id. at 71.

15Northern 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).

16Northern Pacific Railway, 356 U.S. at 4. See

also National Society of Professional Engineers, 435

U.S. at 695.

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

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, videoon-demand services, web conferencing, ecommerce 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

Current estimates for spending in the

streaming digital media sector alone exceed

$10 billion by 2010.4

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

There are over 10 million broadband

customers in the U.S., a number expected to

grow to over 35 million by 2006.6

Broadband use is important because it

greatly improves and facilitates streaming

media resulting in significantly higher

streaming media usage rates.7

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

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

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

(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

(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

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

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

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28559

17United 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.

19United 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).

20United 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).

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.

22 2 A REEDA at 325c.

23United 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).

24Ford Motor Co. v. United States, 405 U.S. 562,

575, 578 (1972).

25 253 F.3d at 53–55.

26 15 U.S.C. 16(e)(1).

27 Id. at 16(e)(2).

28United States v. Microsoft Corp., 56 F.3d 1448,

1461–62 (DC Cir. 1995).

29Antitrust 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).

30See id. at 16(e)(1–2).

31See 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.

32 253 F.3d at 103 (quoting Ford Motor, 405 U.S.

at 577, and United Shoe Machinery, 391 U.S. at

250).

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

An antitrust decree must ‘‘break up or

render impotent the monopoly power found

to be in violation of the Act.’’ 19

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

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

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

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

In addition, restraints may be imposed

upon the defendant that are designed to

allow the development of nascent

competition within the relevant market.24

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

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 wideranging 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

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

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

—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

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

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

28560 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

33 84 F. Supp. 2d at 78, 104–114.

34Although 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.

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

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 antiinnovation, 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 subwindows 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28561

35 Id. at 59–64.

36 Id. at 53–55.

37Pl. DOJ’s Competitive Impact Statement at 17–

18 (Nov. 15, 2001) [hereinafter CIS].

38 38 84 F. Supp. 2d at 206

39 Id. at 214 (bracketed text in original).

40 Id. at 158.

41 INTERNATIONAL DATA CORPORATION,

WORLDWIDE CLIENT AND SERVER OPERATING

ENVIRONMENTS MARKET FORECAST AND

Continued

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 nonMicrosoft middleware violates the Sherman

Act.35

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

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

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

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.

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

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

28562 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

ANALYSIS SUMMARY 2001–2005 at 11–12 (Aug.

2001).

42For 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.’’)

43 Id. at 203–08, 213, 241.

44 Id. at 241, 240.

45 Id. at 230, 235–38, 241.

46 Id. at 213–15, 230–31, 236–37, 241.

47 47 Id. at 215.

48 48 Id. at 241.

49 253 F.3d at 64–66.

50 253 F.3d at 66–67.

51 84 F. Supp. 2d at 203.

52 52 Id. at 213.

53 Id. at 204–08.

54 253 F.3d at 60–64.

55 84 F. Supp. 2d at N 222.

found, Microsoft has used its monopoly

power to impose its will on OEMs.42

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

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

Third, Microsoft has used its power to

threaten and retaliate against OEMs that did

not accede to its wishes.45

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

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

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.

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

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

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 NonMicrosoft 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:

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

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

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28563

56 Id. at 231.

57See RPFJ at Section III.H.2.

58 84 F. Supp. 2d at 213.

59See 253 F.3d. at 61–62.

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).

61 Id. at 203.

62 Id. at 206, 208.

63 Id. at 203.

64 64 CIS at 11.

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.

66 Id. at 11.

67 84 F. Supp. 2d at 237.

68 Id. at 215. See also id. at 213–14.

69 Id. at 230.

70 Id. at 231.

71 Id. at 231, 236.

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

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

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

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 highestvolume 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

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

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 antiretaliation 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

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

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

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

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

Indeed, the court found that Microsoft

agreed to give OEMs millions of dollars in comarketing funds, as well as costly in-kind

assistance, in exchange for their carrying out

other promotional activities for Internet

Explorer.70

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

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

28564 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

72 Id. at 90–92.

73Secure 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.

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

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.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28565

74 84 F. Supp. 2d at V 412.

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 nonexistent, 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

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

crwfca@juno.com

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

28566 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Hhall27610@aol.com@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, fin@

MobilizationOffice.com writes: <<

microsoft.atr@usdoj.gov >>

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 fin@mobilizationoffice.com 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: microsoft.atr@

usdoj.gov

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:activism@moraldefense.com@inetgw

MTC–00029319

From: KISSELL814@aol.com@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

28568 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: BRTSTAR1@aol.com@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: lward@infi.net@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

28570 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: microsoft.atr@usdoj.gov

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: tylerb@mac.com@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

28572 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 socalled ‘‘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 antitrust 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 toonarrowly 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: Myers130@cs.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 antiretribution 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

28574 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 capsol@attbi.com

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 Microsoft.atr

@usdoj.gov

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: glassguy@chouteautel.com@inetgw

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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Mamusia@aol.com@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 BEONESEVEN@

worldnet.att.net

MTC–00029364

From: DSchum2147@aol.com@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

28576 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 anticompetitive 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: DEBORAHBAHARA@aol.com@inetgw

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28578 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: ACalapai@aol.com@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 screwups?

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, antisocial, 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 playtoy.

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 welldeserved 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: VMo1830Q@aol.com@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

vmo1830q@aol.com

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, hardto-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.

28580 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

johnhug@iglou.com

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,06karenh@

students.harker.org@inetgw,...

Date: 1/28/02 11:35pm

Karen Horovitz

Period 2

1/28/01

To Whoever it may concernI 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 subcompanies. 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: HARRYR63@aol.com@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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:fin@mobilizationoffice.com@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

dhlittle@mindpring.com

MTC–00029393

From: Virginiastone527@cs.com@inetgw

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 grahamws@attbi.com

MTC–00029395

From: female1@iwon.com@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 economicallydraining 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.

28582 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

moon@digitalbuilders.com

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 BEONESEVEN@

worldnet.att.net

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: microsoftcomments@doj.ca.gov@

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)

28584 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 worlddominating, 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, DRDOS, 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 NonMicrosoft ‘‘middleware’’ and requires the

consumers consent before any Microsoft

‘‘middleware’’ can remove any NonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 Pleadings In This Case ................................................................................. xi

Index of Abbreviated Terms Used In These Comments .................................................................................................................................. xiii

28586 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

TABLE OF CONTENTS—Continued

Page

No.

I. INTRODUCTION ............................................................................................................................................................................................. 1

II. A MONOPOLIZATION REMEDY MUST BE 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 ......................................................................................................... 12

A. The Court Of Appeals Sustained A Finding Of Successful And Longstanding Monopolization In A Crucial Technology Industry 12

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 Significant Barriers To Entry .................................................................... 14

4. Microsoft’s Monopoly Has Self-Perpetuating Incentives ...................................................................................................................... 14

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 ................................................................................................................................................................ 15

a. License Restrictions ............................................................................................................................................................................. 16

b. Commingling Source Code ................................................................................................................................................................. 16

c. Exclusionary Agreements .................................................................................................................................................................... 17

d. Actual And Attempted Coercion And Retaliation To Exclude Competitors ................................................................................... 18

e. Efforts To Subvert Sun-compliant Java Technologies ....................................................................................................................... 19

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 .............................................................................................. 21

1. Purpose Of Relief .................................................................................................................................................................................... 21

a. End Anticompetitive Practices And Prevent Their Recurrence ....................................................................................................... 21

b. Restore Competition (Deny The Fruits Of Wrongdoing) ................................................................................................................... 23

2. The Law Requires Effective Measures To Accomplish These Results ................................................................................................ 24

a. Relief Must Neutralize Monopoly Power At Its Source And Eliminate The Monopolist’s Incentive To Exclude Competitors

From The Market ................................................................................................................................................................................. 24

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 ...................................................... 24

c. Relief Must Prevent Regulatory (Decree) Evasion ............................................................................................................................. 25

d. Relief Must Be Of Sufficient Duration To ‘‘Pry Open’’ The Monopolized Market By Allowing Competitive Products To Take

Root ....................................................................................................................................................................................................... 26

i. It Takes Years For Competitive Alternatives—Web Portals, Servers And Middleware—To Develop, Even Assuming Lack

Of Obstruction .................................................................................................................................................................................. 26

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 .................................................................................................................... 27

C. The Tunney Act Requires Courts To Reject Seriously Deficient Decrees .............................................................................................. 28

III. THE PROPOSED SETTLEMENT FAILS IN EVERY MATERIAL RESPECT TO ACHIEVE THE OBJECTIVES OF RELIEF REQUIRED

BY THIS CASE AND AFFIRMATIVELY PROVDES A ‘‘GREEN LIGHT’’ AND AN INCENTIVE TO ENGAGE IN EXCLUSIONARY

CONDUCT ....................................................................................................................................................................................................... 32

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 .............................................................. 32

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 ......... 35

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 ................................................................................................................................. 35

a. The Definitions In The Decree Effectively Leave Compliance At Microsoft’s Discretion .............................................................. 36

i. The Definitions Of ‘‘Microsoft Middleware’’ And ‘‘Microsoft Middleware Product’’ Encourage Microsoft To Continue

Binding Middleware To Its Monopoly Windows Operating System ............................................................................................ 36

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 .................................................................................................... 40

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 ...................................................................................................................................... 42

b. The Settlement Fails To Prohibit Tactics Used By Microsoft To Foreclose OEM Distribution Of Competing Products And

Allows That Unlawful Behavior To Continue ................................................................................................................................... 43

i. A Prohibition Against Commingling Of Code Is Necessary To Prevent Microsoft From Continuing To Exclude Competition

That Threatens The Windows Monopoly ....................................................................................................................................... 44

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 ....................................................................................... 48

iii. The Provisions In The Proposed Settlement That Putport To Foster OEM Flexibility In Product Configuration And

Middleware Choices Contain Fatal Ambiguities And Loopholes ................................................................................................. 50

c. Provisions That Putport To Allow End-Users And OEMS To Enable Or Remove Middleware Products Are Severely Flawed 54

i. Inability To Actually Remove Microsoft Products From The Operating System Cripples The Effectiveness Of The Decree .. 54

iii. 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 ............................................. 55

(a) Microsoft Can Alter End-User/OEM Choices ............................................................................................................................ 56

(b) Microsoft Can Override End-User/OEM Middleware Default Choices ................................................................................... 57

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 .................................................................................................... 60

2. Provisions Designed To Protect Interoperability Between Microsoft Products And Non-Microsoft Products Are Seriously

Flawed ...................................................................................................................................................................................................... 62

a. The Government’s Original Remedy Required Broad And Meaningful Interoperability Disclosure By Microsoft ...................... 63

b. The Proposed Settlement’s Interoperability Disclosure Requirements Are Wholly Inadequate .................................................... 69

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28587

TABLE OF CONTENTS—Continued

Page

No.

i. Important Areas Of Potential Competition In The Monopolized Market Are Not Included In The Interoperability Disclosure Provision ................................................................................................................................................................................... 69

(a) The Proposed Settlement Will Not Achieve Server Interoperability ....................................................................................... 70

(b) The Settlement Fails To Require Disclosure To Enable Interoperability Between Internet Explorer And Non-Microsoft

Servers ........................................................................................................................................................................................... 72

(c) The Proposed Settlement Does Not Contain An Interoperability Disclosure Provision To Cover Server-To-Server Communications ................................................................................................................................................................................... 76

(d) The Proposed Settlement Does Not Contain Interoperability Disclosure Provisions To Cover ‘‘Embedded Devices’’ ....... 77

(e) The Technical Information That Is Required To Be Disclosed Under The Proposed Settlement Is Insufficient To

Achieve Interoperability ............................................................................................................................................................... 78

(f) The Timing Of The Required Disclosure Under The Proposed Settlement Will Impede, Not Promote, Competition ........ 80

(g) Important Terms In The Proposed Settlement Are So Loosely Defined That They Enable Microsoft To Avoid Disclosure ................................................................................................................................................................................................ 84

ii. The Mandatory Licensing Provisions Are Illusory ........................................................................................................................ 85

iii. The Limitation Upon Disclosure Based On Alleged Security Concerns Is A Massive Loophole ............................................. 88

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 .............................................................................................................. 91

a. The Government’s Settlement Substitutes Weak And Narrow Protections Of Third Parties For The Strong And Broad Provisions Justified By Microsoft’s Conduct ............................................................................................................................................... 93

i. The Range Of Parties Protected From ‘‘Retaliation’’ Is Too Limited ............................................................................................ 95

ii. ‘‘Retaliation’’ Is Not Defined ........................................................................................................................................................... 96

iii. The Party Injured By Retaliation Must Prove Causation ............................................................................................................. 97

iv. Retaliation Not Involving Windows Or Middleware Is Allowed ................................................................................................ 97

v. Loopholes Vitiate Even The Existing Limitations ......................................................................................................................... 97

vi. Unnecessary And Ambiguous Savings Clauses Undermine The Decree .................................................................................... 98

vii. There Is No Prohibition On Agreements Limiting Competition ................................................................................................ 98

viii. There Is No Protection Against Retaliation For Participating In This Lawsuit ....................................................................... 99

b. The Proposed Uniform Licensing To OEMs Is Insufficient .............................................................................................................. 99

i. Allowing ‘‘Market Development Allowances’’ Invites Evasion ..................................................................................................... 101

ii. Microsoft Is Allowed To Keep License Terms Secret ................................................................................................................... 101

iii. There Is No Independent Verification Of ‘‘Volume’’ Discounts ................................................................................................. 102

iv. License Terminations Without Cause Are Allowed ..................................................................................................................... 102

c. The Proposed Settlement Fails To Address Exclusive Dealing Adequately .................................................................................... 103

i. The Exclusive Dealing Prohibition Is Limited To Identified Parties Only ................................................................................... 105

ii. Paying Third Parties To Refrain From Using Non-Microsoft Products Is Allowed .................................................................... 105

iii. Microsoft Can Pay Others To Distribute Its Monopoly Software ................................................................................................ 106

iv. The Exclusive Dealing Provision Is Riddied With Loopholes ..................................................................................................... 107

4. The Term of the Settlement Is Too Short—Even If Its Deficiencies Were Corrected ......................................................................... 107

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 In The Decree, But Are Not ........................................................... 113

c. The Proposed ‘‘Dispute Resolution’’ Mechanism Encourages Delay ............................................................................................... 114

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 ................................................................................................................................................................... 115

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 Computing Model That Will Erode The Applications Barrier To

Entry That Currently Shields Microsoft’s Monopoly Power .................................................................................................................... 120

C. The Proposed Settlement Would Allow Microsoft To Render SBC’s Internet-Based Businesses Significantly Less Competitive .... 122

1. The Proposed Settlement Will Allow Microsoft To Block Consumers’ Access To Competing Products And To Impede Their

Functionality ............................................................................................................................................................................................ 122

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 To Raise Its Rivals’ Costs ...................................................................... 124

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 ........................................................................................................................................................... 125

4. The Proposed Settlement Will Stifle Innovation And Force Competitors To Sacrifice Quality In Certain Critical Markets .......... 126

5. Delayed Disclosure Will Harm Competition ......................................................................................................................................... 129

V——: WITHOUT SIGNIFICANT CHANGES, THE PROPOSED SETTLEMENT CANNOT SATISFY THE PUBLIC INTEREST STANDARD .................................................................................................................................................................................................................. 131

A. Changes Must Be Made to RPFJ § III.A (OEM and Other Licensee Retaliation) .................................................................................... 132

B. A Provision Prohibiting Retaliation By Microsoft Against Any Party Who Participates In The Litigation Must Be Added ............. 135

C. A Provision Requiring Microsoft To Port ‘‘Office’’ To Apple’s Operating System Must Be Added .................................................... 135

D. Changes Must Be Made To RPFJ § III.B (Uniform Licensing) ................................................................................................................. 136

E. A Provision Requiring Equal Access to Microsoft Licensing Terms And Conditions Must Be Added ............................................... 136

F. A Provision Prohibiting Microsoft From Enforcing Agreements That Are Inconsistent With The RPFJ Must Be Added .................. 137

G. Changes Must Be Made to RPFJ § III.C (Restrictions on OEM Configuration of PCs) ........................................................................... 137

H. A Provision That Prohibits Microsoft From Commingling Must Be Added .......................................................................................... 141

28588 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

TABLE OF CONTENTS—Continued

Page

No.

I. A Provision Determining The Relative Prices Of Unbundled Versions of Windows Must Be Added .................................................. 142

J. A Provision Requiring That Microsoft Continue To Offer Predecessor Versions Of Windows Must Be Added .................................. 143

K. Changes Must Be Made To RPFJ §§ III.D And III.E (Interoperability Disclosure) ................................................................................. 144

L. A Provision That Requires Mandatory Distribution of Java Must Be Added ......................................................................................... 145

M. A Provision Prohibiting Interference With Or Degradation Of Non-Microsoft Middleware Must Be Added .................................... 145

N. A Provision Requiring Microsoft to Comply With Industry Standards Must Be Added ...................................................................... 146

O. A Provision Requiring Open-Source Licensing for Internet Explorer Must Be Added ......................................................................... 148

P. Changes Must Be Made To RPFJ § III.F (Retaliation Against Any Third Party) ..................................................................................... 149

Q. A Provision Prohibiting Microsoft From Entering Agreements That Limit Competition Must Be Added .......................................... 151

R. Changes Must Be Made To RPFJ § III.G (Ban on Exclusive Dealing) ...................................................................................................... 151

S. Changes Must Be Made To RPFJ § III.H (OEM/End User Control of the Desktop) ................................................................................ 154

T. Changes Must Be Made To RPFJ § III.I (Mandatory Licensing) ............................................................................................................... 156

U. Changes Must Be Made To RPFJ § III.J (Limitations on Mandatory Licensing) ..................................................................................... 156

V. Changes Must Be Made To RPFJ §§ IV And V (Compliance And Enforcement) ................................................................................... 157

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 U.S. 562 (1972) ......................................................................................................... 7, 21, 24, 26

Hartford-Empire Co. v. United States, 323 U.S. 386 (1945) ................................................................................................ 26

Int’l Salt Co. v. United States, 332 U.S. 392 (1947) ............................................................................................................. 7, 21, 22, 24, 26, 27

N. Pac. Ry. v. United States, 365 U.S. 1 (1958) .................................................................................................................... 29

Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679 (1978) ...................................................................................... 21, 22

Otter Tail Power Co. v. United States, 410 U.S. 366 (1973) ................................................................................................ 26

Schine Chain Theaters, Inc. v. United States, 334 U.S. 110 (1948) .................................................................................... 10, 23, 28

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 1001 (1983) .................................................................................................................. 6, 11, 24–32, 116–

117

United States v. American Broadcasting Co., Inc., Civ. No. 74–3600 (RJK), 1980 WL 2013 (C.D. Cal. Nov. 14, 1980) .. 110

United States v. Business Inv. & Dev. Corp., No. MO-81-CA-20, 1982 WL 1866 (W.D. Tx. July 16, 1982) ..................... 113

United States v. Crescent Amusement Co., 323 U.S. 173 (1944) ........................................................................................ 26

United States v. Delta Dental of R.I., No. Civ. A. 96–113P, 1997 WL 527669 (D.R.I. Feb. 15, 1991) ............................... 113

United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316 (1961) ............................................................................... 21, 23, 25

United States v. General Elec. Co., 115 F. Supp. 835 (D.N.J. 1953) .................................................................................... 86, 87

United States v. Glaxo Group Ltd., 410 U.S. 52 (1973) ....................................................................................................... 26, 28

United States v. Greyhound, Civ. No. 95–1852 (RCL), 1996 WL 179570 (D.D.C. Feb. 27, 1996) ..................................... 110

United States v. Grinnell Corp., 384 U.S. 563 (1966) .......................................................................................................... 23, 24, 29

United States v. GTE Corp., 603 F. Supp. 730 (D.D.C. 1984) .............................................................................................. 111

United States v. Microsoft Corp., 147 F.3d 935 (D.C. Cir. 1998) ........................................................................................ 13, 112

United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) ........................................................................................ 29, 30, 31, 131, 132

United States v. Playmobil USA, Inc., Civ. No. 95–0214, 1995 WL 366524 (D.D.C. May 22, 1955) ................................ 110

United States v. Republic Services, Inc., Civ No. 00–2311, 2001 WL 77103 (D.D.C. Jan. 18, 2001) ................................ 110

United States v. U.S. Gypsum Co., 340 U.S. 76 (1950) ........................................................................................................ 22, 23, 28, 30

United States v. United Shoe Mach. Corp., 110 F. Supp. 295 (D. Mass. 1953), aff’d, 347 U.S. 521 (1954) .................... 21,24

United States v. United Shoe Mach. Corp., 391 U.S. 244 (1968) ........................................................................................ 22, 26

United States v. Western Elec. Co., 569 F. Supp. 1057 (D.D.C. 1983), aff’d sub nom. ......................................................

California v. United States, U.S. 1013 (1983) ....................................................................................................................... 26, 86

United States v. Western Elec. Co., Civ. No. 82–0192 (HHG), 1991 WL 33559 (D.D.C. Feb. 15, 1991) ........................... 113

United States v. Western Electric Co., 673 F. Supp. 525 (D.D.C. 1987) ............................................................................. 116–117

Zenith Radio Corp. v. Hazeltine Research, Inc. 395 U.S. 100 (1969) ................................................................................. 25

Statutes:

15 U.S.C. § 16 ...................................................................................................................................................................... i, 1, 28, 29

42 U.S.C. §§ 251–59, 271 .................................................................................................................................................... 125

Other Authorities:

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.

38

Browser Bruiser, Chicago Sun Times, October 27, 2001 .................................................................................................. 80

Byron Acohido, Challenging Microsoft? It Could Take Moxi, USA Today, Jan. 16, 2002 ............................................ 4, 118

Byron Acohido, Microsoft Memo to Staff: Clobber Linux, USA Today, Jan. 4, 2002 .................................................... 90

T. Capers Jones, Estimating Software Costs Function Point Analysis: Measurement Practices for Successful Software Projects (1998).143

David Garmus and David Herron, Function Point Analysis: Measurement Practices for Successful Software

Projects (2000).

143

Department of Justice, Antitrust Division Manual ........................................................................................................... 108

Don Clark, AOL Sues Microsoft Over Netscape in Case That Could Seek Billions, Wall Street Journal, Jan. 23,

2002.

47

Experience the Connected Home: Share One or Many Computers (May 9, 2001), at http://www.microsoft.com/

windowsxp/home/evaluation/experiences/connectedhome.asp.

43

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28589

TABLE OF AUTHORITIES—Continued

Cases Page No.

Is Apple Out of the Running in the Operating Systems War? (Jan. 8, 2002), at http://www.websidestory.com/

cgibinwss.cgi?corporate&news&press 1—163.

14

Jesse Berst, Office Suites for Free, ZDNet AnchorDesk (March 7, 1997), at http://www.zdnet.com/anchordesk/

story/story—743.html.

38

Lee Gomes, Linux Campaign Is An Uphill Battle For Microsoft, Wall Street Journal, June 14, 2001 .......................... 90

Microsoft Unveils New Home PC Experiences with ‘‘Freestyle’’ and ‘‘Mira’’, (Jan. 7, 2002), at www.Microsoft.com/

presspass/Press/2002/Jan02/01.

4, 127

MSN Shuts Out Other Browsers, Associated Press, October 28, 2001 ............................................................................ 80

Rebecca Buckman, Microsoft is Suing Linux Start-up Over Lindows Name, Wall Street Journal, December 24,

2001.

90

Wayne Epperson, NT Insurance at a Premium, HostingTech (August 2001), at www.hostingtech.com/security/

01—08—nt.

91

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 everexpanding 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 illegallymaintained 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

28590 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28592 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

1As 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/cgibinwss.cgi? corporate &news&press_l_163.

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

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 ‘‘chickenand-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 SelfPerpetuating 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 preinstall 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28593

2When this document refers to ‘‘Java’’ without

any adjectives or other modifiers, it refers to Sun

Microsystems’ product.

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:

‘‘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 forwardlooking 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)).

28594 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28595

3The 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).

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 longlasting 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 selfinterest, 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

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

28596 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

4The 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.

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 Intelcompatible 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 forwardlooking 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 handheld 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.

a. The Definitions In The Decree

Effectively Leave Compliance At Microsoft’s

Discretion

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28597

5Even 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.

6Significantly, 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.

8An 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.

9The 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, email 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.

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 reconfigure 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.

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 66 and Internet telephony

products, that perform functions analogous to

the listed ‘‘middleware’’ products.7

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 crossdependent 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

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 ‘‘NonMicrosoft 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

28598 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

10The 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).

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).

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.

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 ‘‘nonexistent’’ 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 nondesktop 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

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 endusers 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 browserspecific 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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28599

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 NonMicrosoft 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.

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).

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.

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 nonremovable 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

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.

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

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 nonMicrosoft 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

28600 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

15The 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.

16Section 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.

17The 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.

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

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 nonMicrosoft 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 startup 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 nonMicrosoft 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

Subsection 5 allows OEMs to configure the

Windows desktop to promote a nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28601

18OEMs 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.

19Although 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.

omission in the proposed settlement of this

and other OEM configuration options that the

government strongly advocated before the

District Court and on appeal.

c. Provisions That Purport To Allow EndUsers 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 emsp; 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.

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 EndUser 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 NonMicrosoft 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

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

28602 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

20The 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.

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.

22As 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.

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 NonMicrosoft 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

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.

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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 spellcheck a document, the PC’s processor is used

to process the relevant software program to

perform the functions. Under the servernetwork 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 crossplatform 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 email 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

28604 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

23With 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.

24A 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.

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 serverbased 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) 2323; (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.

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 nonMicrosoft 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

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28605

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.

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 NonMicrosoft 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

(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

28606 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

26The 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.

27The 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.

28When 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.

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-toserver 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 nonMicrosoft 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

(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

(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.’’).

(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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28607

29Under the proposed settlement, there is no

practical way for competitors who must pay the fee

to challenge its reasonableness.

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 flipside 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

28608 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

these dangers can be avoided only by

requiring any license to be royalty-free:

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 anticompetitive 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 antipiracy, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 21§ 3(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.

28610 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

30The 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.

31Microsoft 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.

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.

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.

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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 nonMicrosoft 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, nonMicrosoft 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

28612 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

32The 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.

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 nonMicrosoft 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.

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 fiveyear 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28613

33Based 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.

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).

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 selfenforcing 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-CA20, 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

28614 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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.

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 dialup 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.

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 serverbased computing, and multi-platform, multidevice 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 endusers 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 SBCYahoo homepage as their default homepage

on IE. Likewise, nothing in the proposed

28616 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 prelogin 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 noncompliant 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.

28618 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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 nonMicrosoft 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)

28620 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

35For 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.

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 nonMicrosoft server operating systems and

embedded devices.

Section 4 of the Litigating States’ proposal

achieves full interoperability between (i) a

Windows PC operating system and nonMicrosoft Middleware; (ii) a Windows PC

operating system and a non-Microsoft server

operating system; (iii) Microsoft Middleware,

including Internet Explorer, and a nonMicrosoft 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 Windowscompatible 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 nonMicrosoft 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.

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 industryrecognized 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)

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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)

28622 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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‘‘NonMicrosoft 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Jwoodswce@aol.com@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: ram@wt6.usdoj.gov@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,

28624 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 longterm positive impact.

Regards,

Rick Hornbeck

Hornbeck Consulting

556 S. Fair Oaks Ave., Suite 346

Pasadena, CA 91105

Rick—Hornbeck@pacbell.net

(cell) + 1 323 363–2151

(efax) + 1 208 275–1245

January 28, 2002

U.S. Department of Justice

Anti-trust Division

Microsoft.atr@usdoj.gov

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—cuttingand-pasting between applications.

Nevertheless, any government or courtordered solution must confront Microsoft’s

strong public relations and marketing

machine, which means that the product linebased 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 Windowscompatible 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonexistent 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 thirdparty 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/bioengineering 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 realtime 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 datasharing 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

28626 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 wideare 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 managerInternet 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 telemarketing 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 crosschecking 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 dialup 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.

28628 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 publickey 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 costof-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

28630 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:\windows\commands. 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:\windows\commands. 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 decouple 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 Internetrelated 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

28632 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 ‘‘TrustModel’’ 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 email 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 ACTIVEXRELATED 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—BandAid 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, timeconsuming 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 resign 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

28634 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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-bediscovered 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonrepudiation, ‘‘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 lifethreatening 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., online banking) through a ‘‘secure’’ (SSLenabled) 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 nonMicrosoft 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 ‘‘untrusted’’ 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,

28636 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

as each of them has a stake in making the online 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

Rick_Hornbeck@pacbell.net

(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 PKIrelated 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 inhouse legal counsel, defining and

documenting application-specific, PKIrelated legal issues.

ENTRUST TECHNOLOGIES—Plano, Texas

1999—2000. Senior Security ConsultantDeveloped 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 onsite 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 PlannerResponsible 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/ProgrammerSupervised 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: HGoeppele@aol.com@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 wholeheartedly, 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

28638 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

mgreisman@scanalytics.com

Michael Greisman

Applications Scientist Scanalytics, Inc.

mgreisman@scanalytics.com

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:dkleinkn@yahoo.com@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

frist@cc.umanitoba.ca 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

frist@cc.umanitoba.ca

http://home.cc.umanitoba.ca/frist

Judge Colleen Kollar-Kelly

microsoft.atr@usdoj.gov

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 worldwide 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 nonMicrosoft 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

28640 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 selfpropagating 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

frist@cc.umanitoba.ca

http://home.cc.umanitoba.ca/frist

Judge Colleen Kollar-Kelly

microsoft.atr@usdoj.gov

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 worldwide 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 nonMicrosoft 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

28642 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 selfpropagating 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,

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:jrb@strikerltd.com

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 nonMicrosoft 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: JSHIPPO@aol.com@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 MSDOS 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

28644 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

joeb@grandecom.net

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: microsoft.atr@usdoj.gov

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, email, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28645

5230 Pacific Concourse Drive

Suite 20

Los Angeles, CA 90045

Email Address: microsoft.atr@usdoj.gov

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

28646 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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—wh@

wirewd.com

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 selfdefense—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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Luckypuppy12@aol.com@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

(Gramkorn@dotstar.net)

CC:fin@mobilizationoffice.com@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: J1935WASPM@aol.com@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: rivers123@juno.com@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.

28648 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: DHstn645@aol.comcommat;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 highstakes 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: KKline3523@aol.com@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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: lhsflys@juno.com@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: RichardLCa@aol.com@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\oemment 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\Ang in to strip

remaining bits of flesh from a down-beaten

company as well as pre\enting 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\en 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\oe their buttons from all their

shirts and gi\Ang Sears and others the

opportunity to offer their buttons or even

zippers perhaps. This would then gi\oe 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 \cry much for allowing me to

address this issue.

Richard L. Cadson

21026 6th A\e

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 themselves 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

28650 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 antiMicrosoft 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 blueribbon 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28652 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: Alanbe1935@aol.com@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 windowsmouse-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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

ajhslc@msn.com

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

crpaulk@msn.com

MTC–00029472

From: tpowers5@juno.com@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: RonFaunce@aol.com@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: brad.zielinski@equant.com@inetgw

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 BradZielinski@

Yahoo.com

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

28654 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 msulliva@stevens-tech.edu 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: Livkixit@aol.com@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:nolandpeebles@attbi.com@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: bluetail@excite.com@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

rpower2k@earthlink.net

Robert Power

rpower2k@yahoo.com

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: soliver@bwwonline.com@inetgw

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.

28656 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Microsoft.atr@

usdoj.gov. 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 powersthat-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 flatout, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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:fin@mobilizationoffice.com@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: MARHEO@aol.com@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.

28658 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Sincerely,

Mary Marchand

CC:fin@mobilizationoffice.com@inetgw

MTC–00029502

From: p singer@earthlink.net

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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,

28660 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

Janette Richards

MTC–00029511

From: Bryan D. Shipp

To: Microsoft ATR, fin@

mobilizationoffice.com@inetgw

Date: 1/29/02 1:28am

Subject: Microsoft Settlement

———Original Message——-

From: Microsoft’s Freedom To Innovate

Network

[mailto:fin@MobilizationOffice.com]

Sent: Wednesday, January 09, 2002 9:57 PM

To: ‘‘bryan_shipp@pittsburghscoop.com’’

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 fin@mobilizationoffice.com

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: microsoft.atr@usdoj.gov

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: RETIREDE9@aol.com@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 threemember 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: MACalmes@aol.com@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. <joelwest@uci.edu>

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28661

Del Mar, Ca 92014

CC:microsoftcomments@doj.ca.gov@

inetgw,dkleinkn@yahoo...

MTC–00029516

From: Rowdybeaver96@aol.com@inetgw

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:Livkixit@aol.com@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 Notfor-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-forprofit 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

rsmith@occamnetworks.com

Mesa, AZ

CC:smithl@bnswest.net@inetgw,rsmith@

occamnetworks.com

MTC–00029518

From: HassGA@aol.com@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:Livkixit@aol.com@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 specialinterest 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

dianamayhew1@msn.com

MTC–00029520

From: Dougcom102@aol.com@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: JayMay4@aol.com@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:Livkixit@aol.com@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

28662 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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:microsoftcomments@doj.ca.gov@

inetgw,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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 everchanging 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 nonMicrosoft 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

28664 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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 forwardlooking 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28666 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 onehalf 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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 tamperproof 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

28668 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 ThirdParty 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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 NonCompliance 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

28670 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 postTunney 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 welldocumented 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

<http://www.usdoj.gov/atr/cases/f1700/

1763.htm> (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: pdm@wt6.usdoj.gov@inetgw

28672 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

jimm333@juno.com

MTC–00029528

From: Geoffrey Peck

To: Microsoft ATR

Date: 1/29/02 2:11am

Subject: Microsoft Settlement

January 28, 2002

Renata B. Hesse

microsoft.atr@usdoj.gov

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 prerelease (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 Linuxbased products must be full and complete

ports—they cannot use a Windows emulation

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28674 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: fondue@best.com@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 economicallydraining 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: Masodoi@aol.com@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 antiMicrosoft 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.

28676 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nearmonopoly 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 anticompetitive 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: blakem@cobalt.blakem.com@inetgw

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 illgotten 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: Roddybabes@aol.com@inetgw

To: Microsoft ATR,senator—leahy@

leahy.senate.gov@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,

28678 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 anticompetitve. 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: MarieL234@aol.com@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 crybabies 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 egoinduced 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 nonMicrosoft 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: walts@dorsai.org

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: walts@dorsai.org

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: microsoft.atr@usdoj.gov

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 nonMicrosoft 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

28680 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonMicrosoft 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 nonMicrosoft 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28682 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: ???tav@yahoo.com

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:: terryrnck@maine.rr..com

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 selfsame 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: jagambetta@cs.com

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, lmuirc@swbell.net

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

28684 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 probusiness 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

28686 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 Gambr??o, 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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—

Hendrickson@west.raytheon.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 NonDisclosure 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

28688 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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/intro8.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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 antitrust 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 courtappointed 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

28690 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nondiscriminatory 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 nonMicrosoft 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–00029611

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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

28692 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 nonexhaustive 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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 antitrust 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

28694 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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

jothedy@aol.com

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 nonMicrosoft 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: Conny@cox.Net

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

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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: tsnsarma@yahoo.com

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

28696 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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: jrigsbee@rigsbee.net

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.

Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 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 nonMicrosoft 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

28698 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices

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 oldfashioned 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