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Special: The Microsoft Case
May 1, 2000:
The Justice Dept. asks a federal court to
split Microsoft into two companies.
April 28, 2000:
Government and 19 states suing Microsoft explanation of the government's proposal
April 3, 2000:
Judge rules against Microsoft
April 3, 2000:
Analysis of the court's decision against Microsoft
Nov. 8, 1999:
Microsoft's Bob Herbold responds to the decision that Microsoft is a monopoly.
Nov. 5, 1999:
Two legal experts analyze the court's findings in Microsoft antitrust case.
April 1, 1999:
Efforts to settle Microsoft case failed.
Nov. 12, 1998:
A discussion on each side's arguments in the antitrust case.
May 18, 1998:
Justice
Department and 20 states launch antitrust actions.
May 18, 1998:
Technology experts discuss how
the Microsoft case will shape the industry.
April 14, 1998:
Did
Microsoft try to stifle competition?
Jan. 13, 1998:
The Justice Department files
a complaint against Microsoft.
Oct. 21, 1997:
The
Justice Department charges Microsoft with monopolistic practices.
Browse the NewsHour's coverage of cyberspace
and law.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FINAL JUDGMENT
Plaintiff, United States of America, having filed its
complaint herein on May 18, 1998;
Plaintiff States, having filed their complaint herein
on the same day;
Defendant Microsoft Corporation ("Microsoft") having
appeared and filed its answer to such complaints;
The Court having jurisdiction of the parties hereto
and of the subject matter hereof and having conducted a trial thereon
and entered Findings of Fact on November 5, 1999, and Conclusions of
Law on April 3, 2000;
The Court having entered judgment in accordance with
the Findings of Fact and the Conclusions of Law on April 3, 2000, that
Microsoft has violated §§ 1 and 2 of the Sherman Act, 15 U.S.C.
§§ 1, 2, as well as the following state law provisions: Cal
Bus. & Prof. Code §§ 16720, 16726, 16727, 17200; Conn.
Gen. Stat. §§ 35-26, 35-27, 35-29; D.C. Code §§
28-4502, 28-4503; Fla. Stat. chs. 501.204(1), 542.18, 542.19; 740 Ill.
Comp. Stat. ch. 10/3; Iowa Code §§ 553.4, 553.5; Kan. Stat.
§§ 50-101 et seq.; Ky. Rev. Stat. §§ 367.170, 367.175;
La. Rev. Stat. §§ 51:122, 51:123, 51:1405; Md. Com. Law II
Code Ann. § 11-204; Mass. Gen. Laws ch. 93A, § 2; Mich. Comp.
Laws §§ 445.772, 445.773; Minn. Stat. § 325D.52; N.M.
Stat. §§ 57-1-1, 57-1-2; N.Y. Gen. Bus. Law § 340; N.C.
Gen. Stat. §§ 75-1.1, 75-2.1; Ohio Rev. Code §§
1331.01, 1331.02; Utah Code § 76-10-914; W.Va. Code §§
47-18-3, 47-18-4; Wis. Stat. § 133.03(1)-(2); and
Upon the record at trial and all prior and subsequent
proceedings herein, it is this _____ day of June, 2000, hereby:
ORDERED, ADJUDGED, AND DECREED as follows:
1. Divestiture
a. Not later than four months after entry of this
Final Judgment, Microsoft shall submit to the Court and the Plaintiffs
a proposed plan of divestiture. The Plaintiffs shall submit any objections
to the proposed plan of divestiture to the Court within 60 days of receipt
of the plan, and Microsoft shall submit its response within 30 days
of receipt of the plaintiffs' objections.
b. Following approval of a final plan
of divestiture by the Court (the "Plan")(1)
(and the expiration of the stay pending appeal
set forth in section 6.a), Microsoft shall implement such Plan.
c. The Plan shall provide for the
completion, within 12 months of the expiration of the stay pending appeal
set forth in section 6.a., of the following steps:
i. The separation of the Operating Systems Business
from the Applications Business, and the transfer of the assets of
one of them (the "Separated Business") to a separate entity along
with (a) all personnel, systems, and other tangible and intangible
assets (including Intellectual Property) used to develop, produce,
distribute, market, promote, sell, license and support the products
and services of the Separated Business, and (b) such other assets
as are necessary to operate the Separated Business as an independent
and economically viable entity.
ii. Intellectual Property that
is used both in a product developed, distributed, or sold by the
Applications Business and in a product developed, distributed, or
sold by the Operating Systems Business as of April 27, 2000, shall
be assigned to the Applications Business, and the Operating Systems
Business shall be granted a perpetual, royalty-free license to license
and distribute such Intellectual Property in its products, and,
except with respect to such Intellectual Property related to the
Internet browser, to develop, license and distribute modified or
derivative versions of such Intellectual Property, provided that
the Operating Systems Business does not grant rights to such versions
to the Applications Business. In the case of such Intellectual Property
that is related to the Internet browser, the license shall not grant
the Operating Systems Business any right to develop, license, or
distribute modified or derivative versions of the Internet browser.
iii. The transfer of ownership of
the Separated Business by means of a distribution of stock of the
Separated Business to Non-Covered Shareholders of Microsoft, or by
other disposition that does not result in a Covered Shareholder owning
stock in both the Separated Business and the Remaining Business.
d. Until Implementation of the Plan,
Microsoft shall:
i. preserve, maintain, and operate the Operating
Systems Business and the Applications Business as ongoing, economically
viable businesses, with management, sales, products, and operations
of each business held as separate, distinct and apart from one another
as they were on April 27, 2000, except to provide the accounting,
management, and information services or other necessary support functions
provided by Microsoft prior to the entry of this Final Judgment;
ii. use all reasonable efforts to
maintain and increase the sales and revenues of both the products
produced or sold by the Operating Systems Business and those produced
or sold by the Applications Business prior to the Implementation of
the Plan and to support research and development and business development
efforts of both the Operating Systems Business and the Applications
Business;
iii. take no action that undermines,
frustrates, interferes with, or makes more difficult the divestiture
required by this Final Judgment without the prior approval of the
Court; and
iv. file a report with the Court
90 days after entry of this Final Judgment on the steps Microsoft
has taken to comply with the requirements of this section 1.d.
2. Provisions Implementing Divestiture
a. After Implementation of the Plan, and throughout
the term of this Final Judgment, neither the Operating Systems Business
nor the Applications Business, nor any member of their respective Boards
of Directors, shall acquire any securities or assets of the other Business;
no Covered Shareholder holding securities of either the Operating Systems
Business or the Applications Business shall acquire any securities or
assets of or shall be an officer, director, or employee of the other
Business; and no person who is an officer, director, or employee of
the Operating Systems Business or the Applications Business shall be
an officer, director, or employee of the other Business.
b. After Implementation of the Plan
and throughout the term of this Final Judgment, the Operating Systems
Business and the Applications Business shall be prohibited from:
i. merging or otherwise recombining, or entering
into any joint venture with one another;
ii. entering into any Agreement
with one another under which one of the Businesses develops, sells,
licenses for sale or distribution, or distributes products or services
(other than the technologies referred to in the following sentence)
developed, sold, licensed, or distributed by the other Business;
iii. providing to the other any
APIs, Technical Information, Communications Interfaces, or technical
information that is not simultaneously published, disclosed, or made
readily available to ISVs, IHVs, and OEMs; and
iv. licensing, selling or otherwise
providing to the other Business any product or service on terms more
favorable than those available to any similarly situated third party.
Section 2.b.ii shall not prohibit the Operating Systems
Business and the Applications Business from licensing technologies
(other than Middleware Products) to each other for use in each others'
products or services provided that such technology (i) is not and
has not been separately sold, licensed, or offered as a product, and
(ii) is licensed on terms that are otherwise consistent with this
Final Judgment.
c. Three months after Implementation
of the Plan and once every three months thereafter throughout the term
of this Final Judgment, the Operating Systems Business and the Applications
Business shall file with the Plaintiffs a copy of each Agreement (and
a memorandum describing each oral Agreement) entered into between them.
d. Throughout the term of this Final
Judgment, Microsoft, the Operating Systems Business and the Applications
Business shall be prohibited from taking adverse action against any
person or entity in whole or in part because such person or entity provided
evidence in this case.
e. The obligations and restrictions
set forth in sections 3 and 4 herein shall, after the Implementation
of the Plan, apply only to the Operating Systems Business.
3. Provisions In Effect Until Full Implementation
of the Plan of Divestiture . The provisions in this section 3 shall remain
in effect until the earlier of three years after the Implementation of
the Plan or the expiration of the term of this Final Judgment.
a. OEM Relations.
i. Ban on Adverse Actions for Supporting Competing
Products. Microsoft shall not take or threaten any action adversely
affecting any OEM (including but not limited to giving or withholding
any consideration such as licensing terms; discounts; technical, marketing,
and sales support; enabling programs; product information; technical
information; information about future plans; developer tools or developer
support; hardware certification; and permission to display trademarks
or logos) based directly or indirectly, in whole or in part, on any
actual or contemplated action by that OEM:
(1) to use, distribute, promote, license, develop,
produce or sell any product or service that competes with any Microsoft
product or service; or
(2) to exercise any of the options
or alternatives provided under this Final Judgment.
ii. Uniform Terms for Windows Operating
System Products Licensed to Covered OEMs. Microsoft shall license
Windows Operating System Products to Covered OEMs pursuant to uniform
license agreements with uniform terms and conditions and shall not
employ market development allowances or discounts in connection with
Windows Operating System Products. Without limiting the foregoing,
Microsoft shall charge each Covered OEM the applicable royalty for
Windows Operating System Products as set forth on a schedule, to be
established by Microsoft and published on a Web site accessible to
plaintiffs and all Covered OEMs , that provides for uniform royalties
for Windows Operating System Products, except that -
(1) the schedule may specify different royalties
for different language versions, and
(2) the schedule may specify reasonable
volume discounts based upon actual volume of total shipments of
Windows Operating System Products.
Without limiting the foregoing, Microsoft shall
afford Covered OEMs equal access to licensing terms; discounts;
technical, marketing, and sales support; product information; technical
information; information about future plans; developer tools or
developer support; hardware certification; and permission to display
trademarks or logos. The foregoing requirement insofar as it relates
to access to technical information and information about future
plans shall not apply to any bona fide joint development effort
by Microsoft and a Covered OEM with respect to confidential matters
within the scope of that effort. Microsoft shall not terminate a
Covered OEM's license for a Windows Operating System Product without
having first given the Covered OEM written notice of the reason
for the proposed termination and not less than thirty days' opportunity
to cure. Microsoft shall not enforce any provision in any Agreement
with a Covered OEM that is inconsistent with this Final Judgment.
iii. OEM Flexibility in Product
Configuration. Microsoft shall not restrict (by contract or otherwise,
including but not limited to granting or withholding consideration)
an OEM from modifying the boot sequence, startup folder, internet
connection wizard, desktop, preferences, favorites, start page, first
screen, or other aspect of a Windows Operating System Product to -
(1) include a registration sequence to obtain
subscription or other information from the user;
(2) display icons of or otherwise
feature other products or services, regardless of the size or shape
of such icons or features, or to remove the icons, folders, start
menu entries, or favorites of Microsoft products or services;
(3) display any user interfaces,
provided that an icon is also displayed that allows the user to
access the Windows user interface; or
(4) launch automatically any non-Microsoft
Middleware, Operating System or application, offer its own Internet
access provider or other start-up sequence, or offer an option to
make non-Microsoft Middleware the Default Middleware and to remove
the means of End-User Access for Microsoft's Middleware Product.
b. Disclosure of APIs, Communications
Interfaces and Technical Information. Microsoft shall disclose to
ISVs, IHVs, and OEMs in a Timely Manner, in whatever media Microsoft
disseminates such information to its own personnel, all APIs, Technical
Information and Communications Interfaces that Microsoft employs to
enable -
i. Microsoft applications to interoperate with Microsoft
Platform Software installed on the same Personal Computer, or
ii. a Microsoft Middleware Product
to interoperate with Windows Operating System software (or Middleware
distributed with such Operating System) installed on the same Personal
Computer, or
iii. any Microsoft software installed
on one computer (including but not limited to server Operating Systems
and operating systems for handheld devices) to interoperate with a
Windows Operating System (or Middleware distributed with such Operating
System) installed on a Personal Computer.
To facilitate compliance, and monitoring of compliance,
with the foregoing, Microsoft shall create a secure facility where
qualified representatives of OEMs, ISVs, and IHVs shall be permitted
to study, interrogate and interact with relevant and necessary portions
of the source code and any related documentation of Microsoft Platform
Software for the sole purpose of enabling their products to interoperate
effectively with Microsoft Platform Software (including exercising
any of the options in section 3.a.iii).
c. Knowing Interference with Performance.
Microsoft shall not take any action that it knows will interfere with
or degrade the performance of any non-Microsoft Middleware when interoperating
with any Windows Operating System Product without notifying the supplier
of such non-Microsoft Middleware in writing that Microsoft intends to
take such action, Microsoft's reasons for taking the action, and any
ways known to Microsoft for the supplier to avoid or reduce interference
with, or the degrading of, the performance of the supplier's Middleware.
d. Developer Relations. Microsoft
shall not take or threaten any action affecting any ISV or IHV (including
but not limited to giving or withholding any consideration such as licensing
terms; discounts; technical, marketing, and sales support; enabling
programs; product information; technical information; information about
future plans; developer tools or developer support; hardware certification;
and permission to display trademarks or logos) based directly or indirectly,
in whole or in part, on any actual or contemplated action by that ISV
or IHV to -
i. use, distribute, promote or support any Microsoft
product or service, or
ii. develop, use, distribute, promote
or support software that runs on non-Microsoft Middleware or a non-Microsoft
Operating System or that competes with any Microsoft product or service,
or
iii. exercise any of the options
or alternatives provided under this Final Judgment.
e. Ban on Exclusive Dealing. Microsoft
shall not enter into or enforce any Agreement in which a third party
agrees, or is offered or granted consideration,
to -
i. restrict its development, production,
distribution, promotion or use of, or payment for, any non-Microsoft
Platform Software,
ii. distribute, promote or use any
Microsoft Platform Software exclusively,
iii. degrade the performance of
any non-Microsoft Platform Software, or
iv. in the case of an agreement
with an Internet access provider or Internet content provider, distribute,
promote or use Microsoft software in exchange for placement with respect
to any aspect of a Windows Operating System Product.
f. Ban on Contractual Tying. Microsoft
shall not condition the granting of a Windows Operating System Product
license, or the terms or administration of such 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,
whether or not for a separate or positive price.
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:
i. 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.
h. Agreements Limiting Competition.
Microsoft shall not offer, agree to provide, or provide any consideration
to any actual or potential Platform Software competitor in exchange
for such competitor's agreeing to refrain or refraining in whole or
in part from developing, licensing, promoting or distributing any Operating
System Product or Middleware Product competitive with any Windows Operating
System Product or Middleware Product.
i. Continued Licensing of Predecessor
Version. Microsoft shall, when it makes a major Windows Operating System
Product release (such as Windows 95, OSR 2.0, OSR 2.5, Windows 98, Windows
2000 Professional, Windows "Millennium," "Whistler," "Blackcomb," and
successors to these), continue for three years after said release to
license on the same terms and conditions the previous Windows Operating
System Product to any OEM that desires such a license. The net royalty
rate for the previous Windows Operating System Product shall be no more
than the average royalty paid by the OEM for such Product prior to the
release. The OEM shall be free to market Personal Computers in which
it preinstalls such an Operating System Product in the same manner in
which it markets Personal Computers preinstalled with other Windows
Operating System Products.
4. Internal Antitrust Compliance. This
section shall remain in effect throughout the term of this Final Judgment,
provided that, consistent with section 2.e, this section shall not apply
to the Applications Business after the Implementation of the Plan.
a. Within 90 days after the effective date of this
Final Judgment, Microsoft shall establish a Compliance Committee of
its corporate Board of Directors, consisting of not fewer than three
members of the Board of Directors who are not present or former employees
of Microsoft.
b. The Compliance Committee shall
hire a Chief Compliance Officer, who shall report directly to the Compliance
Committee and to the Chief Executive Officer of Microsoft.
c. The Chief Compliance Officer shall
be responsible for development and supervision of Microsoft's internal
programs to ensure compliance with the antitrust laws and this Final
Judgment.
d. Microsoft shall give the Chief
Compliance Officer sufficient authority and resources to discharge the
responsibilities listed herein.
e. The Chief Compliance Officer shall:
i. within 90 days after entry of this Final Judgment,
cause to be delivered to each Microsoft officer, director, and Manager,
and each platform software developer and employee involved in relations
with OEMs, ISVs, or IHVs, a copy of this Final Judgment together with
additional informational materials describing the conduct prohibited
and required by this Final Judgment;
ii. distribute in a timely manner
a copy of this Final Judgment and such additional informational materials
to any person who succeeds to a position of officer, director, or
Manager, or platform software developer or employee involved in relations
with OEMs, ISVs or IHVs;
iii. obtain from each officer, director,
and Manager, and each platform software developer and employee involved
in relations with OEMs, ISVs or IHVs, within 90 days of entry of this
Final Judgment, and for each person thereafter succeeding to such
a position within 5 days of such succession, a written certification
that he or she:
(1) has read, understands, and
agrees to abide by the terms of this Final Judgment; and
(2) has been advised and understands
that his or her failure to comply with this Final Judgment may result
in conviction for criminal contempt of court;
iv. maintain a record of persons
to whom this Final Judgment has been distributed and from whom, pursuant
to Section 4.e.iii, such certifications have been obtained;
v. establish and maintain a means
by which employees can report potential violations of this Final Judgment
or the antitrust laws on a confidential basis; and
vi. report immediately to Plaintiffs
and the Court any violation of this Final Judgment.
f. The Chief Compliance Officer may
be removed only by the Chief Executive Officer with the concurrence
of the Compliance Committee.
g. Microsoft shall, with the supervision
of the Chief Compliance Officer, maintain for a period of at least four
years the e-mail of all Microsoft officers, directors and managers engaged
in software development, marketing, sales and developer relations related
to Platform Software.
5. Compliance Inspection. This section
shall remain in effect throughout the term of this Final Judgment.
a. For purposes of determining or securing implementation
of or compliance with this Final Judgment, including the provisions
requiring a plan of divestiture, or determining whether this Final Judgment
should be modified or vacated, and subject to any legally recognized
privilege, from time to time:
i. Duly authorized representatives of a Plaintiff,
upon the written request of the Assistant Attorney General in charge
of the Antitrust Division of the United States Department of Justice,
or the Attorney General of a Plaintiff State, as the case may be,
and on reasonable notice to Microsoft made to its principal office,
shall be permitted:
(1) Access during office hours to inspect and copy or, at Plaintiffs'
option, demand Microsoft provide copies of all books, ledgers, accounts,
correspondence, memoranda, source code, and other records and documents
in the possession or under the control of Microsoft (which may have
counsel present), relating to the matters contained in this Final
Judgment; and
(2) Subject to the reasonable convenience
of Microsoft and without restraint or interference from it, to interview,
either informally or on the record, its officers, employees, and
agents, who may have their individual counsel present, regarding
any such matters.
ii. Upon the written request of
the Assistant Attorney General in charge of the Antitrust Division
of the United States Department of Justice, or the Attorney General
of a Plaintiff State, as the case may be, made to Microsoft at its
principal offices, Microsoft shall submit such written reports, under
oath if requested, as may be requested with respect to any matter
contained in this Final Judgment.
iii. No information or documents
obtained by the means provided in this section shall be divulged by
a representative of a Plaintiff to any person other than a duly authorized
representative of a Plaintiff, except in the course of legal proceedings
to which the Plaintiff is a party (including grand jury proceedings),
or for the purpose of securing compliance with this Final Judgment,
or as otherwise required by law.
iv. If at the time information or
documents are furnished by Microsoft to a Plaintiff, Microsoft represents
and identifies in writing the material in any such information or
documents to which a claim of protection may be asserted under Rule
26(c)(7) of the Federal Rules of Civil Procedure, and Microsoft marks
each pertinent page of such material, "Subject to claim of protection
under Rule 26(c)(7) of the Federal Rules of Civil Procedure," then
10 calendar days notice shall be given by a Plaintiff to Microsoft
prior to divulging such material in any legal proceeding (other than
a grand jury proceeding) to which Microsoft is not a party.
6. Effective Date, Term, Retention of
Jurisdiction, Modification.
a. This Final Judgment shall take effect 90 days after
the date on which it is entered; provided, however that sections 1.b
and 2 (except 2.d) shall be stayed pending completion of any appeals
from this Final Judgment.
b. Except as provided in section 2.e,
the provisions of this Final Judgment apply to Microsoft as defined
in section 7.o of this Final Judgment.
c. This Final Judgment shall expire
at the end of ten years from the date on which it takes effect.
d. The Court may act sua sponte
to issue orders or directions for the construction or carrying out of
this Final Judgment, for the enforcement of compliance therewith, and
for the punishment of any violation thereof.
e. Jurisdiction is retained by this
Court for the purpose of enabling any of the parties to this Final Judgment
to apply to this Court at any time for such further orders or directions
as may be necessary or appropriate for the construction or carrying
out of this Final Judgment, for the modification of any of the provisions
hereof, for the enforcement of compliance herewith, and for the punishment
of any violation hereof.
f. In accordance with the Court's
Conclusions of Law, the plaintiff States shall submit a motion for costs
and fees, with supporting documents as necessary, no later than 45 days
after the entry of this Final Judgment.
7. Definitions.
a. "Agreement" means any agreement, arrangement, alliance,
understanding or joint venture, whether written or oral.
b. "Application Programming Interfaces
(APIs)" means the interfaces, service provider interfaces, and protocols
that enable a hardware device or an application, Middleware, or server
Operating System to obtain services from (or provide services in response
to requests from) Platform Software in a Personal Computer and to use,
benefit from, and rely on the resources, facilities, and capabilities
of such Platform Software.
c. "Applications Business" means all
businesses carried on by Microsoft Corporation on the effective date
of this Final Judgment except the Operating Systems Business. Applications
Business includes but is not limited to the development, licensing,
promotion, and support of client and server applications and Middleware
(e.g., Office, BackOffice, Internet Information Server, SQL Server,
etc.), Internet Explorer, Mobile Explorer and other Web browsers, Streaming
Audio and Video client and server software, transaction server software,
SNA server software, indexing server software, XML servers and parsers,
Microsoft Management Server, Java virtual machines, Frontpage Express
(and other web authoring tools), Outlook Express (and other e-mail clients),
Media player, voice recognition software, Net Meeting (and other collaboration
software), developer tools, hardware, MSN, MSNBC, Slate, Expedia, and
all investments owned by Microsoft in partners or joint venturers, or
in ISVs, IHVs, OEMs or other distributors, developers, and promoters
of Microsoft products, or in other information technology or communications
businesses.
d. "Bind" means to include a product
in an Operating System Product in such a way that either an OEM or an
end user cannot readily remove or uninstall the product.
e. "Business" means the Operating
Systems Business or the Applications Business.
f. "Communications Interfaces" means
the interfaces and protocols that enable software installed on other
computers (including servers and handheld devices) to interoperate with
the Microsoft Platform Software on a Personal Computer.
g. "Covered OEM" means one of the
20 OEMs with the highest volume of licenses of Windows Operating System
Products from Microsoft in the calendar year preceding the effective
date of the Final Judgment. At the beginning of each year, starting
on January 1, 2002, Microsoft shall redetermine the Covered OEMs for
the new calendar year, based on sales volume during the preceding calendar
year.
h. "Covered Shareholder" means a shareholder
of Microsoft on the date of entry of this Final Judgment who is a present
or former employee, officer or director of Microsoft and who owns directly
or beneficially more than 5 percent of the voting stock of the firm.
i. "Default Middleware" means Middleware
configured to launch automatically (that is, by "default") to provide
particular functionality when other Middleware has not been selected
for this purpose. For example, a default browser is Middleware configured
to launch automatically to display Web pages transmitted over the Internet
or an intranet that bear the .htm extension, when other software has
not been selected for this purpose.
j. "End-User Access" means the invocation
of Middleware directly or indirectly by an end user of a Personal Computer
or the ability of such an end user to invoke Middleware. "End-User Access"
includes invocation of Middleware by end users which is compelled by
the design of the Operating System Product.
k. "IHV" means an independent hardware
vendor that develops hardware to be included in or used with a Personal
Computer.
l. "Implementation of the Plan" means
full completion of all of the steps described in section 1.c.
m. "Intellectual Property" means copyrights,
patents, trademarks and trade secrets used by Microsoft or licensed
by Microsoft to third parties.
n. "ISV" means any entity other than
Microsoft (or any subsidiary, division, or other operating unit of any
such other entity) that is engaged in the development and licensing
(or other marketing) of software products intended to interoperate with
Microsoft Platform Software.
o. "Manager" means a Microsoft employee
who is responsible for the direct or indirect supervision of more than
100 other employees.
p. "Microsoft" means Microsoft Corporation,
the Separated Business, the Remaining Business, their successors and
assigns (including any transferee or assignee of any ownership rights
to, control of, or ability to license the patents referred to in this
Final Judgment), their subsidiaries, affiliates, directors, officers,
managers, agents, and employees, and all other persons in active concert
or participation with any of them who shall have received actual notice
of this Final Judgment by personal service or otherwise.
q. "Middleware" means software that
operates, directly or through other software, between an Operating System
and another type of software (such as an application, a server Operating
System, or a database management system) by offering services via APIs
or Communications Interfaces to such other software, and could, if ported
to or interoperable with multiple Operating Systems, enable software
products written for that Middleware to be run on multiple Operating
System Products. Examples of Middleware within the meaning of this Final
Judgment include Internet browsers, e-mail client software, multimedia
viewing software, Office, and the Java Virtual Machine. Examples of
software that are not Middleware within the meaning of this Final Judgment
are disk compression and memory management.
r. "Middleware Product" means
i. Internet browsers, e-mail client software, multimedia
viewing software, instant messaging software, and voice recognition
software, or
ii. software distributed by Microsoft
that -
(1) is, or has in the applicable preceding year
been, distributed separately from an Operating System Product in
the retail channel or through Internet access providers, Internet
content providers, ISVs or OEMs, and
(2) provides functionality similar
to that provided by Middleware offered by a competitor to Microsoft.
s. "Non-Covered Shareholder" means
a shareholder of Microsoft on the record date for the transaction that
effects the transfer of ownership of the Separated Business under Section
1.c.iii who is not a Covered Shareholder on the date of entry of this
Final Judgment.
t. "OEM" means the manufacturer or
assembler of a personal computer.
u. "Operating System" means the software
that controls the allocation and usage of hardware resources (such as
memory, central processing unit time, disk space, and peripheral devices)
of a computer, providing a "platform" by exposing APIs that applications
use to "call upon" the Operating System's underlying software routines
in order to perform functions.
v. "Operating System Product" means
an Operating System and additional software shipped with the Operating
System, whether or not such additional software is marketed for a positive
price. An Operating System Product includes Operating System Product
upgrades that may be distributed separately from the Operating System
Product.
w. "Operating Systems Business" means
the development, licensing, promotion, and support of Operating System
Products for computing devices including but not limited to (i) Personal
Computers, (ii) other computers based on Intel x86 or competitive microprocessors,
such as servers, (iii) handheld devices such as personal digital assistants
and cellular telephones, and (iv) television set-top boxes.
x. "Personal Computer" means any
computer configured so that its primary purpose is to be used by
one person at a time, that uses a video display and keyboard (whether
or not the video display and keyboard are actually included), and that
contains an Intel x86, successor, or competitive microprocessor, and
computers that are commercial substitutes for such computers.
y. "Plaintiff" means the United States
or any of the plaintiff States in this action.
z. "Plan" means the final plan of
divestiture approved by the Court.
aa. "Platform Software" means an Operating
System or Middleware or a combination of an Operating System and Middleware.
bb. "Remaining Business" means whichever
of the Operating Systems Business and the Applications Businesses is
not transferred to a separate entity pursuant to the Plan.
cc. "Separated Business" means whichever
of the Operating Systems Business and the Applications Businesses is
transferred to a separate entity pursuant to the Plan.
dd. "Technical Information" means
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.
ee. "Timely Manner": disclosure of
APIs, Technical Information and Communications Interfaces in a timely
manner means, at a minimum, publication on a Web site accessible by
ISVs, IHVs, and OEMs at the earliest of the time that such APIs, Technical
Information, or Communications Interfaces are (1) disclosed to Microsoft's
applications developers, (2) used by Microsoft's own 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.
ff. "Windows Operating System Product"
means software code (including source code and binary code, and any
other form in which Microsoft distributes its Windows Operating Systems
for Personal Computers) of Windows 95, Windows 98, Windows 2000 Professional,
and their successors, including the Windows Operating Systems for Personal
Computers codenamed "Millennium," "Whistler," and "Blackcomb," and their
successors.
_____________________
Thomas Penfield Jackson
U.S. District Judge
1. Definitions of capitalized terms
are set forth in section 7, below.
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