The filing gives the Court a powerful foundation for ordering injunctive relief necessary to repair the systematic harm that
Microsoft has inflicted upon consumers and competition in the computer software industry. We are very pleased with the
solid factual and legal framework these documents provide to the Court as it crafts a remedy which will stop Microsoft's
practices already found to be illegal under antitrust laws by both a federal district trial court and the United States Court of
Appeals. Our objective is to restore meaningful competition for consumers in America's computer software marketplace.
The Proposed Findings of Fact, totaling some 520 pages, combines the factual Findings of Judge Thomas Penfield Jackson
in the 76-day liability trial and additional evidence presented during the 32-day remedies hearing before Judge Colleen
Kollar-Kotelly. The Proposed Findings comprehensively catalog a continuing series of illegal anti-competitive acts by
Microsoft which had -- and have -- the purpose and effect of unlawfully maintaining Microsoft's monopoly in personal
computer operating systems.
During the initial liability trial, the Court found that Microsoft consistently violated antitrust law. Many of the same
Microsoft executives continue to set policy today. The evidence and our filing today in the remedy phase show that
Microsoft policies continue to raise barriers to entry, restrain operation of a free and open market in operating system
software and related products, restrict consumer choice, and inhibit innovation.
Under the standards articulated by the Court of Appeals, the Court now must order remedies that will: (i) unfetter the
market from Microsoft's unlawful conduct, (ii) terminate Microsoft's illegal monopoly power, (iii) deny to Microsoft the
fruits of its illegal conduct, and (iv) ensure that no practices remain which are likely to result in monopolization in the
To accomplish these objectives, the Litigating States' proposed remedies are forward-looking. They seek to prevent the
same or similar types of illegal conduct engaged in previously by Microsoft, such as commingling code and a variety of
other actions designed to hobble technologies which currently have the best prospect of developing into platform
alternatives to Windows. The remedies also would properly extend injunctive relief beyond the operating system to server-based computing, web services, set-top boxes, hand-held devices, and various forms of middleware.
In today's filing, we give the Court clear reasons why Microsoft's proposed remedies fail to satisfy the Court of Appeals'
criteria for a thorough and responsive remedy. For example, Microsoft's proposal has no provision that even purports to
prohibit certain specific anti-competitive acts condemned by the Court of Appeals, such as commingling of software code.
Indeed, the Microsoft remedy proposal specifically authorizes commingling by way of a definition (Section V.U.) This
omission is especially striking since, as the record establishes, Microsoft not only has failed to stop this practice, but has
further commingled code for its operating system software with its web browser and has commingled code for its media
player, even after the Court of Appeals decision found such commingling to be anti-competitive.
Most important, Microsoft's remedy proposal fails to prevent even those anti-competitive acts which were specifically
proscribed by the Court of Appeals, because it is riddled with exceptions, unduly narrow definitions, and other loopholes.
Moreover, Microsoft's proposal is so limited and backward-looking that it would not prevent practices similar to those held
unlawful by the Court of Appeals -- and would have little or no effect in today's marketplace.
Rather than crippling Microsoft's incentives to compete and innovate, the Litigating
States' proposed remedies actually will serve to increase market incentives
for competition and innovation.
Our filing today offers a vital framework for the trial court judge as she
considers what remedy to order to curtail Microsoft's illegal conduct.
The filing lays a foundation for a ruling that is consistent with the
requirements established by the Court of Appeals to unfetter the market,
terminate Microsoft's illegal monopoly power, deny Microsoft the benefits
of its illegal activities, and ensure that Microsoft can no longer engage
in unlawful anti-competitive practices.
END OF STATEMENT
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