Welcome to the Department of Justice, Iowa Attorney General Tom Miller

For immediate release - Monday, June 10, 2002.

Contact Bob Brammer - 515-281-6699.

Statement of Iowa Attorney General Tom Miller on Litigating States' Filing in Microsoft Case

(Tom Miller is Chair of the Working Group of the Attorney Generals' Microsoft Litigating States)

DES MOINES. Today we are filing Proposed Findings of Fact and Proposed Conclusions of Law. These documents lay out in detail the strong case the Litigating States have presented to the Court in this final remedies phase of the Microsoft trial.

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 future.

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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