By Samuel Noah Weinstein
Microsoft’s Windows operating system is the sun in the solar system
of the information economy. With tens of millions of users worldwide,
Windows is the most significant platform for continued software innovation.
As Windows has matured, its interoperability has increased. Functions
once considered distinct, such as disk de-fragmentation and memory
management, have become part of the Windows system. While this interoperability
offers advantages to consumers, it also raises serious antitrust
concerns. The most pressing worry is that Microsoft will use its monopoly
power in operating systems to quash innovation in other software markets
by “integrating” formerly competitive functions into Windows. This tension,
between the advantages of interoperability and the threat to competition,
was at the core of the D.C. Circuit’s decision in United States v. Microsoft.
The verdict in this case was much anticipated. This anticipation grew
both out of Microsoft’s unique position in the American economy, and out
of a desire to see a clear resolution of the complicated antitrust issues implicated
in the case. As to Microsoft’s fate, despite some press reports
painting the decision as a victory for the software king, 2 the holding was a
mixed result. Although the circuit court overturned both the breakup remedy
and tying liability, remanding both for reconsideration, it firmly upheld
liability for monopolization under section 2 of the Sherman Act.3 Microsoft’s
real victories may have come later, when the Department of Justice
announced that it would drop the tying charge and no longer pursue
the breakup of the company,4 and in the settlement agreement.5
© 2002 Berkeley Technology Law Journal ; Berkeley Center for Law and Technology.
1. United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (“Microsoft Il”).
For the sake of convenience, this Note refers to the 1998 D.C. Circuit decision as “Microsoft
H.” The more recent Microsoft litigation, encompassing both the 2000 district court
decision and the 2001 D.C. Circuit decision, is referred to as “Microsoft IL” “Microsoft
I,” the consent decree decision of 1995, plays only a minor role in this Note.
2. See, e.g., Microsoft Marches On, S.F. CHRON., June 29, 2001, at A24; John
Hendren, Microsoft Ducks Bullet, Again Talks About Deal, SEATLE TIMES, June 29,
2001, at Al.
3. United States v. Microsoft Corp., 253 F.3d at 51.
4. Justice Department Informs Microsoft of Plans for Further Proceedings in the
District Court, http://www.usdoj.gov/atr/public/pressreleases/2001/8981.htm (Sept. 6,


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