1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA,
:
:
PLAINTIFF,
:
:
V.
: C.A. NO. 98-1232
:
MICROSOFT CORPORATION,
:
:
DEFENDANT.
:
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STATE OF NEW YORK, ET AL.,
:
:
PLAINTIFFS,
:
:
V.
: C.A. NO. 98-1233
:
MICROSOFT CORPORATION,
:
:
DEFENDANT.
:
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MICROSOFT CORPORATION,
:
:
COUNTERCLAIM-PLAINTIFF, :
:
V.
:
:
DENNIS C. VACCO, ET AL.,
:
:
COUNTERCLAIM-DEFENDANTS. :
- - - - - - - - - - - - - - - - - -X WASHINGTON, D.C.
MAY 24, 2000
2:00 P.M.
(P.M. SESSION)
VOLUME 79
TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE THOMAS P. JACKSON
UNITED STATES DISTRICT JUDGE
2
FOR THE PLAINTIFFS:
DAVID BOIES, ESQ.
PHILLIP R. MALONE, ESQ.
DOUGLAS MELAMED, ESQ.
JOHN COVE, ESQ.
ANTITRUST DIVISION
U.S. DEPARTMENT OF JUSTICE
P.O. BOX 36046
SAN FRANCISCO, CA 94102
FOR THE DEFENDANT:
JOHN L. WARDEN, ESQ.
STEVEN L. HOLLEY, ESQ.
RICHARD C. PEPPERMAN, II, ESQ.
THEODORE EDELMAN, ESQ.
RICHARD J. UROWSKY, ESQ.
MICHAEL LACOVARA, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NY 10004
WILLIAM H. NEUKOM, ESQ.
DAVID A. HEINER, ESQ.
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052-6399
COURT REPORTER:
DAVID A. KASDAN, RMR, CRR
MILLER REPORTING CO., INC.
507 C STREET, N.E.
WASHINGTON, D.C. 20003
(202) 546-6666
3
INDEX
PAGE
REBUTTAL ARGUMENT BY MR. BOIES
8
REBUTTAL ARGUMENT BY MR. WARDEN
28
4
1
2
P R O C E E D I N G S
THE COURT:
MR. BOIES, BEFORE YOU START, THERE
3
ARE SEVERAL POINTS MADE IN THE AMICUS BRIEF OF THE
4
COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION AND
5
SOFTWARE AND INFORMATION INDUSTRY ASSOCIATION THAT I WOULD
6
LIKE BOTH YOU AND MR. WARDEN TO ADDRESS AT SOME POINT, AND
7
IF YOU WANT TO RECESS AND WANT TO REFLECT ON THEM, WE
8
COULD CERTAINLY DO THAT.
9
MR. WARDEN, ON PAGE 18 OF THAT BRIEF, THERE IS A
10
QUOTATION, OR AT LEAST A PROPOSITION, FOR WHICH
11
MR. BALLMER IS CITED AS THE SOURCE, AND THAT READS AT THE
12
BOTTOM OF THE SECOND FULL PARAGRAPH, OR THE FIRST FULL
13
PARAGRAPH, "INDEED, 40 PERCENT OF THE FUNCTIONALITY OF THE
14
DESKTOP VERSION OF WINDOWS 2000 IS USELESS WITHOUT A
15
WINDOWS 2000 SERVER."
16
COMMENT ON THAT, IF YOU WILL, AT SOME POINT.
17
AND I WOULD LIKE TO HAVE YOU
THEN ON PAGE 35 AND FOOTNOTE 11, THE AMICUS BRIEF
18
ALLUDES TO SECTION 3(I) OF THE PROPOSED FINAL JUDGMENT TO
19
THE EFFECT THAT IT REQUIRES MICROSOFT, UPON ANY NEW
20
OPERATING SYSTEM TEMPORARY REQUIREMENT--UPON ANY NEW
21
OPERATING SYSTEM RELEASE, TO KEEP THE IMMEDIATELY PRIOR
22
VERSION OF WINDOWS AVAILABLE AT AN UNCHANGED PRICE.
23
SUGGESTION IS IF THAT TEMPORARY REQUIREMENT ALSO WERE
24
EXTENDED TO OFFICE AND TO LICENSEES OTHER THAN OEM'S, BOTH
25
MICROSOFT'S SUCCESSOR COMPANIES WOULD BE COMPETING
THE
5
1
SUFFICIENTLY AGAINST THEMSELVES TO RESTRAIN PRICE
2
INCREASES.
3
AND THEN AGAIN ON PAGE 56, THE AMICUS BRIEF
4
SUGGESTS THAT AS AN ALTERNATIVE TO MAKING--TO ESTABLISHING
5
A THIRD COMPANY MARKETING ONLY THE INTERNET EXPLORER, THE
6
ALTERNATIVE SUGGESTION WOULD BE TO REQUIRE IN THE DECREE A
7
PROVISION THAT WOULD REQUIRE THAT THE INTERNET EXPLORER BE
8
LICENSED ON AN OPEN-SOURCE BASIS AT ZERO ROYALTY.
9
AND THEN FINALLY, WITH RESPECT TO YOUR ALLUSION
10
TO TRADITIONAL EQUITABLE REMEDIES, MR. WARDEN, YOU
11
INDICATED THAT CERTAIN PROVISIONS REPRESENTED A
12
CONFISCATION OF INTELLECTUAL PROPERTY RIGHTS BELONGING TO
13
MICROSOFT, AND I ASK YOU IF FORFEITURE IS NOT A
14
TRADITIONAL EQUITABLE REMEDY.
15
THAT SAID, I'M PREPARED TO HEAR FROM BOTH OF YOU,
16
AND AS I SAY, I WILL ALLOW YOU ANY ADDITIONAL TIME YOU
17
WANT TO RESPOND TO MY QUESTIONS TO CONFER WITH YOUR
18
COLLEAGUES.
19
PREROGATIVE.
20
21
AND IF YOU CHOOSE NOT TO RESPOND, THAT'S YOUR
MR. BOIES:
YOUR HONOR, I WILL PROCEED, AND
MR. WARDEN HAS INDICATED HE WILL RESPOND AFTERWARDS.
22
THE COURT:
ALL RIGHT.
23
MR. BOIES:
WITH RESPECT TO THE FIRST ISSUE
24
RAISED BY THE COURT IN TERMS OF THE EXTENT TO WHICH 40
25
PERCENT OF WINDOWS NEEDS THE SERVER, THAT IS SOMETHING
6
1
THAT I THINK MR. WARDEN IS PROBABLY GOING TO RESPOND TO.
2
3
I THINK IT'S PROBABLY MR. WARDEN'S
MR. BOIES:
I ASSUME THAT MR. BALLMER WAS TELLING
RESPONSE.
4
5
THE COURT:
THE TRUTH WHEN HE SAID IT.
6
THE COURT:
WELL, I'M NOT SURE IF IT'S SUPPOSED
7
TO BE A QUOTE ATTRIBUTED TO MR. BALLMER OR IF IT'S
8
ATTRIBUTED TO SOMEONE ELSE.
9
10
MR. BOIES:
WHETHER OR NOT IT IS, I THINK
MR. WARDEN IS THE RIGHT PERSON TO ADDRESS THAT.
11
THE COURT:
I THINK MR. WARDEN CAN ADDRESS THAT.
12
MR. BOIES:
WITH RESPECT TO THE ISSUE OF A
13
SEPARATE COMPANY FOR INTERNET EXPLORER OR A SEPARATE
14
ROYALTY FREE LICENSING FOR INTERNET EXPLORER, THE PROPOSAL
15
THAT WE HAVE PUT FORWARD WOULD HAVE INTERNET EXPLORER IN
16
BOTH OF THE TWO COMPANIES, AND INTERNET EXPLORER IS
17
ALREADY--MICROSOFT, IN ORDER TO GET ITS TECHNOLOGIES USED,
18
HAS MADE IT WIDELY AVAILABLE.
19
THE COURT:
THEIR ROYALTY.
20
MR. BOIES:
EXACTLY.
SO, WE WOULD THINK IT WOULD
21
BE A RELATIVELY SMALL STEP TO DO THAT, AND I'M SURE THAT
22
THEY WOULD HAVE ANY OBJECTION TO DOING THAT, OR THEY
23
MIGHT.
24
ESSENTIAL FOR ACCOMPLISHING THE PURPOSES OF RESTORING
25
COMPETITION.
THAT IS NOT SOMETHING THAT WE HAD THOUGHT THAT WAS
7
1
2
THE COURT:
THE PROVISION IN 3(I) THAT REQUIRES A
CONTINUED ISSUANCE IN SUPPORT OF PRIOR VERSIONS?
3
MR. BOIES:
YES.
4
THE COURT:
AND ON IDENTICAL TERMS?
5
MR. BOIES:
ON IDENTICAL TERMS.
6
THE COURT:
TO JUST OEM'S OR TO ANY LICENSEE?
7
MR. BOIES:
I THINK IT SHOULD BE ANY LICENSEE.
8
THE COURT:
WELL, AT THE MOMENT, IT APPARENTLY
9
RUNS ONLY TO OEM'S.
10
MR. BOIES:
I THINK THAT'S RIGHT BECAUSE I THINK
11
WE WERE FOCUSING ON REALLY OEM'S AS THE PRIMARY LICENSEE,
12
BUT I THINK IN TERMS OF THE WINDOWS LICENSE, I THINK THE
13
AMICUS IS CORRECT, THAT IT SHOULD BE ANY LICENSEE.
14
THE COURT:
OKAY.
15
MR. BOIES:
WITH RESPECT TO THE SECOND HALF OF
16
THE COURT'S QUESTION WITH RESPECT TO OFFICE, I DON'T THINK
17
WE THINK THAT THE RECORD IS SUFFICIENT TO IMPOSE A
18
REQUIREMENT OF NOT ALLOWING AN INCREASE IN THE PRICE OF
19
OFFICE.
20
THE COURT:
OKAY.
21
MR. BOIES:
I THINK THERE ARE OBVIOUSLY SOME
22
ATTRACTIVE PROCOMPETITIVE ASPECTS TO IT, BUT I THINK OUR
23
VIEW IS HAVING THOUGHT ABOUT IT AND CONSULTED BRIEFLY
24
AFTER THE COURT RAISED THE QUESTION, WE DON'T THINK THAT
25
THE RECORD IN THIS CASE WOULD SUPPORT THAT.
8
1
2
THE COURT:
FAIR ENOUGH.
REBUTTAL ARGUMENT BY COUNSEL FOR PLAINTIFFS
3
MR. BOIES:
THIS MORNING, I INDICATED THAT THERE
4
WERE AT LEAST TEN EXAMPLES OF CONDUCT WHICH THE COURT HAD
5
FOUND ILLEGAL THAT MICROSOFT'S PROPOSED REMEDY WOULD NOT
6
ADDRESS.
7
TWO OF THE TEN.
8
HAS NOT CONTESTED IT.
9
MR. WARDEN HAS CONTESTED THAT WITH RESPECT TO
THAT IS, WITH RESPECT TO EIGHT OF THEM HE
WITH RESPECT TO THE TWO THAT HE HAS CONTESTED, HE
10
SAYS 6(B) PREVENTS DISCRIMINATION AGAINST ISV'S.
11
IF YOU LOOK AT 6(B) OF THE MICROSOFT PROPOSED REMEDY, WHAT
12
YOU SEE IS THAT MICROSOFT CANNOT CONDITION THE RELEASE OF
13
TECHNICAL INFORMATION ON ISV'S AGREEING NOT TO WRITE
14
PLATFORM SOFTWARE FOR APPLICATIONS FOR A PLATFORM SOFTWARE
15
TO COMPETE WITH ANY MICROSOFT SOFTWARE.
16
A PROVISO THAT MAY WEAKEN IT FURTHER.
17
HOWEVER,
AND THEN THERE'S
BUT THE MAIN POINT IS THAT THAT SAYS NOTHING AT
18
ALL ABOUT THE POINT I MADE THIS MORNING, WHICH IS THE
19
FIRST-WAVE AGREEMENTS SAY THAT IF YOU GET THIS EARLY
20
DISCLOSURE, YOU MUST WRITE MICROSOFT'S VERSION OF JAVA.
21
YOU MUST WRITE MICROSOFT'S BROWSER INTO YOUR PROGRAMS.
22
EVEN IF THEY'RE NOT PRECLUDED FROM ALSO WRITING SOMEBODY
23
ELSE'S MIDDLEWARE, BY REQUIRING THEM TO MAKE MICROSOFT'S
24
MIDDLEWARE UNIVERSAL, IT HAS EXACTLY THE SAME EFFECT THAT
25
THE COURT FOUND WITH RESPECT TO MICROSOFT'S REQUIREMENT
9
1
THAT ITS BROWSER BE UNIVERSAL.
IT DISCOURAGES PEOPLE,
2
EVEN THOUGH IT DOESN'T MAKE THEM AGREE NOT TO DO IT.
3
PRACTICAL EFFECT IS TO EXCLUDE THEM, AND THE PRACTICAL
4
EFFECT IS TO TIE ISV'S WRITING FOR MICROSOFT'S BROWSER,
5
MICROSOFT'S VERSION OF JAVA, MICROSOFT'S OTHER MIDDLEWARE,
6
TO ACCESS TO MICROSOFT'S MONOPOLY OPERATING SYSTEM.
THE
7
THE COURT:
OKAY.
8
MR. BOIES:
SO, THEIR PROPOSAL REALLY DOESN'T
9
ADDRESS WHAT WE WERE TALKING ABOUT AT ALL.
10
THE SECOND ACT THAT THEY SAID THEY HAD ADDRESSED
11
WAS RETALIATION AGAINST OEM'S, AND HE DIRECTED THE COURT
12
TO PARAGRAPH FOUR OF THEIR ORDER.
13
PARAGRAPH FOUR IS THAT IT DOES NOT AT ALL PROHIBIT
14
RETALIATION AGAINST OEM'S EXCEPT FOR CANCELING A LICENSE.
15
THAT IS, IT SAYS YOU CAN'T CANCEL A LICENSE OR REFUSE TO
16
GRANT A LICENSE, BUT IT ALLOWS MICROSOFT TO RETALIATE IN
17
EACH OF THE WAYS THAT I IDENTIFIED THIS MORNING: PRICE
18
DISCRIMINATION, WITHHOLDING EARLY ACCESS TO TECHNICAL
19
INFORMATION, COOPERATIVE ADVERTISING, COOPERATIVE
20
VENTURES.
21
REMEMBER, GX 433, FROM THE TRIAL WHERE COMPAQ WAS
22
DISCUSSING HOW RETALIATORY WOULD MICROSOFT GET, AND THESE
23
WERE EXAMPLES OF THE WAY THAT MICROSOFT COULD RETALIATE
24
AGAINST COMPAQ, DID--AS THE RECORD SHOWS AND THE COURT
25
FOUND--RETALIATE AGAINST OTHER OEM'S.
THE PROBLEM WITH
THERE WAS AN EXHIBIT I'M SURE THE COURT WILL
10
1
AND NONE OF THOSE KINDS OF RETALIATIONS THAT ARE
2
LISTED THERE OR THAT THE COURT FOUND WOULD BE COVERED BY
3
MICROSOFT'S PROPOSED REMEDY, SO THAT MICROSOFT'S REMEDY
4
DOESN'T EVEN ADDRESS IN ANYTHING LIKE AN ADEQUATE FASHION
5
EITHER OF THE TWO OUT OF TEN EXAMPLES THAT I GAVE THIS
6
MORNING.
7
MR. WARDEN RAISED SOME QUESTIONS ABOUT THREE
8
SUBSECTIONS OF THE GOVERNMENT'S PROPOSED REMEDY, AND I
9
WANT TO ADDRESS EACH ONE OF THOSE SEPARATELY.
10
FIRST, HE RAISED A QUESTION ABOUT PARAGRAPH
11
3(A)(III)(4), WHICH IS A PROVISION THAT ALLOWS OEM'S TO
12
AUTOMATICALLY LAUNCH OR MAKE THE DEFAULT NON-MICROSOFT
13
MIDDLEWARE.
14
CLAIMED THAT THEY DIDN'T WANT TO PREVENT OEM'S FROM DOING.
15
AND INDEED, THE COURT WILL REMEMBER MR. KEMPIN SAYING THAT
16
HE HAD ARRANGED ORAL CONVERSATIONS, ORAL AGREEMENTS, WITH
17
TWO OEM'S WHO WOULD ALLOW THEM TO DO THAT.
18
PUT IT IN WRITING, BUT THEY HAD DONE IT WITH TWO OEM'S
19
ORALLY, AND THIS IS SIMPLY DESIGNED TO MAKE SURE THAT THAT
20
IS, IN FACT, CARRIED OUT AND MADE AVAILABLE WITHOUT
21
DISCRIMINATION.
22
NOW, THAT IS EXACTLY WHAT MICROSOFT AT TRIAL
THEY HAVEN'T
THE OTHER ASPECT OF SUBSECTION FOUR THAT
23
MR. KEMPIN DID NOT ADDRESS IS REMOVING THE MEANS OF
24
END-USER ACCESS, WHICH IS ALSO THE POINT THAT MR. WARDEN
25
MADE WITH RESPECT TO SUBPARAGRAPH 3(G).
AND HE SAYS IT
11
1
WOULD TAKE MANY, MANY MONTHS AND ALL THE RESOURCES OF THE
2
COMPANY TO REMOVE END-USER ACCESS.
3
AWARE FROM MR. FELTEN'S TESTIMONY THAT WITH FAR LESS
4
RESOURCES THAN MICROSOFT AND FAR LESS PERSONNEL, HE WAS
5
ABLE TO DO AT LEAST A SUBSTANTIAL JOB IN DOING THAT, AND I
6
THINK THE TESTIMONY WAS CONSISTENT THROUGHOUT THAT
7
MICROSOFT WOULD HAVE A VERY EASY JOB IN DOING THAT.
8
9
THE COURT IS OBVIOUSLY
AND, IN FACT, AS THE COURT HAS FOUND AND THE
EVIDENCE SHOWED, MICROSOFT HAS ADD/REMOVE FEATURES FOR
10
MORE THAN 80 FEATURES OF THEIR PROGRAM.
11
DOESN'T THREATEN THEIR MONOPOLY THEY'RE HAPPY TO PUT IN AN
12
ADD/REMOVE FEATURE FOR.
13
TECHNOLOGICAL DIFFICULTY.
14
STRATEGY.
15
ANYTHING THAT
AND IT'S NOT A QUESTION OF
IT IS A QUESTION OF MARKETING
THE THIRD POINT HE MADE WAS WITH RESPECT TO 3(F),
16
WHICH IS JUST A BAN ON CONTRACTUAL TYING, AND HE MADE A
17
REFERENCE THAT I THINK WAS JUST AN INADVERTENT MISTAKE
18
ABOUT THAT INVOLVING REMOVAL OF CODE.
19
SECTION 3(F) INVOLVES REMOVAL OF CODE.
20
YOU CAN'T CONTRACTUALLY TIE OR CONDITION THE GRANTING OF
21
ONE LICENSE ON LICENSE FOR ANOTHER PRODUCT.
22
I DON'T THINK
WHAT IT SAYS IS
EVEN WITH RESPECT TO 3(G), THE ONE I WAS JUST
23
TALKING ABOUT, WHERE YOU ARE DEALING WITH PRODUCTS THAT
24
HAVE BEEN BOUND TOGETHER TECHNOLOGICALLY, THE REQUIREMENT
25
IS TO REMOVE END-USER ACCESS OR TO GIVE OEM'S A CHOICE.
12
1
IT IS NOT RESTRICTING MICROSOFT'S ABILITY TO DESIGN ITS
2
PRODUCTS.
3
THE LAST POINT THAT HE MADE WAS HE OBJECTED TO
4
THE SECURE FACILITY IN 3(B).
5
PEOPLE TO HAVE ACCESS TO THE API'S.
6
MR. WARDEN, HE WASN'T REALLY OBJECTING TO THAT, BUT HE WAS
7
OBJECTING TO THE FACT THAT PEOPLE COULD COME TO THE
8
SECURED FACILITY, AND HE WAS WORRIED ABOUT PIRATES.
9
3(B) IS DESIGNED TO ALLOW
AND AS I UNDERSTOOD
WELL, FIRST, ONE OF THE REASONS THAT IT'S A
10
SECURED FACILITY, SO-CALLED CLEAN ROOM, IS SO THAT PEOPLE
11
CAN COME THERE UNDER STRICT SUPERVISION.
12
ANYTHING OUT.
13
THEY ARE ABLE TO COME IN AND TEST WHAT THEY HAVE, BUT
14
THEY'RE NOT ABLE TO STEAL THE CODE.
15
LIMITED TO QUALIFIED REPRESENTATIVES, SO THEY HAVE A RIGHT
16
TO OBJECT IF THEY THINK ANYBODY WHO IS COMING IN IS NOT A
17
QUALIFIED REPRESENTATIVE OR IS, IN MR. WARDEN'S WORDS, A
18
"PIRATE."
19
THEY DON'T TAKE
THEY AREN'T ABLE TO TAKE OUT THE CODE.
THE PROVISION IS
AND THE SOLE PURPOSE OF USING THAT ROOM HAS TO BE
20
TO PERMIT INTEROPERABILITY; THAT'S SPECIFIED IN THE
21
PROVISION.
22
DOES ATTEMPT TO MISUSE THE INFORMATION, WHICH I THINK IS
23
VERY DIFFICULT, GIVEN THE CLEAN ROOM, THE SECURE ROOM
24
RESTRICTIONS.
25
SO, THERE'S A WAY OF ENFORCING THAT IF ANYBODY
NOW, MR. WARDEN SAYS, "ONCE YOU LET ANYBODY SEE
13
1
THIS SOURCECODE, IT'S TOO LATE.
YOU CAN'T HEM IT IN."
2
WELL, THE PROBLEM WITH THAT ARGUMENT, YOUR HONOR, IS THAT
3
THE RECORD IS ABSOLUTELY CLEAR THAT MICROSOFT NOW MAKES
4
ITS SOURCECODE AVAILABLE TO COMPETITORS.
5
GOVERNMENT EXHIBITS 433, 1519, 1125, AND 804, WHAT YOU SEE
6
IS THAT MICROSOFT HAS MADE THE SOURCECODE AVAILABLE TO
7
COMPAQ, BRISTOL, COMPUSERVE AND AOL.
8
HAS A BROAD ACCESS TO WINDOWS SOURCECODE, AND MICROSOFT
9
WAS PREPARED TO SHARE THE SOURCECODE WITH IBM, A FIRM THAT
10
IT NOW ASSETS IS A TERRIBLE COMPETITOR AND SHOULD NEVER BE
11
ABLE TO GET INSIDE THE CLEAN ROOM.
12
SHARE THAT SOURCECODE WITH IBM WITHOUT SECURED FACILITY
13
RESTRICTIONS IF IBM WOULD AGREE TO DO THE THINGS THAT
14
MICROSOFT WANTED.
15
2164 AND 2167 AND MR. NORRIS'S TESTIMONY ON JUNE 8, 1999,
16
AT PAGES 26 AND 27, YOU WILL SEE THE EVIDENCE FOR THAT.
17
SO, THE FACT OF THE MATTER IS THAT NOT ONLY IS
IF YOU LOOK AT
AOL, IN PARTICULAR,
THEY WERE PREPARED TO
AND IF YOU LOOK AT GOVERNMENT EXHIBITS
18
THIS ENTIRELY SECURE AND MICROSOFT'S LEGITIMATE INTERESTS
19
ENTIRELY PROTECTED, BUT MICROSOFT'S ARGUMENT IS
20
INCONSISTENT WITH ITS OWN PRACTICE OUTSIDE THIS COURTROOM.
21
LET ME TURN TO THE ISSUE OF DIVESTITURE.
AND
22
WITH RESPECT TO THE DIVESTITURE, MR. WARDEN'S ARGUMENT IS
23
ESSENTIALLY AN ATTEMPT TO REARGUE THE MERITS OF THE CASE.
24
WHAT HE SUGGESTS IS THAT THE COURT HAS NOT FOUND ANY
25
CAUSAL RELATIONSHIP OR ANY EFFECT TO MICROSOFT'S CONDUCT.
14
1
WE THINK THAT THAT IS SIMPLY NOT CONSISTENT WITH ANY FAIR
2
READING OF THE COURT'S CONCLUSIONS OF LAW AND FINDINGS OF
3
FACT.
4
FOR EXAMPLE, JUST SOME EXAMPLES HERE, AT
5
CONCLUSION PAGE NINE, MICROSOFT'S CAMPAIGNS SUCCEEDED IN
6
PREVENTING FOR SEVERAL YEARS AND PERHAPS PERMANENTLY
7
NAVIGATOR AND JAVA FROM FULFILLING THEIR POTENTIAL TO OPEN
8
THE MARKET FOR INTEL-COMPATIBLE PC OPERATING SYSTEMS TO
9
COMPETITION ON THE MERITS.
BECAUSE MICROSOFT ACHIEVED
10
THIS RESULT THROUGH EXCLUSIONARY ACTS THAT LACKED
11
PROCOMPETITIVE JUSTIFICATION, THE COURT DEEMS MICROSOFT'S
12
CONDUCT THE MAINTENANCE OF MONOPOLY POWER BY
13
ANTICOMPETITIVE MEANS.
14
BEEN CLEARER THAN THAT.
15
I DON'T THINK THE COURT COULD HAVE
IN FINDINGS AT 411, THE COURT SAYS THAT ALTHOUGH
16
THERE IS INSUFFICIENT EVIDENCE TO FIND THAT ABSENT
17
MICROSOFT'S ACTIONS, NAVIGATOR AND JAVA ALREADY WOULD HAVE
18
IGNITED GENUINE COMPETITION IN THE MARKET FOR INTEL
19
OPERATING SYSTEMS, IT IS CLEAR THAT MICROSOFT HAS RETARDED
20
AND PERHAPS ALTOGETHER EXTINGUISHED THE PROCESS BY WHICH
21
THESE TWO MIDDLEWARE TECHNOLOGIES COULD HAVE FACILITATED
22
THE INTRODUCTION OF COMPETITION INTO AN IMPORTANT MARKET.
23
IN FINDINGS 377, 378, 383, 407, 412, 411, AND THE
24
CONCLUSIONS AT 19 AND 20 AND 15, THE COURT REPEATEDLY
25
STRESSES THE SUBSTANTIAL ANTICOMPETITIVE EFFECT THAT
15
1
MICROSOFT'S ACTION HAS HAD.
AND IT SIMPLY IS NOT, IN OUR
2
VIEW--ALTHOUGH THE COURT IS OBVIOUSLY THE BEST JUDGE OF
3
ITS OWN WRITINGS, BUT CERTAINLY OUR READING OF THOSE
4
WRITINGS CANNOT BE SQUARED WITH THE IDEA THAT THE COURT
5
HAS NOW FOUND THAT MICROSOFT HAS SUBSTANTIALLY AND
6
REPEATEDLY ADVERSELY AFFECTED COMPETITION IN THIS MARKET.
7
THERE IS NO COURT CASE, AND CERTAINLY THE AREEDA
8
TREATISE DOES NOT SET FORTH ANY PARTICULAR BUT-FOR TEST OR
9
PROBABILITY TEST; THEY CAN'T CITE A CASE FOR THAT.
10
INDEED, THE LAW IS EXACTLY THE CONTRARY.
11
UNITED SHOE, UNITED SHOE WAS A CASE IN WHICH THEY GOT
12
THEIR MONOPOLY UNLAWFULLY.
13
ANY CAUSAL CONNECTION.
14
LEASING, WAS A PRACTICE THAT COMPANIES WITHOUT MONOPOLY
15
POWER ARE ENTIRELY FREE TO ENGAGE IN.
16
MR. WARDEN LIKES TO SAY, A UNITARY COMPANY.
17
COURT WAS RELUCTANT TO BREAK THE COMPANY UP.
18
COURT IN 1980 RULED IT HAD TO BE BROKEN UP.
19
REFERS TO THIS AS A CONSENT DECREE.
20
CONSENT DECREE THAT WAS NEGOTIATED AFTER THE SUPREME COURT
21
RULED THAT THE DISTRICT COURT'S REFUSAL TO PROCEED WAS
22
INAPPROPRIATE.
23
IF YOU TAKE
THERE WAS NO FINDING THERE WAS
THE PRACTICE THAT WAS ATTACKED,
IT WAS, AS
THE DISTRICT
THE SUPREME
MR. WARDEN
WELL, IT WAS A
WITH RESPECT TO THE ISSUE AS TO WHETHER THE
24
BROWSER THREAT WAS JUST A SPECULATIVE THREAT, MR. WARDEN
25
SAYS, "WELL, NO MATTER WHAT THE COURT FOUND, THE COURT'S
16
1
RULING IN ERROR BECAUSE THE BROWSER WAS JUST A SPECULATIVE
2
THREAT."
3
FINDINGS.
4
CERTAINLY DIDN'T VIEW THIS AS A SPECULATIVE THREAT.
5
VIEWED IT AS A VERY REAL THREAT, AND IT WAS.
6
THE COURT HAS EXTENSIVELY DEALT WITH THIS IN ITS
AND, OF COURSE, MICROSOFT AND BILL GATES
THEY
THE NEXT ARGUMENT THAT MICROSOFT MAKES IS THAT
7
THE REMEDIES SHOULD BE LIMITED BECAUSE THE LAW WAS
8
UNCLEAR, AND HE SAYS THE COURT OF APPEALS MAKES SECTION 1
9
LAW OF TYING UNCLEAR.
NOW, FIRST OF ALL, TYING IS ONE
10
ASPECT, A NOT UNIMPORTANT ASPECT OF THE CASE, BUT ONLY ONE
11
ASPECT OF THEIR MONOPOLIZATION.
12
SECOND, THE LAW WITH RESPECT TO SECTION 2 TYING
13
HAS NEVER BEEN UNCLEAR.
14
SUGGEST THAT A COMPANY WITH MONOPOLY POWER COULD ENGAGE IN
15
THIS KIND OF CONDUCT.
16
EVEN THE COURT OF APPEALS DIDN'T
SO, SINCE THE PRIMARY BASIS OF THE REMEDY, AND
17
CERTAINLY THE PRIMARY BASIS OF THE DIVESTITURE REMEDY, IS
18
SECTION 2, THERE IS NO LACK OF CLARITY WITH RESPECT TO THE
19
LAW.
20
MICROSOFT ALSO SAYS THAT THIS CASE WAS NOT ABOUT
21
OFFICE, AND THEREFORE OFFICE SHOULD NOT BE INVOLVED IN ANY
22
REMEDY.
23
CASE WAS ABOUT OFFICE IN A NUMBER OF RESPECTS.
24
ABOUT THEIR USE OF OFFICE IN ORDER TO FORCE APPLE TO DO
25
ITS BIDDING IN THE MIDDLEWARE AREA.
THAT MISSES THE POINT ON TWO AREAS.
FIRST, THE
IT WAS
IT WAS ALSO ABOUT
17
1
THEIR USE OF THEIR MONOPOLY POWER WITH RESPECT TO THE
2
OPERATING SYSTEM TO PENALIZE PEOPLE THAT COMPETED WITH
3
OFFICE.
4
AND 132 ABOUT HOW MICROSOFT PENALIZED IBM AND OTHER PEOPLE
5
FOR DISTRIBUTING PRODUCTS THAT COMPETED WITH OFFICE, AND
6
THEY USED THEIR MONOPOLY POWER IN THE OPERATING SYSTEM TO
7
DO THAT.
8
9
AND THE COURT MADE FINDINGS AT FINDINGS 127, 129,
SO, THE FIRST PART IS THAT THE CASE WAS IN A
SIGNIFICANT WAY--THE CASE WAS IN A SIGNIFICANT WAY ABOUT
10
OFFICE.
BUT EVEN IF IT HAD NOT BEEN DIRECTLY ABOUT
11
OFFICE, IT WAS ABOUT APPLICATIONS BARRIER TO ENTRY AND
12
ABOUT MIDDLEWARE, AND THAT'S REALLY WHAT THE REMEDY IS
13
STRIKING AT.
14
MICROSOFT COMES FORWARD WITH THIS DEFINITION OF
15
WHAT THEY CALL "UNITARY COMPANIES" THAT ARE NOT SUPPOSED
16
TO BE BROKEN UP.
17
UNITARY COMPANY THAT WAS BROKEN UP WAS UNITED SHOE.
18
IN ADDITION, WITH RESPECT TO BOTH AMERICAN
NOW, THE FIRST EXAMPLE, OF COURSE, OF A
19
TOBACCO AND PARAMOUNT, ALTHOUGH THEY WERE SEPARATE
20
ENTITIES, THE COURT DIDN'T JUST BREAK UP AND SEPARATE
21
CORPORATE ENTITIES.
22
THOSE CORPORATE ENTITIES AND PUT ASSETS OUT OF ONE AND PUT
23
THEM IN ANOTHER.
24
INCONSISTENT WITH DIVESTITURE OF UNITARY COMPANY.
25
IN FACT, ENTIRELY CONSISTENT WITH IT, AND THERE IS NOT A
IT REACHED INTO THE INNER INNARDS OF
THIS IS NOT A SITUATION THAT IS
IT IS,
18
1
SINGLE CASE AND NOT A SINGLE COMMENTATOR THAT HAS EVER
2
SUGGESTED THAT DIVESTITURE SHOULD NOT BE APPLIED TO A,
3
QUOTE, UNITARY COMPANY.
4
INDEED, IN THE MOST RECENT UNITARY COMPANY, AT&T,
5
JUDGE GREENE TALKED ABOUT THE BENEFITS OF DIVESTITURE
6
WHERE HE SAYS IN WORDS THAT I THINK THE COURT MAY SEE SOME
7
PARALLEL WITH THE FACTS OF THIS CASE, "IT WOULD BE
8
DIFFICULT TO FORMULATE AN ORDER THAT WOULD EFFECTIVELY
9
DEAL WITH ALL OF THE DIFFERENT KINDS OF ANTI-COMPETITIVE
10
BEHAVIOR WITH RESPECT TO MANY DIFFERENT SUBJECTS.
11
IS EVIDENCE THAT SUGGESTS THAT AT&T'S PATTERN DURING THE
12
LAST 30 YEARS HAS BEEN TO SHIFT FROM ONE ANTICOMPETITIVE
13
ACTIVITY TO ANOTHER, AS VARIOUS ALTERNATIVES WERE
14
FORECLOSED THROUGH THE ACTION OF REGULATORS OR THE COURTS
15
OR AS A RESULT OF TECHNICAL DEVELOPMENT.
16
BACKGROUND, IT IS UNLIKELY THAT, REALISTICALLY, AN
17
INJUNCTION COULD BE DRAFTED THAT WOULD BE BOTH
18
SUFFICIENTLY DETAILED TO BAR SPECIFIC ANTICOMPETITIVE
19
CONDUCT YET SUFFICIENTLY BROAD TO PREVENT THE VARIOUS
20
CONCEIVABLE KINDS OF BEHAVIOR THAT AT&T MIGHT EMPLOY IN
21
THE FUTURE."
22
THERE
IN VIEW OF THIS
NOW, OF COURSE, MICROSOFT'S CONDUCT HAS NOT GONE
23
ON FOR 30 YEARS, BUT IT HAS GONE ON, AS THE COURT HAS
24
FOUND, FOR MANY YEARS; AND IT HAS, JUST AS AT&T'S CONDUCT
25
DID, SHIFTED FROM ONE PATTERN TO ANOTHER TO MEET EACH OF
19
1
THE THREATS THAT MICROSOFT HAS PERCEIVED.
2
MICROSOFT NEXT ARGUES THAT COMPETITION IS FOR THE
3
WHOLE MARKET, AND THEREFORE YOU SHOULDN'T WORRY ABOUT
4
MONOPOLY.
5
EVEN THEIR ECONOMISTS, SAID THAT THERE WAS COMPETITION
6
ONLY FOR THE WHOLE MARKET.
7
SURVIVOR.
8
SAYING THE BROWSER MARKET IS GOING TO CONTINUE TO HAVE TWO
9
COMPANIES IN IT.
WELL, FIRST OF ALL, NONE OF THE ECONOMISTS,
THERE WAS ONLY GOING TO BE ONE
INDEED, UP UNTIL TODAY, MICROSOFT HAS BEEN
BUT EVEN IF IT WERE COMPETITION FOR THE
10
WHOLE MARKET, OF WHICH THERE WAS NO EVIDENCE IN THE RECORD
11
AND NO FINDINGS, YOU WOULD STILL WANT THAT COMPETITION TO
12
BE COMPETITION ON THE MERITS.
13
MICROSOFT SAYS THAT IT IS BARRED FROM COMPETING
14
FOR THE NEXT SHIFT, THE NEXT TECHNOLOGICAL CHANGE, THE
15
NEXT NEW PRODUCT ADVANCE.
16
THE GOVERNMENT'S PROPOSED REMEDY THAT DOES THAT, YOUR
17
HONOR, AS I THINK THE COURT KNOWS.
18
THAT THAT COMPETITION TAKE PLACE ON A LEVEL PLAYING FIELD.
19
MICROSOFT GETS TO COMPETE, BUT IT DOESN'T GET TO USE ITS
20
MONOPOLY POWER TO PUT A THUMB ON THE SCALES AND TO
21
PRE-DETERMINE THE EFFECT OF THAT COMPETITION.
22
NOTHING THAT RESTRICT'S MICROSOFT'S ABILITY TO COMPETE.
23
ALL THAT IS RESTRICTED HERE IS MICROSOFT'S ABILITY TO ACT
24
IN AN ANTICOMPETITIVE WAY AND TO USE ITS MARKET POWER TO
25
PRECLUDE COMPETITION ON THE MERITS FROM OTHERS.
OF COURSE, THERE IS NOTHING IN
WHAT WE HAVE ASKED IS
THERE IS
20
1
THANK YOU, YOUR HONOR.
2
THE COURT:
3
MR. WARDEN:
4
ALL RIGHT.
COULD I HAVE FIVE MINUTES IN ORDER
TO ANSWER THE QUESTIONS, AND THEN I WILL WRAP UP?
5
THE COURT:
SURE.
6
(BRIEF RECESS.)
7
MR. WARDEN:
WE WILL TAKE FIVE MINUTES.
YOUR HONOR, MR. HOLLEY IS GOING TO
8
ANSWER THE FIRST QUESTION, WHICH I THINK LEADS TO A FAIRLY
9
COMPLICATED DISCUSSION.
10
11
THE COURT:
FAIR ENOUGH.
MR. HOLLEY IS FULLY
CAPABLE OF IT.
12
MR. HOLLEY:
13
THE COURT:
14
MR. HOLLEY:
GOOD AFTERNOON, YOUR HONOR.
GOOD AFTERNOON.
AS I UNDERSTOOD THE COURT'S
15
QUESTION, WHAT WAS MICROSOFT'S RESPONSE TO THE STATEMENT
16
ATTRIBUTED TO MR. BALLMER IN THE CCIA BRIEF THAT 40
17
PERCENT OF THE--
18
19
20
THE COURT:
IS IT TRUE, OR DID MR. BALLMER SAY
IT?
MR. HOLLEY:
I DO NOT KNOW WHETHER MR. BALLMER
21
SAID IT, YOUR HONOR, BUT I CAN SAY THIS:
I THINK IT'S
22
IMPORTANT FOR THE COURT TO UNDERSTAND WHO THE CCIA IS IN
23
READING THAT BRIEF.
24
OF UNIX VENDORS, ALL OF WHOM COMPETE WITH MICROSOFT IN THE
25
PROVISION OF OPERATING SYSTEM SOFTWARE.
THE CCIA IS AN ORGANIZATION COMPRISED
21
1
THE COURT:
2
MR. HOLLEY:
3
JUST COMPETITORS, YOUR HONOR.
4
SCARED OF MICROSOFT'S EFFORTS TO BRING THE SAME
5
HIGH-VOLUME, LOW-PRICE MODEL THAT HAS BEEN SO USEFUL IN
6
THE PC SPACE TO SERVERS, AND THAT IS WHY THEY FILED BRIEFS
7
LIKE THE ONE THAT THEY FILED.
8
IMPORTANT TO SET THE STAGE FOR WHO THOSE FOLKS ARE AND WHY
9
THEY ARE HERE.
10
I AGREE.
THEY'RE COMPETITORS.
THEY'RE COMPETITORS, AND THEY'RE NOT
THEY'RE COMPETITORS RUNNING
SO, I JUST THINK IT'S
THE SECOND THING I WOULD LIKE TO SAY, YOUR HONOR,
11
IS WINDOWS 2000 WAS NOT AT ISSUE IN THIS CASE.
12
NO EVIDENCE IN THE RECORD REGARDING WINDOWS 2000 OR,
13
FRANKLY, REGARDING ITS PREDECESSOR, WINDOWS NT 4.0.
14
IT'S OUTSIDE THE CONTEXT OF THE CASE.
15
THERE IS
SO,
AS I UNDERSTAND THE ARGUMENT THAT CCIA IS MAKING,
16
IT IS A CLASSIC MONOPOLY LEVERAGING CLAIM.
THE CLAIM IS
17
THAT MICROSOFT HAS A MONOPOLY ON THE DESKTOP AND IT IS
18
USING THAT DESKTOP MONOPOLY TO LEVERAGE A STRONG POSITION
19
IN SERVERS.
20
THIS ARGUMENT.
21
DISMISSED THE MONOPOLY LEVERAGING CLAIM IN THIS CASE ON
22
SUMMARY JUDGMENT ON THE BASIS THAT IT WAS NOT COGNIZABLE
23
AT LAW.
24
LEAST NOT IN THIS COURT, AND THAT IS ALSO WHAT OTHER
25
COURTS OF APPEALS HAVE HELD AROUND THE COUNTRY.
THE PROBLEM--THERE ARE SEVERAL PROBLEMS WITH
THE FOREMOST OF THEM IS THAT YOUR HONOR
THERE IS NO SUCH CLAIM KNOWN TO ANTITRUST LAW, AT
SO, THE
22
1
MONOPOLY LEVERAGING CLAIM IS FLAWED LEGALLY.
2
IT IS ALSO FLAWED FACTUALLY BECAUSE THE CLIENT
3
CODE IN WINDOWS 2000 CURRENTLY HAS A MARKET SHARE OF ZERO,
4
EFFECTIVELY.
5
2000.
6
AROUND THE WORLD, AND THE FEATURES THAT THE CCIA PEOPLE DO
7
NOT LIKE ARE NOT AVAILABLE IN EITHER WINDOWS 3.X OR
8
WINDOWS 9.X.
9
OPERATING SYSTEMS DOES NOT APPLY IN THIS PARTICULAR
10
THE PRODUCT WAS RELEASED IN FEBRUARY OF
IT IS ONLY NOW BEING DEPLOYED IN CUSTOMER SITES
SO, MICROSOFT'S SUPPOSED MONOPOLY IN
INSTANCE.
11
THE THIRD THING I WOULD LIKE TO SAY IS THAT THE
12
RELATIONSHIP--AND WE WILL SEE THIS IN JUST A MOMENT--THE
13
RELATIONSHIP BETWEEN WINDOWS 2000 CLIENTS--THE THINGS THAT
14
SIT ON DESKTOPS--AND WINDOWS 2000 SERVERS IS VERY, VERY
15
COMPLICATED; AND THERE'S NO EVIDENCE IN THE RECORD ON THAT
16
POINT.
17
AND, IN FACT, THANKS TO SUN MICROSYSTEMS AND NOVELL, TWO
18
OF MICROSOFT'S LARGEST COMPETITORS, MICROSOFT IS ENGAGED
19
IN A PROCEEDING RIGHT NOW IN FRONT OF THE DIRECTOR GENERAL
20
FOR COMPETITION IN EUROPE TO ADDRESS EXACTLY THE QUESTIONS
21
THAT THE CCIA BRIEF RAISES HERE.
22
YOU COULD HAVE AN ENTIRE TRIAL ABOUT THIS MATTER.
THE NEXT POINT I WOULD LIKE TO MAKE, YOUR HONOR,
23
IS THAT WINDOWS 2000 CLIENT, THE DESKTOP VERSION, SUPPORTS
24
AN ENTIRE RANGE OF INDUSTRY PROTOCOLS BECAUSE IT WAS
25
DESIGNED TO INTEROPERATE WITH NOVELL NETWARE, WITH IBM'S
23
1
AIX UNIX VARIANTS, WITH SUN SOLARIS UNIX VARIANT, WITH A
2
WHOLE RANGE OF OTHER OPERATING SYSTEMS.
3
THAT WINDOWS 2000 PROFESSIONAL ONLY WORKS WITH WINDOWS
4
2000 SERVER IS FLATLY WRONG, AND MICROSOFT WOULD BE
5
PREPARED TO PROVE THAT IF GIVEN AN OPPORTUNITY, YOUR
6
HONOR.
7
SO, THE NOTION
GIVEN THE ABSENCE OF ANY EXCLUSION OF OTHER
8
SERVER OPERATING SYSTEMS BECAUSE THEY WORKED JUST FINE
9
WITH WINDOWS 2000 CLIENT, THERE IS NO REASON UNDER THE
10
ANTITRUST LAWS WHY MICROSOFT CANNOT MAKE ITS DESKTOP
11
OPERATING SYSTEM WORK VERY WELL WITH ITS SERVER OPERATING
12
SYSTEM.
13
IN BERKEY PHOTO AGAINST EASTMAN KODAK, THAT KODAK, EVEN
14
THOUGH IT HAD A MONOPOLY IN FILM, WAS ENTITLED TO DEVELOP
15
BOTH CAMERAS, FILM AND PHOTO PROCESSING THAT ALL WORKED
16
VERY WELL TOGETHER.
17
IN JUST THE SAME WAY THAT THE SECOND CIRCUIT SAID
NOW, COMPANIES LIKE BERKEY AND GAF WERE VERY
18
UNHAPPY ABOUT THAT, AS WAS FUJI, BUT WHAT THE COURT HELD
19
WAS THAT COMPANIES WHICH ARE ENGAGED IN A BROAD RANGE OF
20
BUSINESS ACTIVITY HAVE THE RIGHT--THEY HAVE THE
21
RIGHT--THERE'S NOTHING WRONG WITH IT--TO DEVELOP THEIR
22
PRODUCTS IN SUCH A WAY THAT THEY WORK WELL TOGETHER.
23
THAT'S JUST A NATURAL MANIFESTATION OF BEING A COMPANY IN
24
A BROAD RANGE OF BUSINESSES.
25
SUN, WHO IS A LEADING MEMBER OF CCIA, HAS NETWORK
24
1
COMPUTERS CALLED SUN RAYS, YOUR HONOR, AND THEY
2
COMMUNICATE WITH SUN SOLARIS SERVERS USING ENTIRELY
3
PROPRIETARY PROTOCOLS.
4
MORNING, A CLOSED SYSTEM.
IT IS NOT AVAILABLE TO
5
MICROSOFT OR ANYONE ELSE.
THOSE PROTOCOLS ARE NOT
6
AVAILABLE, AND WE DO NOT KNOW HOW THEY WORK.
7
IT IS, AS MR. WARDEN SAID THIS
SO, THAT'S JUST ONE EXAMPLE, YOUR HONOR, THESE
8
SORTS OF PROTOCOLS, THESE SORTS OF RELATIONSHIPS BETWEEN
9
CLIENTS AND SERVERS ARE NOT--NOTHING UNUSUAL ABOUT THAT
10
SORT OF RELATIONSHIP.
11
I WOULD LIKE TO TAKE ONE EXAMPLE FROM PROFESSOR
12
HENDERSON'S DECLARATION, AND IT'S IN PARAGRAPH 50, YOUR
13
HONOR.
14
DECLARES IN HER STATEMENT THAT WINDOWS 2000 PC'S CANNOT
15
LOG INTO A UNIX KERBEROS SERVER, AND I WANT TO USE THAT
16
STATEMENT AS AN EXAMPLE BOTH OF HOW UNBELIEVABLY
17
COMPLICATED THESE ISSUES ARE AND ALSO JUST HOW WRONG THE
18
GOVERNMENT HAS GOTTEN IT.
19
YOUR HONOR, BECAUSE THEY HAVE NEVER TAKEN ANY DISCOVERY ON
20
THIS ISSUE, AND IT WAS NEVER AN ISSUE AT TRIAL, AND IT IS
21
VERY DIFFICULT.
22
SHE SAYS--SHE'S AN ECONOMIST, BUT SHE TESTIFIES OR
AND IT'S UNDERSTANDABLE WHY,
I WOULD LIKE TO SHOW YOU A SLIDE, YOUR HONOR,
23
WHICH EXPLAINS THE KERBEROS SECURITY AT MORGAN STANLEY IN
24
LONDON.
25
HENDERSON IS WRONG, BUT IT'S GOING TO BE A LITTLE
NOW, WHAT THIS SLIDE SHOWS IS THAT PROFESSOR
25
1
DIFFICULT TO EXPLAIN WHY, BUT I WOULD LIKE TO.
2
WINDOWS 2000 PROFESSIONAL IS THE DESKTOP VERSION
3
OF MICROSOFT'S NEW OPERATING SYSTEM.
SO, ON THE TRADING
4
FLOOR AT MORGAN STANLEY IN LONDON, THERE ARE WINDOWS 2000
5
PROFESSIONAL DESKTOPS.
6
CAN YOU CLICK TO THE NEXT SLIDE.
7
UNDER THE KERBEROS SECURITY AUTHENTICATION
8
PROTOCOL, WHEN A MORGAN STANLEY TRADER COMES IN IN THE
9
MORNING, THAT WINDOWS 2000 PROFESSIONAL CLIENT
10
AUTHENTICATES ITSELF TO A UNIX KERBEROS KEY DISTRIBUTION
11
CENTER.
12
PROFESSOR HENDERSON MADE IS WRONG.
13
PROFESSIONAL CLIENT IS LOGGING ON TO A UNIX SERVER.
14
CAN I SEE THE NEXT SLIDE, PLEASE?
15
WHAT THE WINDOWS 2000 PROFESSIONAL CLIENT GETS
SO, RIGHT NOW WE SEE THAT THE STATEMENT THAT
THIS WINDOWS 2000
16
BACK IS WHAT IS CALLED THE "TICKET-GRANTING TICKET," TGT.
17
THE WINDOWS 2000 PROFESSIONAL CLIENT THEN SENDS THAT
18
TICKET-GRANTING TICKET TO A WINDOWS 2000 KEY DISTRIBUTION
19
CENTER SO THAT IT CAN USE WINDOWS 2000 SERVER RESOURCES.
20
CAN I SEE THE NEXT SLIDE, PLEASE?
21
THE WINDOWS 2000 SERVER THEN SENDS BACK A
22
RESOURCE TICKET TO THE WINDOWS 2000 PROFESSIONAL CLIENT.
23
NEXT SLIDE, PLEASE.
24
AND THEN THE WINDOWS 2000 PROFESSIONAL CLIENT
25
SENDS TO THE WINDOWS 2000 SERVER ON WHICH THE RESOURCE,
26
1
THE FILES OR WHATEVER INFORMATION IT WANTS, IS STORED,
2
SENDS THAT TICKET THERE.
3
THIS SYSTEM IS IN OPERATION NOW.
IT WORKS.
4
THERE IS NO PROBLEM WITH IT.
AND THEREFORE, AS CAN YOU
5
SEE, YOUR HONOR--AND I'M NOT GOING TO GO INTO ALL THE GORY
6
DETAILS--IT IS VERY COMPLICATED.
7
NAME MAPPING MEANS AND WHAT THE AUTH DATA FIELD MEANS.
8
THE CRITICAL POINT IS, THERE IS NO EVIDENCE IN THE RECORD
9
ABOUT THIS SUBJECT.
WE COULD TALK ABOUT WHAT
THERE ARE PEOPLE AT MIT WHO SPEND
10
THEIR LIVES ARGUING ABOUT KERBEROS SECURITY, AND WE HAVE
11
NO EVIDENCE OF ANY OF THAT.
12
SO, YOUR HONOR, I THINK WHAT YOU HAVE TO DRAW
13
FROM ALL OF THIS IS THAT IT IS NOT A BASIS FOR AWARDING
14
RELIEF AGAINST MICROSOFT AT THIS JUNCTURE, INCLUDING THE
15
SORT OF DRACONIAN RELIEF THAT THE GOVERNMENT WOULD LIKE TO
16
HAVE, WHICH WOULD BASICALLY REQUIRE MICROSOFT TO DISCLOSE
17
ALL OF THE DETAILS OF HOW ALL THIS WORKS TO ALL OF ITS
18
COMPETITORS, EVEN THOUGH IT INTEROPERATES JUST FINE NOW
19
WITHOUT A TRIAL, WITHOUT SOME SORT OF EVIDENTIARY BASIS
20
FOR DOING SO.
21
22
23
MR. WARDEN WILL NOW ADDRESS THE OTHER QUESTIONS
THAT THE COURT ASKED.
MR. BOIES:
YOUR HONOR, COULD I BE HEARD BRIEFLY
24
ON THIS RESPONSE TO HIS ANSWERS TO YOUR QUESTIONS?
25
SEEMS TO MOVE BEYOND THAT INTO NEW AREAS.
IT
27
1
FIRST, HE QUOTED THE HENDERSON AFFIDAVIT.
IF
2
ANYBODY WANTED TO CROSS-EXAMINE OR TAKE THE DEPOSITIONS,
3
THEY WERE AVAILABLE TO DO SO.
4
INTO THEIR RESPONSE, THEY COULD HAVE DONE SO.
5
THAT THEY KNOW--I DON'T--THEY CHOSE NOT TO DO THAT.
6
IF THEY'RE GOING TO QUOTE THE AFFIDAVIT NOW, THEY OUGHT TO
7
QUOTE THE WHOLE THING.
8
IF THEY WANTED TO PUT THIS
FOR REASONS
BUT
AND PARAGRAPH 38, SHE SAYS, BEFORE SHE GETS TO
9
THE PORTION HE QUOTES, "WHILE WINDOWS 2000 PROFESSIONAL,
10
THE PC OPERATING SYSTEM, CAN INTEROPERATE WITH A VARIETY
11
OF SERVERS, IT OFFERS A SIGNIFICANT NUMBER OF"--AND THEN
12
IT GOES ON TO ADVANTAGES.
13
I NEED PAGE 14.
14
"--FUNCTIONS THAT CAN ONLY BE IMPLEMENTED IF THE
15
CONSUMER IS USING A SERVER RUNNING IN WINDOWS 2000 SERVER
16
OPERATING SYSTEM, INCLUDING SUCH FEATURES AS SECURITY,
17
MICROSOFT'S IMPLEMENTATION OF KERBEROS, THE ABILITY TO
18
RETAIN USER-SPECIFIC SETTINGS, DATA AND APPLICATIONS,
19
REGARDLESS OF WHICH WINDOWS 2000-BASED PC THE CONSUMER
20
USES ON A NETWORK," ET CETERA.
21
THIS IS, I THINK, IF THE COURT WILL SEE IF YOU
22
LOOK AT THE ENTIRE AFFIDAVIT, SOMEWHAT TAKEN OUT OF
23
CONTEXT.
24
TO DO WITH THE REMEDIES THAT WE HAVE PROPOSED.
25
SOMETHING ON WHICH OUR REMEDY DEPENDS.
BUT MORE TO THE POINT, IT DOESN'T HAVE ANYTHING
IT'S NOT
IT IS NOTHING THAT
28
1
THEY HAVE SOUGHT TO RAISE PREVIOUSLY, AND IT SIMPLY IS A
2
RED HERRING.
3
4
REBUTTAL ARGUMENT BY COUNSEL FOR DEFENDANT
MR. WARDEN:
MR. HOLLEY MADE HIS PRESENTATION IN
5
RESPONSE TO THE COURT'S QUESTION COMING FROM AN AMICUS
6
BRIEF, BUT I DO WANT TO MAKE CLEAR THAT THE GOVERNMENT IS
7
SEEKING DISCLOSURE OF COMMUNICATIONS PROTOCOLS BETWEEN
8
DESKTOP CLIENTS AND SERVER OPERATING SYSTEMS THAT ARE
9
PROPRIETARY TO MICROSOFT.
10
11
SO, THIS ALL DOES BEAR ON THE
RELIEF THAT THEY'RE SEEKING, AS WELL.
NOW, THE COURT'S SECOND QUESTION WAS ABOUT THE
12
THREE-YEAR PRICING PROVISION, AND MR. BOIES ANSWERED IT AS
13
TO OFFICE, BUT HE DID THINK IT SHOULD EXTEND TO WINDOWS
14
AND ALL CHANNELS, AND THAT'S CLEARLY WRONG, YOUR HONOR,
15
BECAUSE THE OEM CHANNEL IS THE ONLY CHANNEL AS TO WHICH
16
ANY CLAIM OR EVIDENCE WAS ADDUCED, THAT PRICING OF WINDOWS
17
WAS USED FOR ANYTHING.
18
IN THE RETAIL CHANNEL, OR WHATEVER, WERE COERCED TO DO
19
ANYTHING BY REASON OF THE PRICE OF WINDOWS.
THERE IS NO EVIDENCE THAT PEOPLE
20
WITH RESPECT TO THE SUGGESTION THAT INTERNET
21
EXPLORER BE PUT IN THE PUBLIC DOMAIN, SO TO SPEAK, AS
22
OPEN-SOURCE INFORMATION, FIRST I WANT TO POINT OUT NOT
23
ONLY WHAT MR. HOLLEY SAID ABOUT WHO THOSE PEOPLE ARE AND
24
WHAT THEY'RE ABOUT, BUT, YOU KNOW, THEY ARE
25
JOHNNY-COME-LATELIES TO THIS AFFAIR.
THIS BRIEF CAME IN
29
1
LAST WEEK.
2
TO IT.
3
FACTUAL ASSERTIONS ARE CERTAINLY NOT EVIDENTIARY.
4
THERE IS NO REASON ANYONE WOULD HAVE RESPONDED
THE THINGS THEY PUT IN THEIR BRIEF BY WAY OF
IN ANY EVENT, MAKING IE SOURCECODE OPEN SOURCE,
5
WHETHER IT'S OWNED BY THE PRESENT MICROSOFT CORPORATION IN
6
ITS PRESENT UNITARY FORM, OR WHETHER IT'S OWNED BY A NEW
7
APP'S COMPANY, AS THE GOVERNMENT WOULD HAVE IT, OR
8
WHATEVER, SUFFERS FROM ALL OF THE SAME DESTRUCTIVE
9
PROBLEMS THAT I DISCUSSED IN DISCUSSING PUTTING ANY KIND
10
OF INTELLECTUAL PROPERTY IN THE PUBLIC DOMAIN:
11
INCENTIVE TO INNOVATE AND SO FORTH.
12
LACK OF
AS TO FORFEITURE AS A TRADITIONAL EQUITABLE
13
REMEDY, THAT TYPICALLY EXTENDS TO THE PROCEEDS OF CRIME OR
14
CONTRABAND.
15
HERE.
THERE'S NO EVIDENCE OF ANYTHING LIKE THAT
16
THE COURT:
17
MR. WARDEN:
YOU'RE TALKING ABOUT A CIVIL REMEDY?
EVEN CIVILLY, I THINK THAT'S WHAT
18
NORMALLY EXTENDS TO THE BURDEN OF PROOF.
19
BURDEN OF PROOF RATHER THAN CRIMINAL BURDEN OF PROOF, BUT
20
I DIDN'T BRING A TREATISE ON EQUITY WITH ME HERE TODAY.
21
THE COURT:
22
MR. WARDEN:
23
ABOUT CONFISCATION.
24
THE COURT:
25
MAYBE A CIVIL
YOU OPENED THE SUBJECT.
I OPENED THE SUBJECT BY TALKING
YOU OPENED THE SUBJECT BY TALKING
ABOUT TORT LAW AND THE BURDEN OF PROOF.
30
1
2
MR. WARDEN:
ANYTHING IN THIS CASE.
3
4
THERE IS NO PRAYER FOR FORFEITURE OF
THE COURT:
FORFEITURE AND CONFISCATION
SYNONOMOUSLY.
5
MR. WARDEN:
THERE IS NO BASIS ADDUCED IN THE
6
PROOF IN THIS CASE THAT WOULD JUSTIFY A COURT OF EQUITY
7
ACTING UNDER ANY RUBRIC OR CONDITION OR PRINCIPLE OF
8
EQUITY KNOWN TO THE ANGLO-AMERICAN LEGAL SYSTEM THAT WOULD
9
JUSTIFY CONFISCATION FORFEITURE, DIVERSION, CONVERSION, OR
10
WHATEVER, OF MICROSOFT'S INTELLECTUAL PROPERTY.
11
THE COURT:
12
MR. WARDEN:
OKAY.
EVEN THE SLIDE THAT WAS PUT UP AT
13
ONE POINT BY ONE OF THE OPPOSING COUNSEL, AND I THINK--I
14
DON'T REMEMBER WHO--TALKED ABOUT IMPOSING OBLIGATIONS TO
15
LICENSE THINGS AT REASONABLE ROYALTIES WHEN THEY HAVE BEEN
16
MISUSED, OR WHATEVER.
17
HERE.
18
WE DON'T HAVE ANYTHING LIKE THAT
NOW, I'M NOT GOING TO TRY TO GO BACK OVER THE
19
DECREEDAL PROVISIONS OF THEIRS AND OURS AGAIN, BUT I WANT
20
TO SAY ONE THING IN RESPONSE TO WHAT MR. BOIES DID THERE,
21
AND THAT IS, IF YOU GO BACK AND LOOK AT 3(A)(3)(IV), AND
22
YOU RECOGNIZE THAT THE DEFINITION OF MIDDLEWARE INCLUDES
23
OPERATING SYSTEM COMPONENTS, AND YOU RECOGNIZE THAT
24
END-USER ACCESS IS DEFINED TO INCLUDE AUTOMATIC INVOCATION
25
OF FUNCTIONALITY BY THE OPERATING SYSTEM WHEN THE USER
31
1
DIRECTS SOME FUNCTION TO BE PERFORMED, AND THE SO-CALLED
2
ALTERNATE DEFAULT MIDDLEWARE IS INCAPABLE OF PERFORMING
3
THAT FUNCTION, THAT'S STILL A PROHIBITED FORM OF END-USER
4
ACCESS.
5
6
THE COURT:
ALL RIGHT.
I FOUND THE PROVISION.
CAN YOU SAY THAT AGAIN?
7
MR. WARDEN:
WELL, YEAH.
WHEN YOU PUT TOGETHER
8
THE DEFINITION OF MIDDLEWARE AND THE DEFINITION OF
9
END-USER ACCESS, THE LATTER--AS I EXPLAINED THIS MORNING,
10
THE DEFINITION OF MIDDLEWARE IS SO BROAD THAT IT INCLUDES
11
COMPONENTS OF THE OPERATING SYSTEM THAT BOTH EXPOSE API'S
12
AND ARE INTERDEPENDENT WITH OTHER PARTS OF THE OPERATING
13
SYSTEM.
14
AND THEN WHEN YOU LOOK AT THE DEFINITION OF
15
END-USER ACCESS, IT INCLUDES AUTOMATIC INVOCATION OF CODE
16
WHEN THEY SELECTED ALTERNATIVE DEFAULT MIDDLEWARE WON'T
17
DO--IS INCAPABLE OF EXECUTING THE FUNCTION THAT THE USER
18
HAS SELECTED.
19
MIDDLEWARE EVEN AT THAT POINT, THAT IS FORBIDDEN END-USER
20
ACCESS.
21
IF YOU GO BACK TO THE MICROSOFT, QUOTE,
IN FACT, IT MEANS THE DAMN THING DOESN'T WORK.
NOW, AS TO SOURCECODE ACCESS, WE HAVE AFFORDED
22
PEOPLE, AS THE COURT IS FULL AWARE:
THE LIMITED
23
SOURCECODE ACCESS, UNDER STRICT CONTRACTUAL RESTRAINTS,
24
FOR SOUND COMMERCIAL PURPOSES.
25
THAT OWNERS OF INTELLECTUAL PROPERTY DO.
THAT IS ONE OF THE THINGS
AND YOU KNOW WHY
32
1
WITH COMPAQ, THEY'RE A CO-DEVELOPER WITH US.
2
AND AOL GOT ONLY IE, NOT THE REST OF THE PLATFORM AND FOR
3
THE PARTICULAR PURPOSE OF CREATING A PROPRIETARY CLIENT.
4
AND BRISTOL IS NOT IN COMPETITION WITH MICROSOFT AT ALL.
5
IT MAKES A VERY SPECIALTY PRODUCT--LET'S PUT IT THAT
6
WAY--AND THEY WERE GIVEN VERY LIMITED SOURCECODE LICENSES
7
TO ENABLE THEM TO DO THAT.
8
9
COMPUSERVE
IN ANY EVENT, THOSE PROVE NOTHING ABOUT WHETHER
IT'S DESIRABLE, PROPER, LAWFUL, PRUDENT, TO REQUIRE
10
MICROSOFT'S BASIC INTELLECTUAL PROPERTY TO BE EFFECTIVELY
11
PUT IN THE PUBLIC DOMAIN.
12
FINALLY, I WOULD LIKE TO SAY THAT THE FINDINGS OF
13
THE COURT THAT MR. BOIES DISPLAYED WHEN HE WAS ADDRESSING
14
THE ISSUE OF CAUSATION JUST A WHILE AGO, THAT NOTHING IN
15
THOSE FINDINGS RE: THE POSSIBLE EFFECTS OF JAVA AND
16
NAVIGATOR ARE AT ALL INCONSISTENT WITH, OR IN ANY WAY
17
CONTRADICT, THE CHAIN OF SPECULATION THAT I HAVE OUTLINED
18
ON MY OPENING ARGUMENT AND PREVIOUSLY ON ANOTHER OCCASION.
19
WITH THAT, YOUR HONOR, I WILL ONLY SAY THAT WE
20
AGREE THAT COMPETITION SHOULD BE ON THE MERITS AND THAT
21
THE REMEDY IMPOSED BY THE GOVERNMENT, EVEN THE CONDUCT
22
REMEDY ALONE, WOULD DISABLE US FROM PARTICIPATING IN THAT
23
COMPETITION BY EITHER OBLITERATING OR AT LEAST DISPERSING
24
OUR LEGITIMATE COMMERCIAL CAPABILITIES.
25
THE COURT:
ALL RIGHT.
33
1
MR. WARDEN:
OKAY.
NOW, THAT'S ALL I WOULD HAVE
2
TO SAY.
3
MAY, WHETHER THE COURT NOW KNOWS WHAT FURTHER PROCESS, IF
4
ANY, THERE WILL BE; AND IF NOT, WHEN WE MIGHT KNOW THAT.
5
I WOULD LIKE AT THIS POINT TO ASK THE COURT, IF I
THE COURT:
6
PROCESS, MR. WARDEN.
7
MR. WARDEN:
I'M NOT CONTEMPLATING ANY FURTHER
OKAY.
IF YOU CONTEMPLATE NO FURTHER
8
PROCESS, YOUR HONOR, I HAVE TWO REQUESTS.
THE FIRST IS
9
I'M GOING TO ASK MR. HOLLEY TO MAKE AN OFFER OF PROOF
10
WHICH IS IN VERY PRELIMINARY FORM.
AND SECOND, I WOULD
11
REQUEST THAT WHEN THE COURT HAS DETERMINED WHAT
12
SUBSTANTIVE PROVISIONS IT INTENDS TO INCLUDE IN A JUDGMENT
13
THAT THE PARTIES AND THE GOVERNMENT, AS WELL AS US, BE
14
GIVEN 48 HOURS TO COMMENT ON THE FORM OF THE PROPOSED
15
DECREE PRIOR TO ITS ENTRY.
16
THAT, BUT I'M MAKING THAT REQUEST.
YOUR HONOR NEEDN'T RESPOND TO
17
THE COURT:
I HAVE NO PROBLEM WITH THAT.
18
HOW LONG WILL IT TAKE THE PLAINTIFFS TO PRESENT
19
ME WITH A CLEAN COPY OF A FORM OF FINAL JUDGMENT WHICH
20
WOULD REFLECT PROCEEDINGS HERE TODAY?
21
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MR. BOIES:
WE OUGHT TO BE ABLE TO DO THAT VERY
PROMPTLY, YOUR HONOR.
23
THE COURT:
YES.
TOMORROW?
FRIDAY?
24
MR. BOIES:
CERTAINLY BY FRIDAY.
25
THE COURT:
ALL RIGHT.
AND YOU WOULD LIKE 48
34
1
HOURS TO COMMENT ON THAT, MR. WARDEN?
2
MR. WARDEN:
3
THE COURT:
4
MR. WARDEN:
5
OFFER OF PROOF.
YES.
OKAY.
I WILL ASK MR. HOLLEY TO MAKE OUR
THANK YOU.
6
THE COURT:
7
MR. HOLLEY:
OKAY.
I WOULD LIKE TO HAND UP TO THE COURT
8
A DOCUMENT ENTITLED "DEFENDANT MICROSOFT CORPORATION'S
9
OFFER OF PROOF."
10
THE COURT:
11
MR. HOLLEY:
ALL RIGHT.
THAT SHALL BE FILED.
I DON'T INTEND TO READ IT TO YOUR
12
HONOR, BUT I WOULD LIKE TO IN VERY BRIEF OUTLINE DESCRIBE
13
WHAT IS CONTAINED IN IT.
14
THE COURT:
IS THIS THE ORIGINAL?
15
MR. HOLLEY:
16
FILE WITH THE CLERK'S OFFICE.
THE ORIGINAL, YOUR HONOR, WE WILL
THAT IS A COURTESY COPY.
17
THE COURT:
GIVE IT TO MR. WEST.
18
MR. WARDEN:
WE'LL DO THAT, YOUR HONOR.
19
MR. HOLLEY:
MICROSOFT, IF GIVEN AN OPPORTUNITY
20
TO DO SO, AT AN EVIDENTIARY HEARING, WOULD PROVE EACH AND
21
EVERY ONE OF THE FACTUAL ASSERTIONS CONTAINED IN THE
22
DOCUMENT ENTITLED "DEFENDANT MICROSOFT CORPORATION'S
23
SUMMARY RESPONSE TO PLAINTIFFS' PROPOSED FINAL JUDGMENT"
24
DATED MAY 10TH, 2000.
25
IN ADDITION, IF GIVEN AN OPPORTUNITY TO DO SO AT
35
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AN EVIDENTIARY HEARING, MICROSOFT WOULD CALL, AMONG
2
OTHERS, THE FOLLOWING WITNESSES:
3
SENIOR FELLOW AT THE BROOKINGS INSTITUTION IN WASHINGTON,
4
D.C., ON MICROSOFT'S BEHALF.
5
EVERY MAJOR SECTION 2 MONOPOLIZATION CASE SINCE THE
6
PASSAGE OF THE SHERMAN ACT THAT RESULTED IN THE AWARD OF
7
STRUCTURAL RELIEF, AND THAT ANALYSIS DEMONSTRATES THAT
8
DESPITE ASSURANCES FROM THE GOVERNMENT AND THE CONFIDENT
9
PREDICTIONS OF ITS EXPERTS AT THIS TIME, SUCH STRUCTURAL
DR. ROBERT CRANDALL IS A
DOCTOR CRANDALL HAS ANALYZED
10
RELIEF HAS, AS A GENERAL MATTER, FAILED TO IMPROVE
11
ECONOMIC WELFARE EITHER BY REDUCING PRICES OR INCREASING
12
OUTPUT.
13
14
THE COURT:
SAYS IN THE OFFER OF PROOF; IS THAT CORRECT?
15
MR. HOLLEY:
16
THE COURT:
17
18
MR. HOLLEY, THAT'S IN ESSENCE WHAT HE
THE WHOLE THING.
THAT IS CORRECT, YOUR HONOR.
OKAY.
YOU DON'T HAVE TO GO THROUGH
THAT WILL SPEAK FOR ITSELF.
MR. HOLLEY:
OKAY, YOUR HONOR.
I WOULD JUST LIKE
19
TO SAY THAT IN ADDITION TO BOTH THE FACTUAL ASSERTIONS
20
THAT MICROSOFT WOULD PROVE FROM THE SUMMARY RESPONSE AND
21
THE WITNESSES WHOSE TESTIMONY IS REFLECTED IN THE OFFER OF
22
PROOF, MICROSOFT WOULD, IN ADDITION, IF GIVEN A FAIR
23
OPPORTUNITY TO DO SO, DEVELOP THE TESTIMONY OF OTHER
24
INDUSTRY PARTICIPANTS WHO WOULD TESTIFY ABOUT THE SEVERE
25
ADVERSE EFFECTS THAT WOULD FLOW FROM ENTRY OF THE
36
1
GOVERNMENT'S PROPOSED FINAL JUDGMENT.
2
AND QUALITY OF EVIDENCE THAT MICROSOFT HAS ASSEMBLED IN
3
THE BRIEF TIME AVAILABLE, THERE IS EVERY REASON TO BELIEVE
4
THAT MICROSOFT COULD ASSEMBLE FAR MORE EVIDENCE IF GIVEN
5
AN OPPORTUNITY TO DO SO.
6
THANK YOU, YOUR HONOR.
7
THE COURT:
8
MR. HOLLEY:
9
THE COURT:
10
GIVEN THE AMOUNT
IN THE BRIEF TIME GIVEN?
THAT'S CORRECT, YOUR HONOR.
THIS CASE HAS BEEN PENDING FOR TWO
YEARS, MR. HOLLEY.
11
MR. HOLLEY:
YOUR HONOR, IN THE CONFERENCES THAT
12
PRECEDED THE FILING OF THE GOVERNMENT'S PROPOSED FINAL
13
JUDGMENT, IT WAS MADE ABSOLUTELY CLEAR BY THE MICROSOFT
14
CORPORATION THAT IT WAS NOT GOING TO--AND, IN FACT, YOUR
15
HONOR SAID IT WOULD BE FAIR AND APPROPRIATE FOR MICROSOFT
16
NOT TO--DO ANYTHING OTHER THAN PREPARE THE DOCUMENTS THAT
17
WERE FILED ON THE 10TH OF MAY OF 2000.
18
THANK YOU, YOUR HONOR.
19
THE COURT:
MR. BOIES?
20
MR. BOIES:
YOUR HONOR, I DON'T WANT OUR SILENCE
21
TO BE SUGGESTIVE THAT WE THINK THIS WAS FILED EITHER IN
22
TIMELINESS OR IN FORM OF AN APPROPRIATE OFFER.
23
24
25
MR. WARDEN:
WE HAVE NOTHING MORE TODAY, YOUR
HONOR.
THE COURT:
VERY WELL.
MATTER IS SUBMITTED.
37
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THANK YOU, COUNSEL.
WE WILL STAND IN RECESS.
(WHEREUPON, AT 3:07 P.M., THE HEARING WAS
ADJOURNED.)
38
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CERTIFICATE OF REPORTER
2
3
I, DAVID A. KASDAN, RMR-CRR, COURT REPORTER, DO
4
HEREBY TESTIFY THAT THE FOREGOING PROCEEDINGS WERE
5
STENOGRAPHICALLY RECORDED BY ME AND THEREAFTER REDUCED TO
6
TYPEWRITTEN FORM BY COMPUTER-ASSISTED TRANSCRIPTION UNDER
7
MY DIRECTION AND SUPERVISION; AND THAT THE FOREGOING
8
TRANSCRIPT IS A TRUE RECORD AND ACCURATE RECORD OF THE
9
PROCEEDINGS.
10
I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR,
11
RELATED TO, NOR EMPLOYED BY ANY OF THE PARTIES TO THIS
12
ACTION IN THIS PROCEEDING, NOR FINANCIALLY OR OTHERWISE
13
INTERESTED IN THE OUTCOME OF THIS LITIGATION.
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______________________
DAVID A. KASDAN