Federal Register/Vol. 67, No. 86/Friday, May 3, 2002/Notices

28124 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices MTC–00027805 UNITED STATES OF AMERICA, against Microsoft. Fred Vogelstein, The Long From: Sudha Plaintiff, v. Civil Action No. 98–1232 Shadow of XP, Fortune, Nov. 12, 2001. Each To: Microsoft ATR (CKK) MICROSOFT CORPORATION, of these companies dominates a particular Date: 1/28/02 11:04am Defendant. STATE OF NEW YORK ex market that is distinct enough from Intel- Subject: LOGICAL EXPLANATION— rel.Attorney General ELIOT SPITZER, et compatible PCs not to be a part of this case, Freedom to Innovate al.,Plaintiffs,) v. Civil Action No. 98–1233 but related enough that Microsoft’s rivals fear Below are comments to specific issues (CKK) MICROSOFT Microsoft’s competition. For example, Sun addressed in the Court Case, http:// CORPORATION,Defendant. Microsystems dominates the market for www.usdoj.gov/atr/cases/ms-settle.htm#docs COMMENTS OF THE ASSOCIATION FOR server operating systems, but its market share Item #2: Someone else please invent a COMPETITIVE TECHNOLOGY is being eroded by lower-cost alternatives better operating system than Windows! Also The Association for Competitive from Linux and Windows. Why Competitors if MS Windows has monopoly, what about Technology (‘‘ACT’’) hereby submits its Are Largely Quiet on Microsoft Settlement, Intel—would they be ‘‘monopolizing’’ the comments on the Revised Proposed Final Associated Press, Nov. 15, 2001; Peter intel chip market? Judgment (‘‘RPFJ’’) that has been proposed by Burrows, Face-Off, Bus. Wk., Nov. 19, 2001, Item #3: A better operating system will most of the plaintiffs, including the United at 104. In asking for must-carry provisions for always win the user market. States, and defendant Microsoft Corporation. Java, limits on technical integration and the Item #4: How ridiculous! When Netscape ACT is a trade association representing some use of Microsoft middleware, and restrictions owned 70% of the market, was it not a 3,000 information technology (‘‘IT’’) on Microsoft’s investment in intellectual monopoly? companies, including Microsoft, on a number property, Sun seeks to maintain its Item #7: Java is very difficult to learn. of issues important to the industry. ACT’s stranglehold over the server marketplace. Training is unaffordably expensive. mission is to promote a vibrant, competitive Similarly, Oracle enjoys a privileged position Item #11: Netscape is NOT the browser IT industry and a vibrant IT marketplace in in the server database market but it, too, is innovator—give credit to the real innovator, which consumers, not the government, pick facing stiff competition from lower-priced please!!! (universities!) winners and losers. Because ACT believes alternatives that are gaining increasing favor Item #18: Microsoft has a right to ‘‘tie’’ all that, on balance, the RPFJ will be good for with reviewers and customers. As Oracle ITS products together! Integrating both the industry and consumers, it supports tries to move into different markets, such as applications makes better use of system the RPFJ. ACT also opposes the radical e-mail, where consumers expect tighter resources. proposals advanced by the remaining integration, it will be unable to maintain its Item #24, 25: As long as Windows is the plaintiffs because they would harm the high prices unless Microsoft’s capacity for operating system used, the creator of industry and serve no other purpose than to product improvement is limited. Finally, Windows, who is Microsoft, has the right to advance the interests of such Microsoft rivals Microsoft and AOL are both dominant present it anywhich way to the users as they as Sun Microsystems, Oracle, and AOL Time companies, orbiting in separate if please—basic human right of ownership! Warner. overlapping domains. Yet both companies Additional Comments: Seems to me like INTRODUCTION AND SUMMARY regard themselves as being on a collision other vendors like IBM and Sun and The purpose of a Tunney Act proceeding course, as all forms of information and Netscape had nothing to complain about as is to determine whether the settlement that entertainment, including music and movies, long as THEY owned the lion’s share of the the federal government has entered into is are increasingly rendered in digital form. market. Their products were difficult to use within the reaches of the public interest. Steve Lohr, In AOL’s Suit Against Microsoft, and hard to learn. United States v. Microsoft Corp., 56 F.3d the Key Word Is Access, N.Y. Times, Jan. 24, Microsoft brought the computing technolgy 1448, 1460 (DC Cir. 1995) (internal quotation 2001. An internal document makes clear that to the layman’s door making it possible for marks and emphasis omitted). The RPFJ AOL is willing to take any necessary steps to the total computer illiterate people to be able easily meets that forgiving standard. Indeed, gain control of the desktop, including even to actually use the computer in effective and as shown in detail below, this conclusion is spreading false rumors about the stability of efficient ways, which would have been easily established by measuring the RPFJ Windows XP. See http:// totally impossible otherwise! against four settled principles that govern www.betanews.com/aol.html. Sudha relief in all antitrust cases, and by comparing 4 Beyond these companies’ own statements Database Administrator the RPFJ to the radical remedies that have and court filings their views are parroted by Department of Human Oncology been proposed by the States that have refused various proxies. These include organizations Telephone: 608.263.1549 to consent to the RPFJ (‘‘Litigating States’’). that were specifically formed to hobble Email: <mailto:sudha@ First, it is well settled that an antitrust Microsoft, such as the misnamed Project to mail.humonc.wisc.edu> sudha@ remedy should be designed to protect Promote Competition and Innovation in the mail.humonc.wisc.edu consumers rather than advance the interests Digital Age (‘‘ProComp’’), and existing trade of competitors. The RPFJ will accomplish organizations that these companies have MTC–00027806 this goal. It prevents Microsoft from engaging recently joined and come to dominate, such From: Bartucz, Tanya Y. in exclusionary or retaliatory tactics, as well as the Computer and Communications To: ‘‘microsoft.atr(a)usdoj.gov’’ as foreclosing a number of more specific Industry Association (‘‘CCIA’’) and the Date: 1/28/02 11:03am paths to unfair competition. However, it is Software Information Industry Assocation Subject: Tunney Act Comments carefully crafted to ensure that Windows will (‘‘SIIA’’). The apparently high level of Attached please find the Association for remain available to consumers as a reliable coordination between these groups and the Competitive Technology’s Tunney Act operating platform. Litigating States’ counsel is ample reason for comments on the Microsoft settlement. A By contrast, many of the Litigating States’ skepticism when examining some of the paper copy has been submitted by fax. proposals seem to have been designed by States’ arguments. Tanya Bartucz Microsoft’s competitors. Indeed, the The reality is that these rivals, both Sidley Austin Brown & Wood LLP companies that will benefit most from the directly and through their proxies, are trying 1501 K Street, NW Litigating States’ efforts are the same ones to use the courts to increase their own profits Washington, DC 20005 that have led the campaign to scuttle rather than consumer satisfaction. This is (202) 736–8067 settlement efforts case and to impose far- shown by the fact that, while they condemn Fax (202) 736–8711 reaching restrictions on Microsoft: AOL Time Microsoft for integrating its products, they, This e-mail is sent by a law firm and may Warner, Sun Microsystems, Oracle, IBM, and too, are vying to bring integrated products to contain information that is privileged or Apple. As a prominent commentator recently consumers. For example, Sun’s SunONE confidential. noted, Microsoft’s enemies were largely initiative tries to offer the same level of If you are not the intended recipient, responsible for instigating the lawsuit and integration as Microsoft’s .Net service. See please delete the e-mail and any attachments were active behind the scenes in helping the SunONE, Services on Demand vision, at and notify us immediately. government frame the charges and compile http://www.sun.com/software/sunone/ IN THE UNITED STATES DISTRICT the evidence. Executives from Sun, AOL, overview/vision/. Not surprisingly, Oracle COURT FOR THE DISTRICT OF COLUMBIA Netscape and other companies testified shares this vision of a global network of VerDate 11<MAY>2000 05:00 Apr 28, 2002 Jkt 189961 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\OC\A74AD3.275 pfrm01 PsN: ADVBOOK9 Federal Register / Vol. 67, No. 86 / Friday, May 3, 2002 / Notices 28125 centralized information and online services. upon it. The Litigating States’ proposals enhancement Iˆ of competitors. Robert H. It envisions an all- Oracle solution, advising would also weaken intellectual property Bork, The Antitrust Paradox 51, 56–89 businesses to ‘‘wage their own war on protections, setting an unnerving precedent (1978); see also National Collegiate Athletic complexity’’ by turning to Oracle for ‘‘an for any IT firm aspiring to lead its market, Ass’n v. Board of Regents, 468 U.S. 85, 107 integrated, complete software suite.’’ AOL is and slow the pace of research and (1984). likewise promoting its ‘‘AOL anywhere’’ development in the IT field. Fourth, an It follows that any remedy

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