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Original Articles

United States v Microsoft: Ill-Considered Antitrust

Pages 99-120 | Published online: 21 Jul 2010

References

  • L.J. White, Antitrust vs Microsoft: Who Won?, at (gopher:swiss.stern.nyu.edu.70/00/orgst/stbus/antitrust)
  • Ballmer , Steve . 1998 . 'Microsoft Official Says Battle is Taking a Toll' . Washington Post , 8 January : C01
  • Wallace , J. and Erickson , J. Hard Drive: Bill Gates and the Making of the Microsoft Empire , John Wiley & Sons . Microsoft has been the subject of, for example, a best-selling novel (D. Coupland, Microserfs, Flamingo 1996), a number of analyses that focus exclusively on its activities
  • Stross , R. E. 1996 . The Microsoft Way: The real story of how the company outsmarts its competition , Little Brown and Company . and works dealing with the computer industry generally that necessarily devote a lot of space to the company
  • Cringely , R.X. 1996 . Accidental Empires , Penguin .
  • Malkin , M. 1997 . 'We Don't Need Reno's Help to "Save" us from Microsoft' . Seattle Times , 28 October See, for example; 'it's hard to see how any honest Microsoft user could let Attorney General Janet Reno get away with claiming that the world's most successful personal computersoftware company "undermines consumer choice"'
  • Thorelli , H.B. 1955 . The Federal Antitrust Policy , John Hopkins Press .
  • Dratler , J. Jr . 1996 . 'Microsoft as an Antitrust target: IBM in software?' . Southwestern University Law Review , 671 : 671 – 673 . footnotes omitted
  • Levinson , R. J. 1996 . 'Concerns raised by recent software-related antitrust cases' . XLI Antitrust Bulletin , : 43
  • Arthur , W. Brian . 1996 . 'Increasing returns and the new world of business' . Harvard Business Review , July-August : 100 The point was also made by Professor K. Arrow, in a supporting brief prepared for the DOJ during the Consent Decree procedure (see below). As Judge Sporkin noted, 'in layman's terms [it] means that once a company has a monopoly position, it is extremely hard to dislodge it' (United States v Microsoft Corporation Civil Action No. 94-1564, unreported)
  • Malone , M. S. 1995 . The Microprocessor: A Biography , 176 TELOS .
  • 1998 . Washington Post , 22 January : E01
  • Baseman , K. C. , Warren-Boulton , F. R. and Woroch , G. A. 1995 . 'Microsoft plays hardball: the use of exclusionary pricing and technical incompatibility to maintain monopoly power in markets for operating system software' . XL Antitrust Bulletin , : 265 267
  • Comegys , W.B. 1994 . Antitrust Compliance Manual: A Guide for Counsel and Executives of Business and Professions, , 2nd edn , 12 Practicing Law Institute .
  • Rohm , W. Goldman . 'Oh No, Mr Bill! The inside story of the US Government's antitrust case against microsoft' . WIRED Online , For the story of the genesis of the action see at (http:www.vanderbilt.edu/owen/froeb/mgt352/mrbill)
  • Heller , R. 1994 . Tbe Fate of IBM, Warner Books 251
  • Weiner , M.L. 1995 . 'Antitrust and the rise of the Regulatory Consent Decree' . Antitrust , 4 Fall
  • Melamed , A.D. 1995 . 'Antitrust: The New Regulation' . Antitrust , 13 Fall
  • Anderson , L. C. 1998 . 'United States v Microsoft, Antitrust Consent Decrees, and the need for a proper scope of Judicial Review' . Antitrust Law Journal , : 1
  • 1998 . 'The lawyer presents his Bill' . The Guardian , 22 January Gary Reback has become a well-known and frequently-profiled figure following his very vocal criticism of Microsoft, see e.g.
  • McFarland , H. B. 1998 . 'Can a product pre-Announcement be a predatory act?' . Computer Industry , : 11 The treatment of such announcements as anti-competitive is considered by
  • Gifford , D. J. 1996 . 'Microsoft Corporation, the Justice Department, and antitrust theory' . Southwestern University Law Review , : 621 For an analysis of some of the arguments raised by the Consent Decree, in particular relating to the development path of technology, see
  • 1997 . Washington Post , 16 November : Al Paragraph 14 of the petition. The benefits of such a move to other developers have been made explicit. See, e.g.: ' "There's a very strong incentive for us to push as hard and as fast as possible toward a world where operating systems are commoditized, chips are commoditized, and the Net becomes the platform", said Marc Andreessen, chief technology officer at Netscape Communications in Mountain View, CA "We all see an opportunity to make a tremendous amount of money as that world unfolds--as opposed to a world where everything is Microsoft and Intel".'
  • Furse , M . 1995 . 'Microsoft, antitrust and the computing industry' . Computer Law and Practice , : 173 In an article written shortly after the entry of the Consent Decree Final Judgment, I noted p. 176, that the ability to agree was 'encouraging, but the battle will be more intense if the matter becomes one of corporate survival'. Microsoft's interests are now too diverse for its survival to hinge on any single factor, but this case may be one of the biggest threats it has faced
  • 1998 . Washington Post , 7 January : D11 Microsoft later sought to have this appointment rescinded, claiming that Lessig had 'preconceived notions [about] Microsoft and the government's proper role in the development of software products'. On 5 January 1998 the company wrote to the Professor, asking him to disqualify himself. The Professor refused to do so. See On 14 January Judge Jackson refused to rescind the order, but on 2 February 1998, following an appeal made by Microsoft on 16 December 1997 the Court of Appeals rescinded the Judge's order. The Court of Appeals has also ordered that all documents must be submitted to the Court by 9 March 1998
  • 1998 . Washington Post , 8 January : C01 Steve Ballmer has publicly admitted that Microsoft is concerned about the damage to its image. See' the perception is that we're a harsh company that's using its power improperly'
  • 1997 . 'Microsoft told to suspend software link' . Washington Post , 12 December : A01 See, e.g. The distribution of free software has also been criticized as predatory, a charge that offends Microsoft given that Netscape attained its market position by precisely that tactic
  • 1998 . 'Microsoft, Justice settle part of case' . Seattle Times , 22 January
  • 1997 . Washington Post , 20 December : C01 This fact was confirmed by Judge Jackson, who reportedly carried out his own experiment: 'with the guidance of a courthouse technician [the Judge] said it took about 90 seconds to "uninstall" Microsoft's Internet Explorer browser from a new PC. After that process "windows 95 functioned flawlessly as it was intended to operate"
  • 1998 . Washington Post , 23 January : G01 Described by a Microsoft executive as 'a pure hiding rather than a removing approach'
  • 1998 . 'Microsoft: Agrees to settle part of antitrust pronounced on Microsoft, whose shares rose by $1 1/8 dispute' . Financial Times , 23 January It is interesting that the share values in both Microsoft and Netscape rose following the announcement, although the effect was more
  • 1997 . 'Climbdown by Microsoft' . The Times , 25 November The matter was resolved following an undertaking by Microsoft to amend its licenses, see
  • 1997 . 'MS fends off trouble' . Computing , 27 November : 3
  • Keyte , J. A. 1995 . 'Market definition and differentiated products: The need for a workable standard' . Antitrust Law Journal , 63 : 697 US Healthcare Inc v Healthsource Inc (986 F.2d 589), quoted in
  • Furse , M. 1997 . 'Market definition--the draft Commission Notice' . European Competition Law Review , : 378 Available at http:europa.eu.int/en/comm/dg04. See
  • Harz , M. 1994 . 'Dominance and duty in the European Union: a look through Microsoft Windows at the essential facilities doctrine' . Emory International Law Review , 11 : 189 See, for example, M. Chu's presentation at 'Appraising Microsoft' (note 89, below), and
  • Areeda , P. 1990 . 'Essential facilities: an epithet in need of limiting principles' . Antitrust Law Journal , : 841 MCI Communications Corp and MCI Telecommunications Corp v American Telephone and Telegraph Co, 708 F.2d 1081 (1983), para 32. For a discussion of the operation of the doctrine in America see
  • Furse , M. 1995 . 'The "Essential Facilities" Doctrine in Community Law' . European Competition Law Review , : 469
  • British Midland/Aer Lingus, 22nd Report on Competition Policy, 1992, point 218.
  • November 13-14 1997 . “ 'Appraising Microsoft and its Global Strategy' ” . November 13-14 , Washington DC Notably at a conference sponsored by Ralph Nader and Essential Information
  • 1997 . 'Bill Gates beware, America's consumer crusader is on to you' . The Independent , 18 November This brought together many of Microsoft's more persuasive and forceful critics, and, because of the involvement of Ralph Nader, attracted media attention world-wide (see e.g. Conference presentations are available at (http:www.appraising-microsoft.org)
  • Miller , S. R. 1996 . 'Does Netscape really have antitrust claims against Microsoft?' . The Computer Lawyer , November : 7 Although see
  • First , H. 1995 . 'Is Antitrust "Law"?' . Antitrust , Fall : 9 See e.g.M.L. Weiner, and A.D. Melamed, note 36 above

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