IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICROSOFT CORPORATION,
Defendant.
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Civil Action No. 98-1232 (CKK) |
SECOND MODIFIED FINAL JUDGMENT
(Originally Entered November 12, 2002; Modified September
7, 2006;
Further Modified ______, 2009)
WHEREAS, plaintiffs United States of America ("United States") and
the States of New York, Ohio, Illinois, Kentucky, Louisiana, Maryland,
Michigan, North Carolina and Wisconsin and defendant Microsoft Corporation
("Microsoft"), by their respective attorneys, have consented to the
entry of this Final Judgment;
AND WHEREAS, this Final Judgment does not constitute any admission
by any party regarding any issue of fact or law;
AND WHEREAS, Microsoft agrees to be bound by the provisions of this
Final Judgment pending its approval by the Court;
NOW THEREFORE, upon remand from the United States Court of Appeals
for the District of Columbia Circuit, and upon the consent of the aforementioned
parties, it is hereby ORDERED, ADJUDGED, AND DECREED:
I. Jurisdiction
This Court has jurisdiction of the subject matter of this action and
of the person of Microsoft.
II. Applicability
This Final Judgment applies to Microsoft and to each of its officers,
directors, agents, employees, subsidiaries, successors and assigns;
and to all other persons in active concert or participation with any
of them who shall have received actual notice of this Final Judgment
by personal service or otherwise.
III. Prohibited Conduct
A. Microsoft shall not retaliate against an OEM by altering Microsoft's
commercial relations with that OEM, or by withholding newly introduced
forms of non-monetary Consideration (including but not limited to new
versions of existing forms of non-monetary Consideration) from that
OEM, because it is known to Microsoft that the OEM is or is contemplating:
- developing, distributing, promoting, using, selling, or licensing
any software that competes with Microsoft Platform Software or any
product or service that distributes or promotes any Non-Microsoft
Middleware;
- shipping a Personal Computer that (a) includes both a Windows
Operating System Product and a non-Microsoft Operating System, or
(b) will boot with more than one Operating System; or
- exercising any of the options or alternatives provided for under
this Final Judgment.
Nothing in this provision shall prohibit Microsoft from enforcing any
provision of any license with any OEM or any intellectual property right
that is not inconsistent with this Final Judgment. Microsoft shall not
terminate a Covered OEM's license for a Windows Operating System Product
without having first given the Covered OEM written notice of the reasons
for the proposed termination and not less than thirty days' opportunity
to cure. Notwithstanding the foregoing, Microsoft shall have no obligation
to provide such a termination notice and opportunity to cure to any
Covered OEM that has received two or more such notices during the term
of its Windows Operating System Product license.
Nothing in this provision shall prohibit Microsoft from providing Consideration
to any OEM with respect to any Microsoft product or service where that
Consideration is commensurate with the absolute level or amount of that
OEM's development, distribution, promotion, or licensing of that Microsoft
product or service.
B. Microsoft's provision of Windows Operating System Products to Covered
OEMs shall be pursuant to uniform license agreements with uniform terms
and conditions. Without limiting the foregoing, Microsoft shall charge
each Covered OEM the applicable royalty for Windows Operating System
Products as set forth on a schedule, to be established by Microsoft
and published on a web site accessible to the Plaintiffs and all Covered
OEMs, that provides for uniform royalties for Windows Operating System
Products, except that:
- the schedule may specify different royalties for different language
versions;
- the schedule may specify reasonable volume discounts based upon
the actual volume of licenses of any Windows Operating System Product
or any group of such products; and
- the schedule may include market development allowances, programs,
or other discounts in connection with Windows Operating System Products,
provided that:
- such discounts are offered and available uniformly to all Covered
OEMs, except that Microsoft may establish one uniform discount schedule
for the ten largest Covered OEMs and a second uniform discount schedule
for the eleventh through twentieth largest Covered OEMs, where the
size of the OEM is measured by volume of licenses;
- such discounts are based on objective, verifiable criteria that
shall be applied and enforced on a uniform basis for all Covered
OEMs; and
- such discounts or their award shall not be based on or impose
any criterion or requirement that is otherwise inconsistent with
any portion of this Final Judgment.
C. Microsoft shall not restrict by agreement any OEM licensee from
exercising any of the following options or alternatives:
- Installing, and displaying icons, shortcuts, or menu entries for,
any Non-Microsoft Middleware or any product or service (including
but not limited to IAP products or services) that distributes, uses,
promotes, or supports any Non-Microsoft Middleware, on the desktop
or Start menu, or anywhere else in a Windows Operating System Product
where a list of icons, shortcuts, or menu entries for applications
are generally displayed, except that Microsoft may restrict an OEM
from displaying icons, shortcuts and menu entries for any product
in any list of such icons, shortcuts, or menu entries specified in
the Windows documentation as being limited to products that provide
particular types of functionality, provided that the restrictions
are non-discriminatory with respect to non-Microsoft and Microsoft
products.
- Distributing or promoting Non-Microsoft Middleware by installing
and displaying on the desktop shortcuts of any size or shape so long
as such shortcuts do not impair the functionality of the user interface.
- Launching automatically, at the conclusion of the initial boot
sequence or subsequent boot sequences, or upon connections to or disconnections
from the Internet, any Non-Microsoft Middleware if a Microsoft Middleware
Product that provides similar functionality would otherwise be launched
automatically at that time, provided that any such Non-Microsoft Middleware
displays on the desktop no user interface or a user interface of similar
size and shape to the user interface displayed by the corresponding
Microsoft Middleware Product.
- Offering users the option of launching other Operating Systems
from the Basic Input/Output System or a non-Microsoft boot-loader
or similar program that launches prior to the start of the Windows
Operating System Product.
- Presenting in the initial boot sequence its own IAP offer provided
that the OEM complies with reasonable technical specifications established
by Microsoft, including a requirement that the end user be returned
to the initial boot sequence upon the conclusion of any such offer.
- Exercising any of the options provided in Section III.H of this
Final Judgment.
D. Starting at the earlier of the release of Service Pack 1 for
Windows XP or 12 months after the submission of this Final Judgment
to the Court, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and
OEMs, for the sole purpose of interoperating with a Windows Operating
System Product, via the Microsoft Developer Network ("MSDN") or similar
mechanisms, the APIs and related Documentation that are used by Microsoft
Middleware to interoperate with a Windows Operating System Product.
For purposes of this Section III.D, the term APIs means the interfaces,
including any associated callback interfaces, that Microsoft Middleware
running on a Windows Operating System Product uses to call upon that
Windows Operating System Product in order to obtain any services from
that Windows Operating System Product. In the case of a new major version
of Microsoft Middleware, the disclosures required by this Section III.D
shall occur no later than the last major beta test release of that Microsoft
Middleware. In the case of a new version of a Windows Operating System
Product, the obligations imposed by this Section III.D shall occur in
a Timely Manner.
E. Starting nine months after the submission of this proposed Final
Judgment to the Court, Microsoft shall make available for use by third
parties, for the sole purpose of interoperating or communicating with
a Windows Operating System Product, on reasonable and non-discriminatory
terms (consistent with Section III.I), any Communications Protocol that
is, on or after the date this Final Judgment is submitted to the Court,
(i) implemented in a Windows Operating System Product installed
on a client computer, and (ii) used to interoperate, or communicate,
natively (i.e., without the addition of software code to the
client operating system product) with a Microsoft server operating system
product.
F.
- (Effective November 12, 2007, this provision shall apply only with
respect to matters related to Section III.E of the Final Judgment.)
Microsoft shall not retaliate against any ISV or IHV because of that
ISV's or IHV's:
- developing, using, distributing, promoting or supporting any software
that competes with Microsoft Platform Software or any software that
runs on any software that competes with Microsoft Platform Software,
or
- exercising any of the options or alternatives provided for under
this Final Judgment.
- Microsoft shall not enter into any agreement relating to a Windows
Operating System Product that conditions the grant of any Consideration
on an ISV's refraining from developing, using, distributing, or promoting
any software that competes with Microsoft Platform Software or any
software that runs on any software that competes with Microsoft Platform
Software, except that Microsoft may enter into agreements that place
limitations on an ISV's development, use, distribution or promotion
of any such software if those limitations are reasonably necessary
to and of reasonable scope and duration in relation to a bona fide
contractual obligation of the ISV to use, distribute or promote any
Microsoft software or to develop software for, or in conjunction with,
Microsoft.
- Nothing in this section shall prohibit Microsoft from enforcing
any provision of any agreement with any ISV or IHV, or any intellectual
property right, that is not inconsistent with this Final Judgment.
G. Microsoft shall not enter into any agreement with:
- any IAP, ICP, ISV, IHV or OEM that grants Consideration on the
condition that such entity distributes, promotes, uses, or supports,
exclusively or in a fixed percentage, any Microsoft Platform Software,
except that Microsoft may enter into agreements in which such an entity
agrees to distribute, promote, use or support Microsoft Platform Software
in a fixed percentage whenever Microsoft in good faith obtains a representation
that it is commercially practicable for the entity to provide equal
or greater distribution, promotion, use or support for software that
competes with Microsoft Platform Software, or
- any IAP or ICP that grants placement on the desktop or elsewhere
in any Windows Operating System Product to that IAP or ICP on the
condition that the IAP or ICP refrain from distributing, promoting
or using any software that competes with Microsoft Middleware.
Nothing in this section shall prohibit Microsoft from entering into
(a) any bona fide joint venture or (b) any joint development
or joint services arrangement with any ISV, IHV, IAP, ICP, or OEM for
a new product, technology or service, or any material value-add to an
existing product, technology or service, in which both Microsoft and
the ISV, IHV, IAP, ICP, or OEM contribute significant developer or other
resources, that prohibits such entity from competing with the object
of the joint venture or other arrangement for a reasonable period of
time.
This Section does not apply to any agreements in which Microsoft licenses
intellectual property in from a third party.
H. Starting at the earlier of the release of Service Pack 1 for
Windows XP or 12 months after the submission of this Final Judgment
to the Court, Microsoft shall:
- Allow end users (via a mechanism readily accessible from the desktop
or Start menu such as an Add/Remove icon) and OEMs (via standard preinstallation
kits) to enable or remove access to each Microsoft Middleware Product
or Non-Microsoft Middleware Product by (a) displaying or removing
icons, shortcuts, or menu entries on the desktop or Start menu, or
anywhere else in a Windows Operating System Product where a list of
icons, shortcuts, or menu entries for applications are generally displayed,
except that Microsoft may restrict the display of icons, shortcuts,
or menu entries for any product in any list of such icons, shortcuts,
or menu entries specified in the Windows documentation as being limited
to products that provide particular types of functionality, provided
that the restrictions are non-discriminatory with respect to non-Microsoft
and Microsoft products; and (b) enabling or disabling automatic
invocations pursuant to Section III.C.3 of this Final Judgment that
are used to launch Non-Microsoft Middleware Products or Microsoft
Middleware Products. The mechanism shall offer the end user a separate
and unbiased choice with respect to enabling or removing access (as
described in this subsection III.H.1) and altering default invocations
(as described in the following subsection III.H.2) with regard to
each such Microsoft Middleware Product or Non-Microsoft Middleware
Product and may offer the end-user a separate and unbiased choice
of enabling or removing access and altering default configurations
as to all Microsoft Middleware Products as a group or all Non-Microsoft
Middleware Products as a group.
- Allow end users (via an unbiased mechanism readily available from
the desktop or Start menu), OEMs (via standard OEM preinstallation
kits), and Non-Microsoft Middleware Products (via a mechanism which
may, at Microsoft's option, require confirmation from the end user
in an unbiased manner) to designate a Non-Microsoft Middleware Product
to be invoked in place of that Microsoft Middleware Product (or vice
versa) in any case where the Windows Operating System Product would
otherwise launch the Microsoft Middleware Product in a separate Top-Level
Window and display either (i) all of the user interface elements
or (ii) the Trademark of the Microsoft Middleware Product.
Notwithstanding the foregoing Section III.H.2, the Windows Operating
System Product may invoke a Microsoft Middleware Product in any instance
in which:
- that Microsoft Middleware Product would be invoked solely for use
in interoperating with a server maintained by Microsoft (outside the
context of general Web browsing), or
- that designated Non-Microsoft Middleware Product fails to implement
a reasonable technical requirement (e.g., a requirement to
be able to host a particular ActiveX control) that is necessary for
valid technical reasons to supply the end user with functionality
consistent with a Windows Operating System Product, provided that
the technical reasons are described in a reasonably prompt manner
to any ISV that requests them.
- Ensure that a Windows Operating System Product does not (a) automatically
alter an OEM's configuration of icons, shortcuts or menu entries installed
or displayed by the OEM pursuant to Section III.C of this Final Judgment
without first seeking confirmation from the user and (b) seek
such confirmation from the end user for an automatic (as opposed to
user-initiated) alteration of the OEM's configuration until 14 days
after the initial boot up of a new Personal Computer. Any such automatic
alteration and confirmation shall be unbiased with respect to Microsoft
Middleware Products and Non-Microsoft Middleware. Microsoft shall
not alter the manner in which a Windows Operating System Product automatically
alters an OEM's configuration of icons, shortcuts or menu entries
other than in a new version of a Windows Operating System Product.
Microsoft's obligations under this Section III.H as to any new Windows
Operating System Product shall be determined based on the Microsoft
Middleware Products which exist seven months prior to the last beta
test version (i.e., the one immediately preceding the first
release candidate) of that Windows Operating System Product.
I. Microsoft shall offer to license to ISVs, IHVs, IAPs, ICPs, and
OEMs any intellectual property rights owned or licensable by Microsoft
that are required to exercise any of the options or alternatives expressly
provided to them under this Final Judgment, provided that
- all terms, including royalties or other payment of monetary consideration,
are reasonable and non-discriminatory;
- the scope of any such license (and the intellectual property rights
licensed thereunder) need be no broader than is necessary to ensure
that an ISV, IHV, IAP, ICP or OEM is able to exercise the options
or alternatives expressly provided under this Final Judgment (e.g.,
an ISV's, IHV's, IAP's, ICP's and OEM's option to promote Non-Microsoft
Middleware shall not confer any rights to any Microsoft intellectual
property rights infringed by that Non-Microsoft Middleware);
- an ISV's, IHV's, IAP's, ICP's, or OEM's rights may be conditioned
on its not assigning, transferring or sublicensing its rights under
any license granted under this provision; and
- the terms of any license granted under this section are in all
respects consistent with the express terms of this Final Judgment.
Beyond the express terms of any license granted by Microsoft pursuant
to this section, this Final Judgment does not, directly or by implication,
estoppel or otherwise, confer any rights, licenses, covenants or immunities
with regard to any Microsoft intellectual property to anyone.
J. No provision of this Final Judgment shall:
- Require Microsoft to document, disclose or license to third parties:
(a) portions of APIs or Documentation or portions or layers of
Communications Protocols the disclosure of which would compromise
the security of a particular installation or group of installations
of anti-piracy, anti-virus, software licensing, digital rights management,
encryption or authentication systems, including without limitation,
keys, authorization tokens or enforcement criteria; or (b) any
API, interface or other information related to any Microsoft product
if lawfully directed not to do so by a governmental agency of competent
jurisdiction.
- Prevent Microsoft from conditioning any license of any API, Documentation
or Communications Protocol related to anti-piracy systems, anti-virus
technologies, license enforcement mechanisms, authentication/authorization
security, or third party intellectual property protection mechanisms
of any Microsoft product to any person or entity on the requirement
that the licensee: (a) has no history of software counterfeiting
or piracy or willful violation of intellectual property rights, (b) has
a reasonable business need for the API, Documentation or Communications
Protocol for a planned or shipping product, (c) meets reasonable,
objective standards established by Microsoft for certifying the authenticity
and viability of its business, (d) agrees to submit, at its own
expense, any computer program using such APIs, Documentation or Communication
Protocols to third-party verification, approved by Microsoft, to test
for and ensure verification and compliance with Microsoft specifications
for use of the API or interface, which specifications shall be related
to proper operation and integrity of the systems and mechanisms identified
in this paragraph.
IV. Compliance and
Enforcement Procedures
A. Enforcement Authority
- The Plaintiffs shall have exclusive responsibility for enforcing
this Final Judgment. Without in any way limiting the sovereign enforcement
authority of each of the plaintiff States, the plaintiff States shall
form a committee to coordinate their enforcement of this Final Judgment.
A plaintiff State shall take no action to enforce this Final Judgment
without first consulting with the United States and with the plaintiff
States' enforcement committee.
- To determine and enforce compliance with this Final Judgment, duly
authorized representatives of the United States and the plaintiff
States, on reasonable notice to Microsoft and subject to any lawful
privilege, shall be permitted the following:
- Access during normal office hours to inspect any and all source
code, books, ledgers, accounts, correspondence, memoranda and other
documents and records in the possession, custody, or control of
Microsoft, which may have counsel present, regarding any matters
contained in this Final Judgment.
- Subject to the reasonable convenience of Microsoft and without
restraint or interference from it, to interview, informally or on
the record, officers, employees, or agents of Microsoft, who may
have counsel present, regarding any matters contained in this Final
Judgment.
- Upon written request of the United States or a duly designated
representative of a plaintiff State, on reasonable notice given
to Microsoft, Microsoft shall submit such written reports under
oath as requested regarding any matters contained in this Final
Judgment.
Individual plaintiff States will consult with the plaintiff States'
enforcement committee to minimize the duplication and burden of the
exercise of the foregoing powers, where practicable.
- The Plaintiffs shall not disclose any information or documents
obtained from Microsoft under this Final Judgment except for the purpose
of securing compliance with this Final Judgment, in a legal proceeding
to which one or more of the Plaintiffs is a party, or as otherwise
required by law; provided that the relevant Plaintiff(s) must provide
ten days' advance notice to Microsoft before disclosing in any legal
proceeding (other than a grand jury proceeding) to which Microsoft
is not a party any information or documents provided by Microsoft
pursuant to this Final Judgment which Microsoft has identified in
writing as material as to which a claim of protection may be asserted
under Rule 26(c)(7) of the Federal Rules of Civil Procedure.
- The Plaintiffs shall have the authority to seek such orders as
are necessary from the Court to enforce this Final Judgment, provided,
however, that the Plaintiffs shall afford Microsoft a reasonable opportunity
to cure alleged violations of Sections III.C, III.D, III.E and III.H,
provided further that any action by Microsoft to
cure any such violation shall not be a defense to enforcement with
respect to any knowing, willful or systematic violations.
B. Appointment of a Technical Committee
- Within 30 days of entry of this Final Judgment, the parties shall
create and recommend to the Court for its appointment a three-person
Technical Committee ("TC") to assist in enforcement of and compliance
with this Final Judgment.
- The TC members shall be experts in software design and programming.
No TC member shall have a conflict of interest that could prevent
him or her from performing his or her duties under this Final Judgment
in a fair and unbiased manner. Without limitation to the foregoing,
no TC member (absent the agreement of both parties):
- shall have been employed in any capacity by Microsoft or any
competitor to Microsoft within the past year, nor shall she or he
be so employed during his or her term on the TC;
- shall have been retained as a consulting or testifying expert
by any person in this action or in any other action adverse to or
on behalf of Microsoft; or
- shall perform any other work for Microsoft or any competitor
of Microsoft for two years after the expiration of the term of his
or her service on the TC.
- Within 7 days of entry of this Final Judgment, the Plaintiffs as
a group and Microsoft shall each select one member of the TC, and
those two members shall then select the third member. The selection
and approval process shall proceed as follows.
- As soon as practicable after submission of this Final Judgment
to the Court, the Plaintiffs as a group and Microsoft shall each
identify to the other the individual it proposes to select as its
designee to the TC. The Plaintiffs and Microsoft shall not object
to each other's selection on any ground other than failure to satisfy
the requirements of Section IV.B.2 above. Any such objection shall
be made within ten business days of the receipt of notification
of selection.
- The Plaintiffs shall apply to the Court for appointment of the
persons selected by the Plaintiffs and Microsoft pursuant to Section
IV.B.3.a above. Any objections to the eligibility of a selected
person that the parties have failed to resolve between themselves
shall be decided by the Court based solely on the requirements stated
in Section IV.B.2 above.
- As soon as practical after their appointment by the Court, the
two members of the TC selected by the Plaintiffs and Microsoft (the
"Standing Committee Members") shall identify to the Plaintiffs and
Microsoft the person that they in turn propose to select as the
third member of the TC. The Plaintiffs and Microsoft shall not object
to this selection on any grounds other than failure to satisfy the
requirements of Section IV.B.2 above. Any such objection shall be
made within ten business days of the receipt of notification of
the selection and shall be served on the other party as well as
on the Standing Committee Members.
- The Plaintiffs shall apply to the Court for appointment of the
person selected by the Standing Committee Members. If the Standing
Committee Members cannot agree on a third member of the TC, the
third member shall be appointed by the Court. Any objection by Microsoft
or the Plaintiffs to the eligibility of the person selected by the
Standing Committee Members which the parties have failed to resolve
among themselves shall also be decided by the Court based on the
requirements stated in Section IV.B.2 above.
- Each TC member shall serve for an initial term of 30 months. At
the end of a TC member's initial 30-month term, the party that originally
selected him or her may, in its sole discretion, either request re-appointment
by the Court to a second 30-month term or replace the TC member in
the same manner as provided for in Section IV.B.3.a above. In the
case of the third member of the TC, that member shall be re-appointed
or replaced in the manner provided in Section IV.B.3.c above. The
Court having by Minute Order dated May 5, 2005 granted Plaintiffs'
motion to reappoint each TC member to a second term, and each TC member
having since expressed a willingness to serve beyond the 30 month
period provided for above, the second term of the TC members will
expire on May 12, 2011.
- If the United States determines that a member of the TC has failed
to act diligently and consistently with the purposes of this Final
Judgment, or if a member of the TC resigns, or for any other reason
ceases to serve in his or her capacity as a member of the TC, the
person or persons that originally selected the TC member shall select
a replacement member in the same manner as provided for in Section
IV.B.3.
- Promptly after appointment of the TC by the Court, the United States
shall enter into a Technical Committee services agreement ("TC Services
Agreement") with each TC member that grants the rights, powers and
authorities necessary to permit the TC to perform its duties under
this Final Judgment. Microsoft shall indemnify each TC member and
hold him or her harmless against any losses, claims, damages, liabilities
or expenses arising out of, or in connection with, the performance
of the TC's duties, except to the extent that such liabilities, losses,
damages, claims, or expenses result from misfeasance, gross negligence,
willful or wanton acts, or bad faith by the TC member. The TC Services
Agreements shall include the following.
- The TC members shall serve, without bond or other security, at
the cost and expense of Microsoft on such terms and conditions as
the Plaintiffs approve, including the payment of reasonable fees
and expenses.
- The TC Services Agreement shall provide that each member of the
TC shall comply with the limitations provided for in Section IV.B.2
above.
- Microsoft shall provide the TC with a permanent office, telephone,
and other office support facilities at Microsoft's corporate campus
in Redmond, Washington. Microsoft shall also, upon reasonable advance
notice from the TC, provide the TC with reasonable access to available
office space, telephone, and other office support facilities at any
other Microsoft facility identified by the TC.
- The TC shall have the following powers and duties:
- The TC shall have the power and authority to monitor Microsoft's
compliance with its obligations under this final judgment.
- The TC may, on reasonable notice to Microsoft:
- interview, either informally or on the record, any Microsoft
personnel, who may have counsel present; any such interview to
be subject to the reasonable convenience of such personnel and
without restraint or interference by Microsoft;
- inspect and copy any document in the possession, custody or
control of Microsoft personnel;
- obtain reasonable access to any systems or equipment to which
Microsoft personnel have access;
- obtain access to, and inspect, any physical facility, building
or other premises to which Microsoft personnel have access; and
- require Microsoft personnel to provide compilations of documents,
data and other information, and to submit reports to the TC containing
such material, in such form as the TC may reasonably direct.
- The TC shall have access to Microsoft's source code, subject
to the terms of Microsoft's standard source code Confidentiality
Agreement, as approved by the Plaintiffs and to be agreed to by
the TC members pursuant to Section IV.B.9 below, and by any
staff or consultants who may have access to the source code. The
TC may study, interrogate and interact with the source code in order
to perform its functions and duties, including the handling of complaints
and other inquiries from non-parties.
- The TC shall receive complaints from the Compliance Officer,
third parties or the Plaintiffs and handle them in the manner specified
in Section IV.D below.
- The TC shall report in writing to the Plaintiffs every six months
until expiration of this Final Judgment the actions it has undertaken
in performing its duties pursuant to this Final Judgment, including
the identification of each business practice reviewed and any recommendations
made by the TC.
- Regardless of when reports are due, when the TC has reason to
believe that there may have been a failure by Microsoft to comply
with any term of this Final Judgment, the TC shall immediately notify
the Plaintiffs in writing setting forth the relevant details.
- TC members may communicate with non-parties about how their complaints
or inquiries might be resolved with Microsoft, so long as the confidentiality
of information obtained from Microsoft is maintained.
- The TC may hire at the cost and expense of Microsoft, with prior
notice to Microsoft and subject to approval by the Plaintiffs, such
staff or consultants (all of whom must meet the qualifications of
Section IV.B.2) as are reasonably necessary for the TC to carry
out its duties and responsibilities under this Final Judgment. The
compensation of any person retained by the TC shall be based on
reasonable and customary terms commensurate with the individual's
experience and responsibilities.
- The TC shall account for all reasonable expenses incurred, including
agreed upon fees for the TC members' services, subject to the approval
of the Plaintiffs. Microsoft may, on application to the Court, object
to the reasonableness of any such fees or other expenses. On any
such application: (a) the burden shall be on Microsoft to demonstrate
unreasonableness; and (b) the TC member(s) shall be entitled to
recover all costs incurred on such application (including reasonable
attorneys' fees and costs), regardless of the Court's disposition
of such application, unless the Court shall expressly find that
the TC's opposition to the application was without substantial justification.
- Each TC member, and any consultants or staff hired by the TC, shall
sign a confidentiality agreement prohibiting disclosure of any information
obtained in the course of performing his or her duties as a member
of the TC or as a person assisting the TC to anyone other than Microsoft,
the Plaintiffs, or the Court. All information gathered by the TC in
connection with this Final Judgment and any report and recommendations
prepared by the TC shall be treated as Highly Confidential under the
Protective Order in this case, and shall not be disclosed to any person
other than Microsoft and the Plaintiffs except as allowed by the Protective
Order entered in the Action or by further order of this Court.
- No member of the TC shall make any public statements relating to
the TC's activities.
C. Appointment of a Microsoft Internal Compliance Officer
- Microsoft shall designate, within 30 days of entry of this Final
Judgment, an internal Compliance Officer who shall be an employee
of Microsoft with responsibility for administering Microsoft's antitrust
compliance program and helping to ensure compliance with this Final
Judgment.
- The Compliance Officer shall supervise the review of Microsoft's
activities to ensure that they comply with this Final Judgment. He
or she may be assisted by other employees of Microsoft.
- The Compliance Officer shall be responsible for performing the
following activities:
- within 30 days after entry of this Final Judgment, distributing
a copy of the Final Judgment to all officers and directors of Microsoft;
- promptly distributing a copy of this Final Judgment to any person
who succeeds to a position described in Section IV.C.3.a above;
- ensuring that those persons designated in Section IV.C.3.a above
are annually briefed on the meaning and requirements of this Final
Judgment and the U.S. antitrust laws and advising them that Microsoft's
legal advisors are available to confer with them regarding any question
concerning compliance with this Final Judgment or under the U.S.
antitrust laws;
- obtaining from each person designated in Section IV.C.3.a above
an annual written certification that he or she: (i) has read
and agrees to abide by the terms of this Final Judgment; and (ii) has
been advised and understands that his or her failure to comply with
this Final Judgment may result in a finding of contempt of court;
- maintaining a record of all persons to whom a copy of this Final
Judgment has been distributed and from whom the certification described
in Section IV.C.3.d above has been obtained;
- establishing and maintaining the website provided for in Section
IV.D.3.b below.
- receiving complaints from third parties, the TC and the Plaintiffs
concerning Microsoft's compliance with this Final Judgment and following
the appropriate procedures set forth in Section IV.D below; and
- maintaining a record of all complaints received and action taken
by Microsoft with respect to each such complaint.
D. Voluntary Dispute Resolution
- Third parties may submit complaints concerning Microsoft's compliance
with this Final Judgment to the Plaintiffs, the TC or the Compliance
Officer.
- In order to enhance the ability of the Plaintiffs to enforce compliance
with this Final Judgment, and to advance the parties' joint interest
and the public interest in prompt resolution of issues and disputes,
the parties have agreed that the TC and the Compliance Officer shall
have the following additional responsibilities.
- Submissions to the Compliance Officer.
- Third parties, the TC, or the Plaintiffs in their discretion
may submit to the Compliance Officer any complaints concerning Microsoft's
compliance with this Final Judgment. Without in any way limiting
its authority to take any other action to enforce this Final Judgment,
the Plaintiffs may submit complaints related to Sections III.C,
III.D, III.E and III.H to the Compliance Officer whenever doing
so would be consistent with the public interest.
- To facilitate the communication of complaints and inquiries by
third parties, the Compliance Officer shall place on Microsoft's
Internet website, in a manner acceptable to the Plaintiffs, the
procedures for submitting complaints. To encourage whenever possible
the informal resolution of complaints and inquiries, the website
shall provide a mechanism for communicating complaints and inquiries
to the Compliance Officer.
- Microsoft shall have 30 days after receiving a complaint to attempt
to resolve it or reject it, and will then promptly advise the TC
of the nature of the complaint and its disposition.
- Submissions to the TC.
- The Compliance Officer, third parties or the Plaintiffs in their
discretion may submit to the TC any complaints concerning Microsoft's
compliance with this Final Judgment.
- The TC shall investigate complaints received and will consult
with the Plaintiffs regarding its investigation. At least once during
its investigation, and more often when it may help resolve complaints
informally, the TC shall meet with the Compliance Officer to allow
Microsoft to respond to the substance of the complaint and to determine
whether the complaint can be resolved without further proceedings.
- If the TC concludes that a complaint is meritorious, it shall
advise Microsoft and the Plaintiffs of its conclusion and its proposal
for cure.
- No work product, findings or recommendations by the TC may be
admitted in any enforcement proceeding before the Court for any
purpose, and no member of the TC shall testify by deposition, in
court or before any other tribunal regarding any matter related
to this Final Judgment.
- The TC may preserve the anonymity of any third party complainant
where it deems it appropriate to do so upon the request of the Plaintiffs
or the third party, or in its discretion.
E. Microsoft shall maintain Robert Muglia, Senior Vice President for
Microsoft's Server and Tools Business, as the executive with direct
responsibility for managing the project to rewrite the technical documentation
for the Microsoft Communications Protocol Program, until otherwise ordered
by the Court on a showing of good cause, and shall make Mr. Muglia available
to update the Court on the project at Status Conferences or as otherwise
ordered.
V. Termination
A. Unless this Court grants an extension, Sections III.A, III.B, III.C,
III.D, III.F.2, III.G, and III.H of this Final Judgment will expire
on November 12, 2007. Unless this Court grants an extension, Sections
I, II, III.E, III.F.1, III.F.3, III.I, III.J, IV, V, VI, VII, and VIII
of the Final Judgment (the "Surviving Provisions") will expire on May
12, 2011. Until expiration of the Surviving Provisions, the Plaintiffs
shall have the unilateral right to apply to the Court for an extension
of the Surviving Provisions of up to eighteen additional months (that
is, through November 12, 2012); Microsoft has agreed that it will not
oppose any such extension. The existence of a successor version of Windows,
so long as it has not been distributed commercially by Microsoft, will
not constitute grounds for an extension of the Final Judgment.
B. In any enforcement proceeding in which the Court has found that
Microsoft has engaged in a pattern of willful and systematic violations,
the Plaintiffs may apply to the Court for a one-time extension of this
Final Judgment of up to two years, together with such other relief as
the Court may deem appropriate.
VI. Definitions
A. "API" means application programming interface, including any interface
that Microsoft is obligated to disclose pursuant to III.D.
B. "Communications Protocol" means the set of rules for information
exchange to accomplish predefined tasks between a Windows Operating
System Product and a server operating system product connected via a
network, including, but not limited to, a local area network, a wide
area network or the Internet. These rules govern the format, semantics,
timing, sequencing, and error control of messages exchanged over a network.
C. "Consideration" means any monetary payment or the provision of preferential
licensing terms; technical, marketing, and sales support; enabling programs;
product information; information about future plans; developer support;
hardware or software certification or approval; or permission to display
trademarks, icons or logos.
D. "Covered OEMs" means the 20 OEMs with the highest worldwide volume
of licenses of Windows Operating System Products reported to Microsoft
in Microsoft's fiscal year preceding the effective date of the Final
Judgment. The OEMs that fall within this definition of Covered OEMs
shall be recomputed by Microsoft as soon as practicable after the close
of each of Microsoft's fiscal years.
E. "Documentation" means all information regarding the identification
and means of using APIs that a person of ordinary skill in the art requires
to make effective use of those APIs. Such information shall be of the
sort and to the level of specificity, precision and detail that Microsoft
customarily provides for APIs it documents in the Microsoft Developer
Network ("MSDN").
F. "IAP" means an Internet access provider that provides consumers
with a connection to the Internet, with or without its own proprietary
content.
G. "ICP" means an Internet content provider that provides content to
users of the Internet by maintaining Web sites.
H. "IHV" means an independent hardware vendor that develops hardware
to be included in or used with a Personal Computer running a Windows
Operating System Product.
I. "ISV" means an entity other than Microsoft that is engaged in the
development or marketing of software products.
J. "Microsoft Middleware" means software code that
- Microsoft distributes separately from a Windows Operating System
Product to update that Windows Operating System Product;
- is Trademarked or is marketed by Microsoft as a major version of
any Microsoft Middleware Product defined in section VI.K.1; and
- provides the same or substantially similar functionality as
a Microsoft Middleware Product.
Microsoft Middleware shall include at least the software code that
controls most or all of the user interface elements of that Microsoft
Middleware.
Software code described as part of, and distributed separately to update,
a Microsoft Middleware Product shall not be deemed Microsoft Middleware
unless identified as a new major version of that Microsoft Middleware
Product. A major version shall be identified by a whole number or by
a number with just a single digit to the right of the decimal point.
K. "Microsoft Middleware Product" means
- the functionality provided by Internet Explorer, Microsoft's Java
Virtual Machine, Windows Media Player, Windows Messenger, Outlook
Express and their successors in a Windows Operating System Product,
and
- for any functionality that is first licensed, distributed or sold
by Microsoft after the entry of this Final Judgment and that is part
of any Windows Operating System Product
- Internet browsers, email client software, networked audio/video
client software, instant messaging software or
- functionality provided by Microsoft software that --
- is, or in the year preceding the commercial release of any
new Windows Operating System Product was, distributed separately
by Microsoft (or by an entity acquired by Microsoft) from a Windows
Operating System Product;
- is similar to the functionality provided by a Non-Microsoft
Middleware Product; and
- is Trademarked.
Functionality that Microsoft describes or markets as being part of
a Microsoft Middleware Product (such as a service pack, upgrade, or
bug fix for Internet Explorer), or that is a version of a Microsoft
Middleware Product (such as Internet Explorer 5.5), shall be considered
to be part of that Microsoft Middleware Product.
L. "Microsoft Platform Software" means (i) a Windows Operating
System Product and/or (ii) a Microsoft Middleware Product.
M. "Non-Microsoft Middleware" means a non-Microsoft software product
running on a Windows Operating System Product that exposes a range of
functionality to ISVs through published APIs, and that could, if ported
to or made interoperable with, a non-Microsoft Operating System, thereby
make it easier for applications that rely in whole or in part on the
functionality supplied by that software product to be ported to or run
on that non-Microsoft Operating System.
N. "Non-Microsoft Middleware Product" means a non-Microsoft software
product running on a Windows Operating System Product (i) that
exposes a range of functionality to ISVs through published APIs, and
that could, if ported to or made interoperable with, a non-Microsoft
Operating System, thereby make it easier for applications that rely
in whole or in part on the functionality supplied by that software product
to be ported to or run on that non-Microsoft Operating System, and (ii) of
which at least one million copies were distributed in the United States
within the previous year.
O. "OEM" means an original equipment manufacturer of Personal Computers
that is a licensee of a Windows Operating System Product.
P. "Operating System" means the software code that, inter alia,
(i) controls the allocation and usage of hardware resources (such
as the microprocessor and various peripheral devices) of a Personal
Computer, (ii) provides a platform for developing applications
by exposing functionality to ISVs through APIs, and (iii) supplies
a user interface that enables users to access functionality of the operating
system and in which they can run applications.
Q. "Personal Computer" means any computer configured so that its primary
purpose is for use by one person at a time, that uses a video display
and keyboard (whether or not that video display and keyboard is included)
and that contains an Intel x86 compatible (or successor) microprocessor.
Servers, television set top boxes, handheld computers, game consoles,
telephones, pagers, and personal digital assistants are examples of
products that are not Personal Computers within the meaning of this
definition.
R. "Timely Manner" means at the time Microsoft first releases a beta
test version of a Windows Operating System Product that is made available
via an MSDN subscription offering or of which 150,000 or more beta copies
are distributed.
S. "Top-Level Window" means a window displayed by a Windows Operating
System Product that (a) has its own window controls, such as move,
resize, close, minimize, and maximize, (b) can contain sub-windows,
and (c) contains user interface elements under the control of at
least one independent process.
T. "Trademarked" means distributed in commerce and identified as distributed
by a name other than Microsoft® or Windows® that Microsoft
has claimed as a trademark or service mark by (i) marking the name
with trademark notices, such as ® or , in connection with a product
distributed in the United States; (ii) filing an application for
trademark protection for the name in the United States Patent and Trademark
Office; or (iii) asserting the name as a trademark in the United
States in a demand letter or lawsuit. Any product distributed under
descriptive or generic terms or a name comprised of the Microsoft®
or Windows® trademarks together with descriptive or generic terms
shall not be Trademarked as that term is used in this Final Judgment.
Microsoft hereby disclaims any trademark rights in such descriptive
or generic terms apart from the Microsoft® or Windows® trademarks,
and hereby abandons any such rights that it may acquire in the future.
U. "Windows Operating System Product" means the software code (as opposed
to source code) distributed commercially by Microsoft for use with Personal
Computers as Windows 2000 Professional, Windows XP
Home, Windows XP Professional, and successors to the foregoing, including
the Personal Computer versions of the products currently code named
"Longhorn" and "Blackcomb" and their successors, including upgrades,
bug fixes, service packs, etc. Solely for the purpose of clarification,
this Final Judgment shall not apply to any Operating System that is
first distributed commercially by Microsoft after the expiration of
the Final Judgment. The software code that comprises a Windows Operating
System Product shall be determined by Microsoft in its sole discretion.
VII. Further Elements
Jurisdiction is retained by this Court over this action such that the
Court may act sua sponte to issue further orders or directions,
including but not limited to orders or directions relating to the construction
or carrying out of this Final Judgment, the enforcement of compliance
therewith, the modification thereof, and the punishment of any violation
thereof.
Jurisdiction is retained by this Court over this action and the parties
thereto for the purpose of enabling either of the parties thereto to
apply to this Court at any time for further orders and directions as
may be necessary or appropriate to carry out or construe this Final
Judgment, to modify or terminate any of its provisions, to enforce compliance,
and to punish violations of its provisions.
VIII. Third Party Rights
Nothing in this Final Judgment is intended to confer upon any other
persons any rights or remedies of any nature whatsoever hereunder or
by reason of this Final Judgment.
SO ORDERED
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_______________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge |
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