William Page is a Marshall M. Criser Eminent Scholar in Electronic Communications and Administrative Law at the University of Florida, Levin College of Law.
The DOJ’s Section 2 Report speaks in general terms about the costs and benefits of various remedies for monopolization. It prefers “prohibitory” remedies, but holds open the possibility of “additional relief,” including “affirmative-obligation remedies. The Report specifically mentions the protocol-licensing requirement of the Microsoft final judgments (§ III.E, entered in November 2002) as an example of a challenging and controversial affirmative-obligation remedy. In this post, I’d like to comment on the protocol-licensing program and its implementation. In doing so, I draw on my previous work with Jeff Childers, particularly Software Development as an Antitrust Remedy: Lessons from the Enforcement of the Microsoft Communications Protocol Licensing Requirement, and Measuring Compliance with Compulsory Licensing Remedies in the American Microsoft Case.
Section III.E requires Microsoft to “make available” to software developers the communications protocols that Windows client operating systems use to interoperate “natively” with Microsoft’s server operating systems in corporate networks or on the Internet. The short-term goal of the provision is to allow developers to write applications for non-Microsoft server operating systems that can interoperate as easily with Windows client computers as can software written for Microsoft’s server operating systems. The long-term goal is to preserve, in the network context, the “middleware threat” to the Windows monopoly. The idea is that middleware applications running on non-Microsoft servers might become a rival platform that could erode the “applications barrier to entry” as Netscape and Java had threatened to do.
Judge Kollar-Kotelly placed special emphasis on this provision as the “most forward-looking” one in the final judgments. It was, she believed, necessary to assure that the other provisions do not become “prematurely obsolete” as computing moves to corporate networks and the Internet. In practice, however, the provision has done little to advance the goals of the decree. Equally important, as I explain below, its implementation (by two sets of plaintiffs, with the aid of a Technical Committee and technical consultant) has been Kafkaesque. Continue Reading…