[Am-info] Text of agreement
Dave Zapple
zappled@odrge.odr.georgetown.edu
Fri, 2 Nov 2001 11:55:29 -0500
Hi,
Here is the text of the agreement al least what Microsoft had on
it's web site. I truly hope this doesn't go through. This is getting
very depressing.
Dave Z.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
MICROSOFT CORPORATION,
Defendant.
Civil
Action No. 98-1232 (TPJ)
Next
Court Deadline: November
2,
2001 Status Conference
STIPULATION
Plaintiff United States of America ("United
States") and Defendant Microsoft Corporation
("Microsoft"), by and through their
respective attorneys, having agreed to the entry of this
Stipulation, it is hereby stipulated and agreed th=
at:
1. A Final Judgment in the form attached
hereto may be filed and entered
by the Court, upon the motion of any party
or upon the Court's own motion,
at any time after compliance with the
requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. =A7
16, and without further notice to
any party or other proceedings, provided
that the United States has not
withdrawn its consent, which it may do at
any time before the entry of the
proposed Final Judgment by serving notice
thereof on Microsoft and by
filing that notice with the Court.
2. Unless otherwise provided in the proposed
=46inal Judgment, Microsoft
shall begin complying with the proposed
=46inal Judgment as if it was in full
force and effect starting 45 days after the
date the proposed Final
Judgment is submitted to the Court. Subject
to the foregoing, Microsoft
agrees to be bound by the provisions of the
proposed Final Judgment
pending its entry by the Court. If the
United States withdraws its consent, or
if (a) the proposed Final Judgment is not
entered pursuant to the terms of
the Stipulation, (b) the time has expired
for all appeals of any Court ruling
declining to enter the proposed Final
Judgment, and (c) the Court has not
otherwise ordered continued compliance with
the terms and provisions of
the proposed Final Judgment, then the
parties shall be released from all
further obligations under this Stipulation,
and the making of this Stipulation
shall be without prejudice to any party in
this or any other proceeding.
3. Pursuant to 15 U.S.C. =A7 16(g), within ten
(10) days of the submission of
the proposed Final Judgment, Microsoft will
file with the Court a description
of any and all written or oral
communications by or on behalf of Microsoft,
or other person, with any officer or
employee of the United States
concerning or relevant to the proposed Final
Judgment, except that any
such communications made by counsel of
record alone with the Attorney
General or the employees of the United
States Department of Justice alone
shall be excluded from this requirement.
4. Pursuant to 15 U.S.C. =A7 16(b), on or
before November 16, 2001, the
United States will file with the Court a
Competitive Impact Statement
explaining the terms of the proposed Final
Judgment. The United States will
publish the proposed Final Judgment and
Competitive Impact Statement in
the Federal Register.
5. The United States will publish a notice
informing the public of the
proposed Final Judgment and public comment
period in the Washington
Post and the San Jose Mercury News, for
seven days over a period of two
weeks commencing no later than November 15, 2001.
6. Members of the public may submit written
comments about the proposed
Final Judgment to a designated official of
the Antitrust Division of the
United States Department of Justice for a
period of 60 days after
publication of the proposed Final Judgment
and Competitive Impact
Statement in the Federal Register.
7. Within 30 days after the close of the
60-day public comment period, the
United States will file with the Court and
publish in the Federal Register any
comments it receives and its response to
those comments.
8. Once the aforementioned procedures have
been compiled with, the
United States will file with the Court a
certification of compliance with the
requirements of 15 U.S.C. =A7 16, and a Motion
for Entry of the Proposed
Final Judgment, unless it withdraws its
consent to entry of the proposed
Final Judgment pursuant to paragraph 2,
above. At any time thereafter,
and at the conclusion of any further
proceedings ordered by the court
pursuant to 15 U.S.C. =A7 16(f), the Court may
then enter the proposed Final
Judgment, provided that the Court determines
that entry of the proposed
Final Judgment will serve the public interest.
DATED this 2nd day of November, 2001
FOR PLAINTIFF THE UNITED STATES OF AMERICA:
____________________________________
CHARLES A. JAMES (Bar No. 292201)
Assistant Attorney General
Antitrust Division
United States Department of Justice
901 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 514-2401
FOR DEFENDANT MICROSOFT CORPORATION:
____________________________________
JOHN L. WARDEN (Bar No. 222083)
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-4000
PROPOSED FINAL JUDGMENT
WHEREAS, plaintiff United States of America
("United States") 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:
1. 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;
2. 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
3. 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 United States
and all Covered OEMs, that
provides for uniform royalties for Windows
Operating System Products,
except that:
1. the schedule may specify different
royalties for different language
versions;
2. 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
3. the schedule may include market
development allowances,
programs, or other discounts in
connection with Windows Operating
System Products, provided that:
a. 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;
b. such discounts are based on
objective, verifiable criteria
that shall be applied and
enforced on a uniform basis for all
Covered OEMs; and
c. 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:
1.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.
2.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.
3.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 Microsoft Middleware 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.
4.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.
5.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.
6.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. 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 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 natively (i.e.,
without the addition of software code
to the client or server operating system
products) with Windows 2000 Server
or products marketed as its successors
installed on a server computer.
F. 1. Microsoft shall not retaliate against
any ISV or IHV because of that
ISV's or IHV's:
a. 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
b. exercising any of the options or
alternatives provided for under
this Final Judgment.
2. 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.
3. 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
=46inal Judgment.
G. Microsoft shall not enter into any agreement wi=
th:
1. 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
2. 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:
1. 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
=46inal 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 grou=
p.
2. Allow end users (via a 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)
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 Produ=
ct.
3. 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. 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 Produ=
ct.
Notwithstanding the foregoing Section
III.H.2, the Windows Operating
System Product may invoke a Microsoft
Middleware Product in any instance
in which:
1.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
2.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.
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
1. all terms, including royalties or
other payment of monetary
consideration, are reasonable and
non-discriminatory;
2. 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 Products
shall not confer any rights to any
Microsoft intellectual property
rights infringed by that Non-Microsoft
Middleware Product);
3. 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;
4. the terms of any license granted
under this section are in all
respects consistent with the express
terms of this Final Judgment;
and
5. an ISV, IHV, IAP, ICP, or OEM may
be required to grant to
Microsoft on reasonable and
nondiscriminatory terms a license to
any intellectual property rights it
may have relating to the exercise
of their options or alternatives
provided by this Final Judgment; the
scope of such license shall be no
broader than is necessary to insure
that Microsoft can provide such
options or alternatives.
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:
1. 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 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.
2. 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
1. The United States shall have
exclusive responsibility for enforcing
this Final Judgment.
2. To determine and enforce
compliance with this Final Judgment,
duly authorized representatives of
the United States, on reasonable
notice to Microsoft and subject to
any lawful privilege, shall be
permitted the following:
a. 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.
b. 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
=46inal Judgment.
c. Upon written request of the
United States, on reasonable
notice given to Microsoft,
Microsoft shall submit such written
reports under oath as
requested regarding any matters
contained in this Final Judgment.
3. The United States 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 the United States is a
party, or as otherwise required by
law; provided that the United
States 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.
4. The United States shall have the
authority to seek such orders as
are necessary from the Court to
enforce this Final Judgment,
provided, however, that the United
States 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
1. Within 30 days of entry of this
=46inal 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.
2. 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):
a. 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;
b. 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
c. 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.
3. Within 7 days of entry of this
=46inal Judgment, the United States
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.
a. As soon as practicable
after submission of this Final
Judgment to the Court, the
United States and Microsoft shall
each identify to the other the
individual it proposes to select
as its designee to the TC. The
United States 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.
b. The United States shall
apply to the Court for appointment
of the persons selected by the
United States 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.
c. As soon as practical after
their appointment by the Court,
the two members of the TC
selected by the United States and
Microsoft (the "Standing
Committee Members") shall identify
to the United States and
Microsoft the person that they in
turn propose to select as the
third member of the TC. The
United States 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.
d. The United States 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 United States 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.
4. 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.
5. 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.
6. 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.
a. The TC members shall serve,
without bond or other
security, at the cost and
expense of Microsoft on such terms
and conditions as the United
States approves, including the
payment of reasonable fees and expen=
ses.
b. 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.
7. 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.
8. The TC shall have the following
powers and duties:
a. The TC shall have the power
and authority to monitor
Microsoft's compliance with
its obligations under this final
judgment.
b. The TC may, on reasonable
notice to Microsoft:
(i) 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;
(ii) inspect and copy
any document in the possession,
custody or control of
Microsoft personnel;
(iii) obtain reasonable
access to any systems or
equipment to which
Microsoft personnel have access;
(iv) obtain access to,
and inspect, any physical facility,
building or other
premises to which Microsoft
personnel have access; and
(v) 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.
c. 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 United States
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.
d. The TC shall receive
complaints from the Compliance
Officer, third parties or the
United States and handle them in
the manner specified in
Section IV.D below.
e. The TC shall report in
writing to the United States 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.
f. 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 United States in writing
setting forth the relevant details.
g. 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 maintaine=
d.
h. The TC may hire at the cost
and expense of Microsoft, with
prior notice to Microsoft and
subject to approval by the United
States, 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.
i. The TC shall account for
all reasonable expenses incurred,
including agreed upon fees for
the TC members' services,
subject to the approval of the
United States. 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.
9. 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 United States, 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 United
States except as allowed by the
Protective Order entered in the
Action or by further order of this Court.
10. No member of the TC shall make
any public statements relating
to the TC's activities.
C. Appointment of a Microsoft Internal
Compliance Officer
1. 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.
2. 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.
3. The Compliance Officer shall be
responsible for performing the
following activities:
a. within 30 days after entry
of this Final Judgment,
distributing a copy of the
=46inal Judgment to all officers and
directors of Microsoft;
b. promptly distributing a
copy of this Final Judgment to any
person who succeeds to a
position described in Section
IV.C.3.a above;
c. 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;
d. 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;
e. 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;
f. establishing and
maintaining the website provided for in
Section IV.D.3.b below.
g. receiving complaints from
third parties, the TC and the
United States concerning
Microsoft's compliance with this Final
Judgment and following the
appropriate procedures set forth
in Section IV.D below; and
h. maintaining a record of all
complaints received and action
taken by Microsoft with
respect to each such complaint.
D. Voluntary Dispute Resolution
1. Third parties may submit
complaints concerning Microsoft's
compliance with this Final Judgment
to the United States, the TC or
the Compliance Officer.
2. In order to enhance the ability of
the United States 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.
3. Submissions to the Compliance Officer.
a. Third parties, the TC, or
the United States in its 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 United States 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.
b. 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
United States, 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.
c. 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.
4. Submissions to the TC.
a. The Compliance Officer,
third parties or the United States
in its discretion may submit
to the TC any complaints
concerning Microsoft's
compliance with this Final Judgment.
b. The TC shall investigate
complaints received and will
consult with the United States
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.
c. If the TC concludes that a
complaint is meritorious, it shall
advise Microsoft and the
United States of its conclusion and
its proposal for cure.
d. 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
=46inal Judgment.
e. The TC may preserve the
anonymity of any third party
complainant where it deems it
appropriate to do so upon the
request of the United States
or the third party, or in its
discretion.
V. Termination
A. Unless this Court grants an extension,
this Final Judgment will expire on
the fifth anniversary of the date it is
entered by the Court.
B. In any enforcement proceeding in which
the Court has found that
Microsoft has engaged in a pattern of
knowing, willful and systematic
violations, the United States 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. "Application Programming Interfaces
(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.
B. "Communications Protocol" means the set
of rules for information
exchange to accomplish predefined tasks
between a Windows Operating
System Product on a client computer and
Windows 2000 Server or products
marketed as its successors running on a
server computer and connected via
a local area network or a wide area network.
These rules govern the format,
semantics, timing, sequencing, and error
control of messages exchanged
over a network. Communications Protocol
shall not include protocols used to
remotely administer Windows 2000 Server and
products marketed as its
successors.
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 designed to run on a
Windows Operating System Product.
J. "Microsoft Middleware" means software code that
1.Microsoft distributes separately from
a Windows Operating System Product to
update that Windows Operating System Produc=
t;
2.is Trademarked;
3.provides the same or substantially
similar functionality as a Microsoft
Middleware Product; and
4.includes 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
1. 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
2. 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
a. Internet browsers, email client
software, networked audio/video
client software, instant messaging software=
or
b. functionality provided by
Microsoft software that -
i. 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 Prod=
uct;
ii. is similar to the
functionality provided by a Non-Microsoft
Middleware Product; and
iii. 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=
=2E
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 distributed to
150,000 or more beta testers.
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=AE
or Windows=AE that Microsoft
has claimed as a trademark or service mark
by (i) marking the name with
trademark notices, such as =AE 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=AE or Windows=AE
trademarks together with descriptive or
generic terms shall not be
Trademarked as that term is used in this
=46inal Judgment. Microsoft hereby
disclaims any trademark rights in such
descriptive or generic terms apart
from the Microsoft=AE or Windows=AE 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. 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 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
=46inal 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.
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