UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 98-1232 (TPJ)
)
MICROSOFT CORPORATION,
)
)
Defendant.
)
____________________________________)
)
STATE OF NEW YORK, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
MICROSOFT CORPORATION,
)
)
Defendant.
)
____________________________________) Civil Action No. 98-1233 (TPJ)
)
MICROSOFT CORPORATION,
)
)
Counterclaim-Plaintiff,
)
)
)
ELIOT SPITZER, attorney general of the
)
State of New York, in his official
)
capacity, et al.,
)
)
Counterclaim-Defendants.
)
____________________________________)
FINAL JUDGMENT
Plaintiff, United States of America, having filed its complaint herein on May
18, 1998;
Plaintiff States, having filed their complaint herein on the same day;
Defendant Microsoft Corporation ("Microsoft") having appeared and filed
its answer to such complaints;
The Court having jurisdiction of the parties hereto and of the subject matter
hereof and having conducted a trial thereon and entered Findings of Fact
on November 5, 1999, and Conclusions of Law on April 3, 2000;
The Court having entered judgment in accordance with the Findings of
Fact and the Conclusions of Law on April 3, 2000, that Microsoft has
violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, as well as the
following state law provisions: Cal Bus. & Prof. Code §§ 16720, 16726,
16727, 17200; Conn. Gen. Stat. §§ 35-26, 35-27, 35-29; D.C. Code §§
28-4502, 28-4503; Fla. Stat. chs. 501.204(1), 542.18, 542.19; 740 Ill.
Comp. Stat. ch. 10/3; Iowa Code §§ 553.4, 553.5; Kan. Stat. §§ 50-101
et seq.; Ky. Rev. Stat. §§ 367.170, 367.175; La. Rev. Stat. §§ 51:122,
51:123, 51:1405; Md. Com. Law II Code Ann. § 11-204; Mass. Gen.
Laws ch. 93A, § 2; Mich. Comp. Laws §§ 445.772, 445.773; Minn.
Stat. § 325D.52; N.M. Stat. §§ 57-1-1, 57-1-2; N.Y. Gen. Bus. Law §
340; N.C. Gen. Stat. §§ 75-1.1, 75-2.1; Ohio Rev. Code §§ 1331.01,
1331.02; Utah Code § 76-10-914; W.Va. Code §§ 47-18-3, 47-18-4;
Wis. Stat. § 133.03(1)-(2); and
Upon the record at trial and all prior and subsequent proceedings herein, it
is this _____ day of June, 2000, hereby:
ORDERED, ADJUDGED, AND DECREED as follows:
1. Divestiture
a. Not later than four months after entry of this Final Judgment,
Microsoft shall submit to the Court and the Plaintiffs a proposed
plan of divestiture. The Plaintiffs shall submit any objections to the
proposed plan of divestiture to the Court within 60 days of receipt
of the plan, and Microsoft shall submit its response within 30 days
of receipt of the plaintiffs' objections.
b. Following approval of a final plan of divestiture by the Court
(the "Plan")(1) (and the expiration of the stay pending appeal set
forth in section 6.a), Microsoft shall implement such Plan.
c. The Plan shall provide for the completion, within 12 months of
the expiration of the stay pending appeal set forth in section 6.a., of
the following steps:
i. The separation of the Operating Systems Business from
the Applications Business, and the transfer of the assets of
one of them (the "Separated Business") to a separate entity
along with (a) all personnel, systems, and other tangible and
intangible assets (including Intellectual Property) used to
develop, produce, distribute, market, promote, sell, license
and support the products and services of the Separated
Business, and (b) such other assets as are necessary to
operate the Separated Business as an independent and
economically viable entity.
ii. Intellectual Property that is used both in a product
developed, distributed, or sold by the Applications Business
and in a product developed, distributed, or sold by the
Operating Systems Business as of April 27, 2000, shall be
assigned to the Applications Business, and the Operating
Systems Business shall be granted a perpetual, royalty-free
license to license and distribute such Intellectual Property in
its products, and, except with respect to such Intellectual
Property related to the Internet browser, to develop, license
and distribute modified or derivative versions of such
Intellectual Property, provided that the Operating Systems
Business does not grant rights to such versions to the
Applications Business. In the case of such Intellectual
Property that is related to the Internet browser, the license
shall not grant the Operating Systems Business any right to
develop, license, or distribute modified or derivative versions
of the Internet browser.
iii. The transfer of ownership of the Separated Business by
means of a distribution of stock of the Separated Business to
Non-Covered Shareholders of Microsoft, or by other
disposition that does not result in a Covered Shareholder
owning stock in both the Separated Business and the
Remaining Business.
d. Until Implementation of the Plan, Microsoft shall:
i. preserve, maintain, and operate the Operating Systems
Business and the Applications Business as ongoing,
economically viable businesses, with management, sales,
products, and operations of each business held as separate,
distinct and apart from one another as they were on April 27,
2000, except to provide the accounting, management, and
information services or other necessary support functions
provided by Microsoft prior to the entry of this Final
Judgment;
ii. use all reasonable efforts to maintain and increase the
sales and revenues of both the products produced or sold by
the Operating Systems Business and those produced or sold
by the Applications Business prior to the Implementation of
the Plan and to support research and development and
business development efforts of both the Operating Systems
Business and the Applications Business;
iii. take no action that undermines, frustrates, interferes
with, or makes more difficult the divestiture required by this
Final Judgment without the prior approval of the Court; and
iv. file a report with the Court 90 days after entry of this
Final Judgment on the steps Microsoft has taken to comply
with the requirements of this section 1.d.
2. Provisions Implementing Divestiture
a. After Implementation of the Plan, and throughout the term of
this Final Judgment, neither the Operating Systems Business nor the
Applications Business, nor any member of their respective Boards
of Directors, shall acquire any securities or assets of the other
Business; no Covered Shareholder holding securities of either the
Operating Systems Business or the Applications Business shall
acquire any securities or assets of or shall be an officer, director, or
employee of the other Business; and no person who is an officer,
director, or employee of the Operating Systems Business or the
Applications Business shall be an officer, director, or employee of
the other Business.
b. After Implementation of the Plan and throughout the term of this
Final Judgment, the Operating Systems Business and the
Applications Business shall be prohibited from:
i. merging or otherwise recombining, or entering into any
joint venture with one another;
ii. entering into any Agreement with one another under
which one of the Businesses develops, sells, licenses for sale
or distribution, or distributes products or services (other than
the technologies referred to in the following sentence)
developed, sold, licensed, or distributed by the other
Business;
iii. providing to the other any APIs, Technical Information,
Communications Interfaces, or technical information that is
not simultaneously published, disclosed, or made readily
available to ISVs, IHVs, and OEMs; and
iv. licensing, selling or otherwise providing to the other
Business any product or service on terms more favorable
than those available to any similarly situated third party.
Section 2.b.ii shall not prohibit the Operating Systems
Business and the Applications Business from licensing
technologies (other than Middleware Products) to each other
for use in each others' products or services provided that
such technology (i) is not and has not been separately sold,
licensed, or offered as a product, and (ii) is licensed on terms
that are otherwise consistent with this Final Judgment.
c. Three months after Implementation of the Plan and once every
three months thereafter throughout the term of this Final Judgment,
the Operating Systems Business and the Applications Business shall
file with the Plaintiffs a copy of each Agreement (and a
memorandum describing each oral Agreement) entered into
between them.
d. Throughout the term of this Final Judgment, Microsoft, the
Operating Systems Business and the Applications Business shall be
prohibited from taking adverse action against any person or entity in
whole or in part because such person or entity provided evidence in
this case.
e. The obligations and restrictions set forth in sections 3 and 4
herein shall, after the Implementation of the Plan, apply only to the
Operating Systems Business.
3. Provisions In Effect Until Full Implementation of the Plan of
Divestiture . The provisions in this section 3 shall remain in effect until the
earlier of three years after the Implementation of the Plan or the expiration
of the term of this Final Judgment.
a. OEM Relations.
i. Ban on Adverse Actions for Supporting Competing
Products. Microsoft shall not take or threaten any action
adversely affecting any OEM (including but not limited to
giving or withholding any consideration such as licensing
terms; discounts; technical, marketing, and sales support;
enabling programs; product information; technical
information; information about future plans; developer tools
or developer support; hardware certification; and permission
to display trademarks or logos) based directly or indirectly, in
whole or in part, on any actual or contemplated action by that
OEM:
(1) to use, distribute, promote, license, develop,
produce or sell any product or service that competes
with any Microsoft product or service; or
(2) to exercise any of the options or alternatives
provided under this Final Judgment.
ii. Uniform Terms for Windows Operating System Products
Licensed to Covered OEMs. Microsoft shall license
Windows Operating System Products to Covered OEMs
pursuant to uniform license agreements with uniform terms
and conditions and shall not employ market development
allowances or discounts in connection with Windows
Operating System Products. 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 plaintiffs 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, and
(2) the schedule may specify reasonable volume
discounts based upon actual volume of total shipments
of Windows Operating System Products.
Without limiting the foregoing, Microsoft shall afford
Covered OEMs equal access to licensing terms;
discounts; technical, marketing, and sales support;
product information; technical information; information
about future plans; developer tools or developer
support; hardware certification; and permission to
display trademarks or logos. The foregoing
requirement insofar as it relates to access to technical
information and information about future plans shall not
apply to any bona fide joint development effort by
Microsoft and a Covered OEM with respect to
confidential matters within the scope of that effort.
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 reason for the proposed termination and
not less than thirty days' opportunity to cure. Microsoft
shall not enforce any provision in any Agreement with
a Covered OEM that is inconsistent with this Final
Judgment.
iii. OEM Flexibility in Product Configuration. Microsoft
shall not restrict (by contract or otherwise, including but not
limited to granting or withholding consideration) an OEM
from modifying the boot sequence, startup folder, internet
connection wizard, desktop, preferences, favorites, start
page, first screen, or other aspect of a Windows Operating
System Product to -
(1) include a registration sequence to obtain
subscription or other information from the user;
(2) display icons of or otherwise feature other
products or services, regardless of the size or shape of
such icons or features, or to remove the icons, folders,
start menu entries, or favorites of Microsoft products
or services;
(3) display any user interfaces, provided that an icon
is also displayed that allows the user to access the
Windows user interface; or
(4) launch automatically any non-Microsoft
Middleware, Operating System or application, offer its
own Internet access provider or other start-up
sequence, or offer an option to make non-Microsoft
Middleware the Default Middleware and to remove
the means of End-User Access for Microsoft's
Middleware Product.
b. Disclosure of APIs, Communications Interfaces and Technical
Information. Microsoft shall disclose to ISVs, IHVs, and OEMs in a
Timely Manner, in whatever media Microsoft disseminates such
information to its own personnel, all APIs, Technical Information
and Communications Interfaces that Microsoft employs to enable -
i. Microsoft applications to interoperate with Microsoft
Platform Software installed on the same Personal Computer,
or
ii. a Microsoft Middleware Product to interoperate with
Windows Operating System software (or Middleware
distributed with such Operating System) installed on the same
Personal Computer, or
iii. any Microsoft software installed on one computer
(including but not limited to server Operating Systems and
operating systems for handheld devices) to interoperate with
a Windows Operating System (or Middleware distributed
with such Operating System) installed on a Personal
Computer.
To facilitate compliance, and monitoring of compliance, with
the foregoing, Microsoft shall create a secure facility where
qualified representatives of OEMs, ISVs, and IHVs shall be
permitted to study, interrogate and interact with relevant and
necessary portions of the source code and any related
documentation of Microsoft Platform Software for the sole
purpose of enabling their products to interoperate effectively
with Microsoft Platform Software (including exercising any of
the options in section 3.a.iii).
c. Knowing Interference with Performance. Microsoft shall not
take any action that it knows will interfere with or degrade the
performance of any non-Microsoft Middleware when interoperating
with any Windows Operating System Product without notifying the
supplier of such non-Microsoft Middleware in writing that Microsoft
intends to take such action, Microsoft's reasons for taking the
action, and any ways known to Microsoft for the supplier to avoid
or reduce interference with, or the degrading of, the performance of
the supplier's Middleware.
d. Developer Relations. Microsoft shall not take or threaten any
action affecting any ISV or IHV (including but not limited to giving
or withholding any consideration such as licensing terms; discounts;
technical, marketing, and sales support; enabling programs; product
information; technical information; information about future plans;
developer tools or developer support; hardware certification; and
permission to display trademarks or logos) based directly or
indirectly, in whole or in part, on any actual or contemplated action
by that ISV or IHV to -
i. use, distribute, promote or support any Microsoft
product or service, or
ii. develop, use, distribute, promote or support software
that runs on non-Microsoft Middleware or a non-Microsoft
Operating System or that competes with any Microsoft
product or service, or
iii. exercise any of the options or alternatives provided
under this Final Judgment.
e. Ban on Exclusive Dealing. Microsoft shall not enter into or
enforce any Agreement in which a third party agrees, or is offered
or granted consideration,
to -
i. restrict its development, production, distribution,
promotion or use of, or payment for, any non-Microsoft
Platform Software,
ii. distribute, promote or use any Microsoft Platform
Software exclusively,
iii. degrade the performance of any non-Microsoft Platform
Software, or
iv. in the case of an agreement with an Internet access
provider or Internet content provider, distribute, promote or
use Microsoft software in exchange for placement with
respect to any aspect of a Windows Operating System
Product.
f. Ban on Contractual Tying. Microsoft shall not condition the
granting of a Windows Operating System Product license, or the
terms or administration of such license, on an OEM or other
licensee agreeing to license, promote, or distribute any other
Microsoft software product that Microsoft distributes separately
from the Windows Operating System Product in the retail channel
or through Internet access providers, Internet content providers,
ISVs or OEMs, whether or not for a separate or positive price.
g. Restriction on Binding Middleware Products to Operating
System Products. Microsoft shall not, in any Operating System
Product distributed six or more months after the effective date of
this Final Judgment, Bind any Middleware Product to a Windows
Operating System unless:
i. Microsoft also offers an otherwise identical version of that
Operating System Product in which all means of End-User
Access to that Middleware Product can readily be removed
(a) by OEMs as part of standard OEM preinstallation kits
and (b) by end users using add-remove utilities readily
accessible in the initial boot process and from the Windows
desktop; and
ii. when an OEM removes End-User Access to a
Middleware Product from any Personal Computer on which
Windows is preinstalled, the royalty paid by that OEM for
that copy of Windows is reduced in an amount not less than
the product of the otherwise applicable royalty and the ratio
of the number of amount in bytes of binary code of (a) the
Middleware Product as distributed separately from a
Windows Operating System Product to (b) the applicable
version of Windows.
h. Agreements Limiting Competition. Microsoft shall not offer,
agree to provide, or provide any consideration to any actual or
potential Platform Software competitor in exchange for such
competitor's agreeing to refrain or refraining in whole or in part from
developing, licensing, promoting or distributing any Operating
System Product or Middleware Product competitive with any
Windows Operating System Product or Middleware Product.
i. Continued Licensing of Predecessor Version. Microsoft shall,
when it makes a major Windows Operating System Product release
(such as Windows 95, OSR 2.0, OSR 2.5, Windows 98, Windows
2000 Professional, Windows "Millennium," "Whistler,"
"Blackcomb," and successors to these), continue for three years
after said release to license on the same terms and conditions the
previous Windows Operating System Product to any OEM that
desires such a license. The net royalty rate for the previous
Windows Operating System Product shall be no more than the
average royalty paid by the OEM for such Product prior to the
release. The OEM shall be free to market Personal Computers in
which it preinstalls such an Operating System Product in the same
manner in which it markets Personal Computers preinstalled with
other Windows Operating System Products.
4. Internal Antitrust Compliance. This section shall remain in effect
throughout the term of this Final Judgment, provided that, consistent with
section 2.e, this section shall not apply to the Applications Business after
the Implementation of the Plan.
a. Within 90 days after the effective date of this Final Judgment,
Microsoft shall establish a Compliance Committee of its corporate
Board of Directors, consisting of not fewer than three members of
the Board of Directors who are not present or former employees of
Microsoft.
b. The Compliance Committee shall hire a Chief Compliance
Officer, who shall report directly to the Compliance Committee and
to the Chief Executive Officer of Microsoft.
c. The Chief Compliance Officer shall be responsible for
development and supervision of Microsoft's internal programs to
ensure compliance with the antitrust laws and this Final Judgment.
d. Microsoft shall give the Chief Compliance Officer sufficient
authority and resources to discharge the responsibilities listed herein.
e. The Chief Compliance Officer shall:
i. within 90 days after entry of this Final Judgment, cause to
be delivered to each Microsoft officer, director, and
Manager, and each platform software developer and
employee involved in relations with OEMs, ISVs, or IHVs, a
copy of this Final Judgment together with additional
informational materials describing the conduct prohibited and
required by this Final Judgment;
ii. distribute in a timely manner a copy of this Final
Judgment and such additional informational materials to any
person who succeeds to a position of officer, director, or
Manager, or platform software developer or employee
involved in relations with OEMs, ISVs or IHVs;
iii. obtain from each officer, director, and Manager, and
each platform software developer and employee involved in
relations with OEMs, ISVs or IHVs, within 90 days of entry
of this Final Judgment, and for each person thereafter
succeeding to such a position within 5 days of such
succession, a written certification that he or she:
(1) has read, understands, and agrees to abide by
the terms of this Final Judgment; and
(2) has been advised and understands that his or her
failure to comply with this Final Judgment may result in
conviction for criminal contempt of court;
iv. maintain a record of persons to whom this Final
Judgment has been distributed and from whom, pursuant to
Section 4.e.iii, such certifications have been obtained;
v. establish and maintain a means by which employees can
report potential violations of this Final Judgment or the
antitrust laws on a confidential basis; and
vi. report immediately to Plaintiffs and the Court any
violation of this Final Judgment.
f. The Chief Compliance Officer may be removed only by the
Chief Executive Officer with the concurrence of the Compliance
Committee.
g. Microsoft shall, with the supervision of the Chief Compliance
Officer, maintain for a period of at least four years the e-mail of all
Microsoft officers, directors and managers engaged in software
development, marketing, sales and developer relations related to
Platform Software.
5. Compliance Inspection. This section shall remain in effect throughout
the term of this Final Judgment.
a. For purposes of determining or securing implementation of or
compliance with this Final Judgment, including the provisions
requiring a plan of divestiture, or determining whether this Final
Judgment should be modified or vacated, and subject to any legally
recognized privilege, from time to time:
i. Duly authorized representatives of a Plaintiff, upon the
written request of the Assistant Attorney General in charge of
the Antitrust Division of the United States Department of
Justice, or the Attorney General of a Plaintiff State, as the
case may be, and on reasonable notice to Microsoft made to
its principal office, shall be permitted:
(1) Access during office hours to inspect and copy or,
at Plaintiffs' option, demand Microsoft provide copies
of all books, ledgers, accounts, correspondence,
memoranda, source code, and other records and
documents in the possession or under the control of
Microsoft (which may have counsel present), relating
to the matters contained in this Final Judgment; and
(2) Subject to the reasonable
convenience of Microsoft and
without restraint or interference
from it, to interview, either
informally or on the record, its
officers, employees, and agents,
who may have their individual
counsel present, regarding any
such matters.
ii. Upon the written request of the Assistant Attorney
General in charge of the Antitrust Division of the United
States Department of Justice, or the Attorney General of a
Plaintiff State, as the case may be, made to Microsoft at its
principal offices, Microsoft shall submit such written reports,
under oath if requested, as may be requested with respect to
any matter contained in this Final Judgment.
iii. No information or documents obtained by the means
provided in this section shall be divulged by a representative
of a Plaintiff to any person other than a duly authorized
representative of a Plaintiff, except in the course of legal
proceedings to which the Plaintiff is a party (including grand
jury proceedings), or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
iv. If at the time information or documents are furnished by
Microsoft to a Plaintiff, Microsoft represents and identifies in
writing the material in any such information or documents to
which a claim of protection may be asserted under Rule
26(c)(7) of the Federal Rules of Civil Procedure, and
Microsoft marks each pertinent page of such material,
"Subject to claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure," then 10 calendar days
notice shall be given by a Plaintiff to Microsoft prior to
divulging such material in any legal proceeding (other than a
grand jury proceeding) to which Microsoft is not a party.
6. Effective Date, Term, Retention of Jurisdiction, Modification.
a. This Final Judgment shall take effect 90 days after the date on
which it is entered; provided, however that sections 1.b and 2
(except 2.d) shall be stayed pending completion of any appeals from
this Final Judgment.
b. Except as provided in section 2.e, the provisions of this Final
Judgment apply to Microsoft as defined in section 7.o of this Final
Judgment.
c. This Final Judgment shall expire at the end of ten years from the
date on which it takes effect.
d. The Court may act sua sponte to issue orders or directions for
the construction or carrying out of this Final Judgment, for the
enforcement of compliance therewith, and for the punishment of any
violation thereof.
e. Jurisdiction is retained by this Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for such further orders or directions as may be necessary or
appropriate for the construction or carrying out of this Final
Judgment, for the modification of any of the provisions hereof, for
the enforcement of compliance herewith, and for the punishment of
any violation hereof.
f. In accordance with the Court's Conclusions of Law, the plaintiff
States shall submit a motion for costs and fees, with supporting
documents as necessary, no later than 45 days after the entry of this
Final Judgment.
7. Definitions.
a. "Agreement" means any agreement, arrangement, alliance,
understanding or joint venture, whether written or oral.
b. "Application Programming Interfaces (APIs)" means the
interfaces, service provider interfaces, and protocols that enable a
hardware device or an application, Middleware, or server
Operating System to obtain services from (or provide services in
response to requests from) Platform Software in a Personal
Computer and to use, benefit from, and rely on the resources,
facilities, and capabilities of such Platform Software.
c. "Applications Business" means all businesses carried on by
Microsoft Corporation on the effective date of this Final Judgment
except the Operating Systems Business. Applications Business
includes but is not limited to the development, licensing, promotion,
and support of client and server applications and Middleware (e.g.,
Office, BackOffice, Internet Information Server, SQL Server, etc.),
Internet Explorer, Mobile Explorer and other web browsers,
Streaming Audio and Video client and server software, transaction
server software, SNA server software, indexing server software,
XML servers and parsers, Microsoft Management Server, Java
virtual machines, Frontpage Express (and other web authoring
tools), Outlook Express (and other e-mail clients), Media player,
voice recognition software, Net Meeting (and other collaboration
software), developer tools, hardware, MSN, MSNBC, Slate,
Expedia, and all investments owned by Microsoft in partners or joint
venturers, or in ISVs, IHVs, OEMs or other distributors,
developers, and promoters of Microsoft products, or in other
information technology or communications businesses.
d. "Bind" means to include a product in an Operating System
Product in such a way that either an OEM or an end user cannot
readily remove or uninstall the product.
e. "Business" means the Operating Systems Business or the
Applications Business.
f. "Communications Interfaces" means the interfaces and protocols
that enable software installed on other computers (including servers
and handheld devices) to interoperate with the Microsoft Platform
Software on a Personal Computer.
g. "Covered OEM" means one of the 20 OEMs with the highest
volume of licenses of Windows Operating System Products from
Microsoft in the calendar year preceding the effective date of the
Final Judgment. At the beginning of each year, starting on January 1,
2002, Microsoft shall redetermine the Covered OEMs for the new
calendar year, based on sales volume during the preceding calendar
year.
h. "Covered Shareholder" means a shareholder of Microsoft on
the date of entry of this Final Judgment who is a present or former
employee, officer or director of Microsoft and who owns directly or
beneficially more than 5 percent of the voting stock of the firm.
i. "Default Middleware" means Middleware configured to launch
automatically (that is, by "default") to provide particular functionality
when other Middleware has not been selected for this purpose. For
example, a default browser is Middleware configured to launch
automatically to display Web pages transmitted over the Internet or
an intranet that bear the .htm extension, when other software has not
been selected for this purpose.
j. "End-User Access" means the invocation of Middleware
directly or indirectly by an end user of a Personal Computer or the
ability of such an end user to invoke Middleware. "End-User
Access" includes invocation of Middleware by end users which is
compelled by the design of the Operating System Product.
k. "IHV" means an independent hardware vendor that develops
hardware to be included in or used with a Personal Computer.
l. "Implementation of the Plan" means full completion of all of the
steps described in section 1.c.
m. "Intellectual Property" means copyrights, patents, trademarks
and trade secrets used by Microsoft or licensed by Microsoft to
third parties.
n. "ISV" means any entity other than Microsoft (or any subsidiary,
division, or other operating unit of any such other entity) that is
engaged in the development and licensing (or other marketing) of
software products intended to interoperate with Microsoft Platform
Software.
o. "Manager" means a Microsoft employee who is responsible for
the direct or indirect supervision of more than 100 other employees.
p. "Microsoft" means Microsoft Corporation, the Separated
Business, the Remaining Business, their successors and assigns
(including any transferee or assignee of any ownership rights to,
control of, or ability to license the patents referred to in this Final
Judgment), their subsidiaries, affiliates, directors, officers, managers,
agents, and employees, and 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.
q. "Middleware" means software that operates, directly or through
other software, between an Operating System and another type of
software (such as an application, a server Operating System, or a
database management system) by offering services via APIs or
Communications Interfaces to such other software, and could, if
ported to or interoperable with multiple Operating Systems, enable
software products written for that Middleware to be run on multiple
Operating System Products. Examples of Middleware within the
meaning of this Final Judgment include Internet browsers, e-mail
client software, multimedia viewing software, Office, and the Java
Virtual Machine. Examples of software that are not Middleware
within the meaning of this Final Judgment are disk compression and
memory management.
r. "Middleware Product" means
i. Internet browsers, e-mail client software, multimedia
viewing software, instant messaging software, and voice
recognition software, or
ii. software distributed by Microsoft that -
(1) is, or has in the applicable preceding year been,
distributed separately from an Operating System
Product in the retail channel or through Internet access
providers, Internet content providers, ISVs or OEMs,
and
(2) provides functionality similar to that provided by
Middleware offered by a competitor to Microsoft.
s. "Non-Covered Shareholder" means a shareholder of Microsoft
on the record date for the transaction that effects the transfer of
ownership of the Separated Business under Section 1.c.iii who is
not a Covered Shareholder on the date of entry of this Final
Judgment.
t. "OEM" means the manufacturer or assembler of a personal
computer.
u. "Operating System" means the software that controls the
allocation and usage of hardware resources (such as memory,
central processing unit time, disk space, and peripheral devices) of a
computer, providing a "platform" by exposing APIs that applications
use to "call upon" the Operating System's underlying software
routines in order to perform functions.
v. "Operating System Product" means an Operating System and
additional software shipped with the Operating System, whether or
not such additional software is marketed for a positive price. An
Operating System Product includes Operating System Product
upgrades that may be distributed separately from the Operating
System Product.
w. "Operating Systems Business" means the development,
licensing, promotion, and support of Operating System Products for
computing devices including but not limited to (i) Personal
Computers, (ii) other computers based on Intel x86 or competitive
microprocessors, such as servers, (iii) handheld devices such as
personal digital assistants and cellular telephones, and (iv) television
set-top boxes.
x. "Personal Computer" means any computer configured so that its
primary purpose is to be used by one person at a time, that uses a
video display and keyboard (whether or not the video display and
keyboard are actually included), and that contains an Intel x86,
successor, or competitive microprocessor, and computers that are
commercial substitutes for such computers.
y. "Plaintiff" means the United States or any of the plaintiff States
in this action.
z. "Plan" means the final plan of divestiture approved by the Court.
aa. "Platform Software" means an Operating System or
Middleware or a combination of an Operating System and
Middleware.
bb. "Remaining Business" means whichever of the Operating
Systems Business and the Applications Businesses is not transferred
to a separate entity pursuant to the Plan.
cc. "Separated Business" means whichever of the Operating
Systems Business and the Applications Businesses is transferred to
a separate entity pursuant to the Plan.
dd. "Technical Information" means all information regarding the
identification and means of using APIs and Communications
Interfaces that competent software developers require to make their
products running on any computer interoperate effectively with
Microsoft Platform Software running on a Personal Computer.
Technical information includes but is not limited to reference
implementations, communications protocols, file formats, data
formats, syntaxes and grammars, data structure definitions and
layouts, error codes, memory allocation and deallocation
conventions, threading and synchronization conventions, functional
specifications and descriptions, algorithms for data translation or
reformatting (including compression/decompression algorithms and
encryption/decryption algorithms), registry settings, and field
contents.
ee. "Timely Manner": disclosure of APIs, Technical Information
and Communications Interfaces in a timely manner means, at a
minimum, publication on a web site accessible by ISVs, IHVs, and
OEMs at the earliest of the time that such APIs, Technical
Information, or Communications Interfaces are (1) disclosed to
Microsoft's applications developers, (2) used by Microsoft's own
Platform Software developers in software released by Microsoft in
alpha, beta, release candidate, final or other form, (3) disclosed to
any third party, or (4) within 90 days of a final release of a
Windows Operating System Product, no less than 5 days after a
material change is made between the most recent beta or release
candidate version and the final release.
ff. "Windows Operating System Product" means software code
(including source code and binary code, and any other form in
which Microsoft distributes its Windows Operating Systems for
Personal Computers) of Windows 95, Windows 98, Windows
2000 Professional, and their successors, including the Windows
Operating Systems for Personal Computers codenamed
"Millennium," "Whistler," and "Blackcomb," and their successors.
_____________________
Thomas Penfield Jackson
U.S. District Judge
1. Definitions of capitalized terms are set forth in section 7, below.