IP: micro-summary of the court of appeals decision

[David Farber <dave () farber net>]

> From: Chris Savage <chris.savage () crblaw com>
> To: "'farber () cis upenn edu'" <farber () cis upenn edu>
> Subject: RE: Post on MS
>
>
> > -----Original Message-----
> > From: David Farber [<mailto:dave () farber net>mailto:dave () farber net]
> > Sent: Thursday, June 28, 2001 1:31 PM
> > To: ip-sub-1 () majordomo pobox com
> > Subject: IP: Post on MS
> >
> >
> > If I read this right, MS still has a boat load of problems.
> > It looks like the appeal strick down the particular remedy but "found 
> merit
> > in some of the findings" . Should be a fun 12 months  or so.
>
> Dave,
>
> Here's a micro-summary of the court of appeals decision, which I just 
> finished reading:
>
> The appeals court held:
>
> 1.  The District Court's finding that MSFT has a monopoly in the 
> Intel-compatible operating system market is sustained.
>
> 2.  The District Court's finding that MSFT violated the antitrust laws (15 
> USC sec. 2) in attempting to sustain that monopoly against possible 
> inroads from Netscape and Java, in various ways, was sustained.  A few 
> aspects of MSFT's conduct were found to be justified.
>
> 3.  The District Court's finding that MSFT had illegally "tied" its 
> browser to it operating system was vacated and remanded for a more 
> detailed factual trial under a "rule of reason" analysis.  Here the 
> appeals court clarified some of its own somewhat muddled and in some 
> respects radical statements about the application of tying law to software 
> and other high-tech markets in an earlier case arising from MSFT's alleged 
> violations of an antitrust consent decree.
>
> 4.  The District Court's finding that MSFT had attempted to monopolize an 
> ill-defined "browser" market was reversed.
>
> 5.  The break-up remedy order was vacated.  The District Court should have 
> held a hearing on what to do; and, anyway, given that the grounds for 
> liability sustained on appeal were different from those the District Court 
> believed to exist, the remedy needs to be reconsidered anyway.
>
> 6.  Judge Jackson violated appropriate norms of judicial conduct and is 
> disqualified from further participating in the case, and retroactively 
> through and including the issuance of the order on remedy, which was 
> vacated in any event (see #5 above).  The Judge's extensive Findings of 
> Fact and Conclusions of Law stand, except as modified via normal appellate 
> considerations, as noted above.  This, of course, is an independent reason 
> for vacating the remedy order.
>
> So, to the extent that someone thought that the break-up order would 
> stand, this decision is good news for MSFT.  But to the extent someone 
> thought that MSFT would be exonerated and its handling of Netscape and 
> JAVA vindicated, this decision is bad news for MSFT.
>
> Chris Savage
> Cole, Raywid & Braverman, LLP
> tel. 202-828-9811  efax 703-991-1470
>
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