IP: "commingling of code" is anticompetitive [seems to me that is what I testified on djf]

[David Farber <dave () farber net>]

> From: "Meeks, Brock (MSNBCi)" <Brock.Meeks () MSNBC COM>
> To: "'farber () cis upenn edu'" <farber () cis upenn edu>
> Subject: "commingling of code" is anticompetitive
> Date: Thu, 28 Jun 2001 11:15:33 -0700
> X-Mailer: Internet Mail Service (5.5.2653.19)
>
> Following up on Dan Gilmor's comments.
>
> Microsoft may have one a round here, not the fight.
>
> Look at this snippet from page 39 of the ruling on integrating the browser
> with Windows:
>
> In view of the contradictory testimony in the record, some
> of which supports the District Court's finding that Microsoft
> commingled browsing and non-browsing code, we cannot conclude
> that the finding was clearly erroneous. See Anderson
> v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (''If the
> district court's account of the evidence is plausible in light of
> the record viewed in its entirety, the court of appeals may not
> reverse it even though convinced that had it been sitting as
> the trier of fact, it would have weighed the evidence differently.'').
> Accordingly, we reject Microsoft's argument that we
> should vacate Finding of Fact 159 as it relates to the commingling
> of code, and we conclude that such commingling has
> an anticompetitive effect; as noted above, the commingling
> deters OEMs from pre-installing rival browsers, thereby reducing
> the rivals' usage share and, hence, developers' interest
> in rivals' APIs as an alternative to the API set exposed by
> Microsoft's operating system.



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