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17 Berkeley Tech. L.J. 273 (2002)
United States v. Microsoft Corp.

handle is hein.journals/berktech17 and id is 287 raw text is: SHERMAN ACT VIOLATIONS: MONOPOLIZATION: TYING UNITED STATES V. MICROSOFT CORP. By Samuel Noah Weinstein Microsoft's Windows operating system is the sun in the solar system of the information economy. With tens of millions of users worldwide, Windows is the most significant platform for continued software innova- tion. As Windows has matured, its interoperability has increased. Func- tions once considered distinct, such as disk de-fragmentation and memory management, have become part of the Windows system. While this inter- operability offers advantages to consumers, it also raises serious antitrust concerns. The most pressing worry is that Microsoft will use its monopoly power in operating systems to quash innovation in other software markets by integrating formerly competitive functions into Windows. This ten- sion, between the advantages of interoperability and the threat to competi- tion, was at the core of the D.C. Circuit's decision in United States v. Mi- crosoft. 1 The verdict in this case was much anticipated. This anticipation grew both out of Microsoft's unique position in the American economy, and out of a desire to see a clear resolution of the complicated antitrust issues im- plicated in the case. As to Microsoft's fate, despite some press reports painting the decision as a victory for the software king,2 the holding was a mixed result. Although the circuit court overturned both the breakup rem- edy and tying liability, remanding both for reconsideration, it firmly up- held liability for monopolization under section 2 of the Sherman Act.3 Mi- crosoft's real victories may have come later, when the Department of Jus- tice announced that it would drop the tying charge and no longer pursue the breakup of the company,4 and in the settlement agreement.5 © 2002 Berkeley Technology Law Journal & Berkeley Center for Law and Technology. 1. United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (Microsoft Il). For the sake of convenience, this Note refers to the 1998 D.C. Circuit decision as Micro- soft H. The more recent Microsoft litigation, encompassing both the 2000 district court decision and the 2001 D.C. Circuit decision, is referred to as Microsoft IL Microsoft I, the consent decree decision of 1995, plays only a minor role in this Note. 2. See, e.g., Microsoft Marches On, S.F. CHRON., June 29, 2001, at A24; John Hendren, Microsoft Ducks Bullet, Again Talks About Deal, SEATLE TIMES, June 29, 2001, at Al. 3. United States v. Microsoft Corp., 253 F.3d at 51. 4. Justice Department Informs Microsoft of Plans for Further Proceedings in the District Court, http://www.usdoj.gov/atr/public/pressreleases/2001/8981.htm (Sept. 6, 2001).

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